The problem of wrongful conviction is not new in judicial practice. It’s a well-known fact that the human factor in legal practice contributes most to the unlawful court decision and opinions, as sometimes it’s impossible to determine truth, especially in the cases with lack of evidence. Until recent times when there existed no technical and scientific methods, and merely the judicial procedures in courts and level of expertise were of a low quality the number of wrongfully convicted was great. Today when some expertise methods are available to criminologists the probability of wrongful conviction is reduced but such cases happen shocking public opinion about justice standards in the country.
Today it became possible to revise cases insisting on additional expertise as new scientific methods such as DNA analysis became available for criminologists and conclusions with the help of this technique draw a clear and distinct picture about the relationship of a particular individual to a specific case.
Today it’s agreed that there are many elements which contribute to wrongful convictions: non-disclosure of evidence by police, fabrication of evidence, lack of evidence, personal attitude towards investigation and poor judicial expertise on the hand with psychological pressure from the side of police or the court officials. Combined these elements lead to the violation of justice principles and miscarriage of justice. There is some well-known example in judicial practices of Canada of wrongful conviction, yet I would like to stop on the two of them which were recently highlighted by press: the case of David Milgaard and the case of Mr. Kaglick
The wrongful conviction of David Milgaard in the murder of nurse Gail Miller was one of the most scandal episodes in judicial practice of Canada:
“David Milgaard was charged with the rape and stabbing death of Saskatchewan nursing assistant Gail Miller. He spent almost 23 years in jail for a crime he did not commit. He subsequently received a $10 million compensation package in 1999. In February 2004, Mr. Justice Edward MacCallum was appointed to head a public inquiry into the wrongful conviction of David Milgaard. The Commission of Inquiry into the Wrongful Conviction of David Milgaard began hearing in January 2005. The mandate of the Commission of Inquiry is not to point fingers or allocate blame to any person or organization.
The focus of the inquiry is to inquire into and report on the investigation into the death of Gail Miller and the criminal proceedings against David Milgaard and his subsequent wrongful conviction on the charge of murder. The commission will also seek to determine whether the investigation should have been re-opened.” (from Wrongful Conviction of David Milgaard (Chapter 10, page 323 of Canadian and International Law)
David Milgaard was born in 1954 and was sentenced to life in prison at the age of 16 in 1970, only because he looked like a potential murderer. Milgaard and his friends who were hippies were taking a road trip to Canadian prairies when Gail Miller was murdered in Saskatoon. Their road trip included thefts and drug use, and after being arrested in May 1969, Milgaard was sent back to Saskatchewan where he was accused of the murder. January 31, 1970, David Milgaard was sentenced to life in prison.
There were lots of reasons, which could present Milgaard as a potential murderer; he was a troubled child since early years. It was witnessed by his family and his teachers. He even was removed from kindergarten as he had a negative influence on other kinds and did not accept the authority of elder people. At the age of 13, David was placed in a psychiatric clinic. So he looked like a perfect murderer and rapist with abnormal psychics and problematic biography. Gail Miller was found murdered and raped after she died early in the morning January 31, 1969. There were nearly no clues left, and police lacked evidence.
The similar case is a wrongful conviction of Mr. Kaglik who was accused of rape of his niece and spent five years in jail; he was convicted because of lack of evidence.
“Mr. Kaglik was a 35-year-old plumbing and heating contractor living in Inuvik, N.W.T., when he was convicted in 1992 of raping his 37-year-old niece. After serving more than a year of a four-year sentence, he was hauled back before the courts for a second trial after his niece leveled more rape charges. Another six years were added on to his sentence, and he served 52 months before he was finally cleared.”
In both cases of Kaglik and Milgaard, there were violated three chapters of Canadian Charter of Rights and Freedoms. First, it was a violation of section 15, which states that every citizen is equal before and under the law and that he has a right for equal protection, without discrimination on the base of race, ethnicity, religion, sex, age, and disabilities. In both cases of Kaglik and Milgaard, this section was violated.
Second, it was a violation of Chapter 11, which stated that accused is to be presumed innocent until unproven guilty according to law. In both cases, the arrest was made on the base of the presumption of guiltiness, as police in both cases have no other versions but version that there existed only one suspected on the base of false evidence and unclear clues. Also, it happens that under the pressure witnesses give false testimony to remove suspicion from themselves.
In addition, the court ignored another very important principle of justice stated in Section 7: “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except by the principles of the fundamental justice.” As the freedom of both Midgard and Keglick was deprived of the principles of fundamental justice as their cases were not investigated properly and their rights for freedom were taken without evidence required by the law.
The triumph of justice in both cases became available only because of DNA expertise, which is widely used nowadays. In another example, both wrongful convictions would be undiscovered.
As we can see in both cases the rights of citizens were violated but the state, by the institution, which has to guarantee our safety and execution of all rights and liberties. Instead of providing protection and providing fair investigation, Canada in the face of court behaved like a criminal and sentenced innocent citizens to incarceration. In this matter, it’s the most shameful outcome of the justice process. Criminologists, lawyers, and judges who supervised these case could not even imagine to what sufferings were these two innocent persons subjected in prison; the place was not only freedom is restricted but basic human rights are violated.
Also, such situation had only worsened the attitude of these two persons to the judicial system and justice in general in Canada. Today it’s a well-known fact that their conviction was fabricated because of the absence of clear, direct evidence and it was based only on “tunnel vision” which is unfortunately widely used on practice nearly in all democratic countries of the world.
Concluding it’s important to outline that any wrongful conviction of an innocent citizen has to be compensated from the side of the state, as it’s the most inhuman and unjust attitude of the country to its citizens. Even though that Milgaard got compensation of $ 10 million and Keglick got $1.1 million for five years spent in jail, financial compensation cannot wholly compensate physical and moral damage caused to those persons. Today it’s agreed by lawyers that the following practices will reduce the number of wrongful conviction:
“The appropriate legislative bodies should enact legislation requiring the financial compensation and socioeconomic integration of wrongfully convicted persons, including both monetary payment (based on a formula prescribed by the bill) and the provision of social services to assist in the reintegration process.
In recognition of the possibility of error, those jurisdictions that permit the death penalty should abolish it and replace it with life sentences for those convicted of aggravated murder or equally heinous crimes. It would enable the state to release and compensate the wrongfully convicted upon the discovery of the error.”
Also, some criminologists agree that it’s tough to investigate sexual crimes on the base of false evidence as: “It is increasingly difficult for anyone accused of sexual assault to exercise a citizen’s fundamental right to make full answer and defense to a criminal charge.” (Edward Greenspan) The requirement of corroboration has been abolished. And, as they believed in Salem, there is a widespread assumption that girls do not lie about such things.” (from False charges http://www.fathers.ca/false_charges_2.htm)
These two cases are very demonstrative, but nevertheless there exist series of less significant cases of wrongful conviction in judicial practice nowadays, which still cause a lot of harm for the reputation and good name of innocent citizens, which results in distrust from the side of their surrounding, alienation and hardships created merely by a stereotype of “criminal”.
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