I had a lively discussion this week with a prominent trial lawyer from western New York about the differences in the systems of justice in our respective countries.
''You have those public inquiries for miscarriages of justices,'' he stated admiringly. ''We don't have those.''
I agreed and pointed out that in America there are Congressional hearings for athletes using steroids but never any legislative inquiry to address the plight of a single wrongful conviction.
It is a simple matter of priorities. In America it is more important to determine if Roger Clemens' illustrious baseball career is tainted by steroids than confront the dim prospect that innocent people may have been wrongfully sentenced to death.
Stephen Bright, the president and senior counsel for the Southern Center for Human Rights, was asked by Slate Magazine (April 10) to suggest his ideal candidate to replace Justice John Paul Stevens on the Supreme Court.
Bright highlighted the need to select someone with a diversity of experience noting that ''[t]he current members of the court have no real sense of the injustices and cruelty of the criminal justice system, the complete absence of any semblance of an adversary system in many parts of the country, the inability of the poor to get their day in court in any kind of case.''
One of the glaring deficiencies of the adversarial system in the U.S. is a discovery process that inhibits timely and full disclosure of the prosecution's case. During the Conrad Black trial, Ed Genson, one of Black's attorneys, lamented his experience of obtaining statements from the grand jury a month or two before trial and then burying himself in preparation every day, including working on weekends and late into the night.
Disclosure reform appears to be currently underway as the Justice Department issued guidance memos at the beginning of this year relating to broader and more timely disclosure. However, Department of Justice officials still oppose the practice of open-file discovery, noting that witness safety and national security are primary concerns about instituting a more open disclosure policy. (The Blog of Legal Times, April 12)
Canada remains light years ahead of its southern border in mandating disclosure and discovery by the prosecution. It flows directly from the first wrongful conviction public inquiry in this country, the Donald Marshall Inquiry. Non-disclosure was discovered to be a key factor in the unfortunate conviction and imprisonment of an innocent man. The commission concluded that ''anything less than complete disclosure by the Crown falls short of decency and fair play.''
The Donald Marshall Inquiry was cited by the Supreme Court of Canada in the landmark case of Stinchcombe in the early 1990s which decided that the prosecution has a legal duty of fairness to disclose all relevant information. It was recognized that the ability to make full answer and defence helps ensure that the innocent are not convicted. The Court established an immutable principle that ''the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.''
The Supreme Court also clarified that defence counsel lacks a corresponding duty to disclose any part of its case or to assist the prosecution. It is entirely proper for the defence ''to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.''
Turning then to the Michael Bryant case, one of the questions that may linger for some is the reason Bryant's counsel chose to turn over her defence file unconditionally to the Crown. The question was posed to Marie Henein and her response makes it abundantly clear that the Bryant case isn't likely to set a trend for reciprocal disclosure by the defence:
''The decision to disclose our full defence to prosecutorial and police scrutiny before the case had even started is an extremely rare one. There is a good reason that in law, there are no reverse disclosure obligations, not the least of which is the absolute right of every person to have the prosecution prove the case against them. My decision to disclose in this case was motivated by my unequivocal confidence that an examination of the objective facts could point only to one conclusion -- innocence.''
email: skurka@crimlaw.org
