FALSE CONFESSION NOT ALLOWED FOR

False confessions are common. This should have been an easy one to pick up. Failing to do so allowed the real criminal to escape justice

He was an awkward, confused 23-year-old who had confessed to a string of sexual assaults that had terrorized the city. A slam-dunk case for the prosecution. But at the hearing to decide his sentence, a probation officer told the court about something odd. She mentioned that Simon Marshall tended to tell tall tales, just to please people. At one point, he even denied his crimes, only to change his story again. "He needs the approval of others so much, or to get their attention, that he often makes up stories," the officer testified.

It was a provocative observation. However, on that day, eight years ago in Quebec City, not one person in the courtroom asked whether the wrong man was sitting in the prisoner's box. This is the story of a mentally troubled man who spent five years in prison for someone else's crimes. In an embarrassing episode for police and other officials, a review of Mr. Marshall's case cleared him last month of the 13 charges to which he pleaded guilty in 1997.

Yesterday, after just a 20-minute hearing, the Quebec Court of Appeal quashed Mr. Marshall's convictions after the Crown conceded that it now considers his confessions unreliable. Mr. Marshall paid a stiff price for this miscarriage of justice. While in prison, other inmates sodomized him and scalded him with boiling water.

After his release, "he was in a catatonic state," his mother, Manon Beaudoin, said in an interview. "He hears voices. He won't talk." Mr. Marshall is under psychiatric care in a hospital. The actual offender was never found.

A review of hours of recordings in his court case raises questions about the behaviour of officials who dealt with Mr. Marshall: Police investigators said his confessions were credible because he knew details that hadn't been made public. But many of the details they cited had been reported in the media. There was a sperm sample in one of the assaults for which Mr. Marshall confessed. It wasn't tested because the charges were withdrawn in that incident. It later turned out it wasn't his DNA.

A psychiatrist declared Mr. Marshall fit to stand trial in 1997, saying he reached his conclusion within 10 minutes of discussion with him. By 2004, the court heard that as early as 1992, Mr. Marshall had been diagnosed with schizophrenia. His parents say he is mentally retarded. The defence lawyer, Jorge Armijo, presented no psychiatric counter-expertise or arguments to support Mr. Marshall's mental incapacity. Nor did Mr. Armijo invoke a defence of mental disorder.

At the time of his arrest, police and municipal politicians were relieved that the so-called "Sainte-Foy Attacker" had been caught. During the 1990s, a sex predator terrorized the Quebec City suburb of Sainte-Foy. There were no rapes but the predator would grab women from behind, cover their eyes, and then perform oral sex and lewd acts on them.

Around 4 a.m., on Jan. 3, 1997, police were called to a Subway restaurant because patrons tried to beat up Mr. Marshall after catching him peeping in the women's toilets. Constables Nathalie Blais and Roger Ferland testified that they read Mr. Marshall his rights and arrested him for voyeurism. He told them he didn't need a lawyer. Mr. Marshall's hat was torn in the scuffle. He asked: "The lawyer, could he do something for my hat?" "No, no, the lawyer is for you, not for your clothing," Constable Ferland said he told Mr. Marshall.

In Canadian law, an accused who is fit to stand trial should be able to instruct his lawyer and understand the nature of the court proceedings. Here, Mr. Marshall was mixed up about the role of a lawyer. "I'm not a pedophile," he told the two officers, alluding to an insult the restaurant clients hurled at him. Whatever he did, it was with consenting women, he said. Intrigued, Constable Ferland began prodding him for details. As they took him to the station, they drove by a wooded area, the site of one of the sexual assaults. Constable Blais testified that Constable Ferland told Mr. Marshall: "Are there places in town where you remember there were assaults?" Mr. Marshall pointed at the wooded area, but said the incident had been consensual.

Constable Blais found his willingness to confess unsettling. "I thought: 'My, is he making this thing up?' He's saying so much. Is it to brag and he's having fun telling it, or is it really true?" she said in court.

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