Canada: Acquitted man demands justice reforms

Crooked police plus faulty eyewitness testimony

Anthony Hanemaayer's acquittal yesterday for a 1987 sex attack committed by Paul Bernardo exposed what his lawyers call a multitude of problems plaguing Canada's justice system, including the use of dangerous eyewitness evidence. Hanemaayer's lawyers hope his wrongful conviction and the 20 years he spent paying for Bernardo's crime will translate into compensation for their client and a police investigation into whether the serial killer committed other offences, including the 1990 disappearance of Elizabeth Bain. They also hope the case will change how eyewitness testimony is used, considered the leading cause of wrongful convictions. In the U.S., "eyewitness identification evidence" has played a role in about 75 per cent of wrongful convictions overturned through DNA testing.

In Canada, a hard-hitting report came seven years ago on the case of Thomas Sophonow, who was wrongly convicted twice of a 1981 murder. Few of its recommendations to reduce miscarriages of justice from the use of this evidence have been put into place. "Anthony Hanemaayer's wrongful conviction could happen just as easily in 2008 as it did back in 1989," lawyer James Lockyer said after Hanemaayer emerged with his parents into the sun outside the Ontario Court of Appeal to enjoy his first moments as a finally free man.

"I'm very happy that it's over," said Hanemaayer, a soft-spoken 40-year-old roofer who appeared close to tears, including when asked about his parents, Peter and Wilma. "If I didn't have them," he said, "I'd be lost."

Hanemaayer was accused of being the knife-wielding assailant who broke into a Scarborough house through a basement window sometime before dawn on Sept. 29, 1987, crept upstairs to a 15-year-old girl's bedroom and threatened to kill her if she didn't stay quiet. Startled by the victim's mother, the attacker ran out the door. "This was a particularly nasty crime and it took no imagination to know what the intruder's intentions were," Lockyer told an appeal court panel headed by Justice Marc Rosenberg, who expressed profound regret for the "devastating effect" the case had on Hanemaayer and his family.

Hanemaayer said it's impossible to reduce the ordeal to dollars. Nineteen at the time of his arrest and newly married, he lost his wife and expectations for the future. He had been working at a construction site in the neighbourhood, when he was identified by the victim's mother as the attacker. Her honest but mistaken observation was the key component of the Crown's case.

Hanemaayer felt certain her testimony would put him behind the walls of a penitentiary for at least six years. Part way through his 1989 trial, he changed his pleas to guilty and was sentenced to two years less a day for breaking and entering and assault with a weapon. "It happens more often than you think, in serious cases with a defendant who swears he's innocent," said Frank Addario, president of the Criminal Lawyers' Association, "They cave in and plead guilty for the certainty of a reduced sentence."

Lockyer said both Hanemaayer and the victim were let down by the justice system. Notes made by the prosecutor at Hanemaayer's preliminary hearing indicate she recognized the weakness of her case was that it was based on one woman who had at most a 60-second glimpse of the attacker, the appeal panel was told. On the other hand, the prosecutor considered it a plus that the victim's mother was very confident.

That, in itself, is a problem. Elizabeth Loftus, a psychologist and noted memory expert from the University of Washington, told the public inquiry into Sophonow's case that there's little connection between an eyewitness's confidence level and accuracy – but confident eyewitnesses have a powerful effect on jurors.

Hanemaayer's trial lawyer seemed awed by the testimony of the victim's mother and only too willing to arrange for his client to enter a guilty plea, Lockyer said. "We didn't have money for a top-notch lawyer," said Peter Hanemaayer.

Bernardo made an overture to police through his lawyer to discuss other crimes in 2006. He described the 1987 attack in detail to two Toronto police detectives. Although police met with Hanemaayer soon after the Bernardo interview and told him they didn't believe he'd committed the crime after all, they never mentioned they'd spoken with the serial killer, let alone that he'd confessed.

Hanemaayer only learned that last year, when the Association in Defence of the Wrongly Convicted offered to take up his case. Were it not for that, "I probably would have gone to the grave" blamed for Bernardo's crime, he said. The association had been given the transcript of the Bernardo interview as part of the evidence the Crown turned over to the defence for the trial of Robert Baltovich, Bain's former boyfriend, who had been scheduled to stand trial a second time this past spring for her murder.

Acquitted in April after the Crown admitted it had no case against him, Baltovich was also in court yesterday, supporting Hanemaayer, and echoed calls for an inquiry.

Original report here




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