Newsreal Archives/Critic' Corners
JUDICIAL CONFLICT OF INTEREST
EDITORIAL - A Broken System
On Wednesday, October 27, 2010 IVAN HENRY acquitted of rapes after 26 years in jail
Henry's Time Was Stolen
In the view of justice4you, had Mr. Justice John Bouck
not been deceased in January of 2010, the B.C. Court of Appeal. run by Mr. Chief Justice LANCE FINCH
known to have a record of seriously damaging self-represented and label them vexatious, would have restrained his court in saying anything negative about former judge Bouck's judgment. For example, the three panel of judges, refrained in saying how the Crown Prosecutor conducted himself to obtain a conviction at any costs.
This website is for those like Ivan Henry who get wrongfully convicted by the courts and tortured
, because they are self-represented, as Ivan Henry was.
Per Capita, Canada has more wrongful convictions than the United States and that is nothing to brag about. The court, like an abusive parent, decided whether Henry's torture, after 26 years in prison was now enough and evidently the consesus was to hire Leonard Daoust to come to Henry's rescue.
It is without a doubt that Henry was not well assisted by members of the bar and the judicary.
Ivan Henry, when he was in front of the BC Supreme Court, after the BC Court of Appeal ruling, was asked by a journalist on his day of being a free man, "What about your first original Lawyers
", and he said, "It's like being in a boat without oars"
Now Henry has a flock of lawyers, including Cameron Ward
, hovering around him, waiting for their jack pot to come their way from the B.C. Attorney General, which likely will be well above $10 Million Dollars.
So far, the news media has not criticized any of the lawyers involved in the conviction of Ivan Henry. Henry is the only one who made a statement about lawyers, as the media, controlled by the legal profession, are mute on the issue.
In truth, the bar, the judiciary, the government and the media all played a role in seeing that Ivan Henry would be in prison for 26 years without parole. Henry was fair game and still is since the lawyers are now hovering over him, this time for a bigger pay cheque.
Please read on regarding Ivan Henry and the over-zealot prosecutor, Michael Luchenko, who prosecuted Henry without playing by the rules.
While, the Ivan Henry
case was played out in the Vancouver courts, the Media, followed the orders of their lawyers by keeping silent-- a moment of convergence in the Media industry shall we say -- not leaking the name of the crown prosecutor Michael Luchenko
who did the dance with Judge John Bouck
and convicted Mr. Ivan Henry in 1982 for 10 counts of sexual assault.
The Media failed to mention, while reporting on Henry's case, Luchenko
's name until the weekend paper on January 17, 2009, (scroll down) and when Luchenko's name was finally mentioned, the paper appeared reluctant in stating the facts on how Luchenko prosecuted Henry. However if the Media would have been really interested in the story behind the story, the Vancouver Sun
ought to have asked the question on how did Michael Luchenko
conducted the case.
And the paper would soon have learned that what Luchenko
was successful in doing with Ivan Henry
in 1982, his counterpart in Alberta Crown prosecutor Craig Charles Krieger
was cited for in 2002, in the case of the Law Society of Alberta vs Craig Charles Krieger
the Law Society of Alberta vs Craig Charles Krieger SCC
The attorney general of Alberta protected Krieger as best he could, and Krieger still is a prosecutor in Alberta courts.
In LAWYERS AND ETHICS
, Professional Responsibility and Discipline
by Gavin MacKenzie
of the Ontario Bar, says in his book that,
The ethical principles that govern prosecutors are all variations of the same rule of professional conduct: the prosecutor's duty is not to seek a conviction, but to see that justice is done.
(C.B.A. Code, chapter 1X, commentary 9;British Columbia rules, ch. 8, rule 18).
Norman Schwartz, a former prosecutor, describes the tension that prosecutors must try to resolve:
"The advocate in you says you should do everything you can to convict someone you believe is guilty. Yet you have a duty to do justice, to help the other side, even to tear down your own case. The potential is there for terrible conflict
". (James B. Stewart, The Prosecutors [New York: Simon & Schuster, 1987], p. 225)
The author also says that,
"Not all prosecutors succeed in resolving that conflict
"innocent until proven guilty
" business doesn't hold with prosecutor
," says an American assistant district attorney, featured in james Mills's book, The Prosecutor
Code of Professional Conduct for lawyers
"Prosecutors also have a duty, even prior to Stinchcombe, to make timely disclosure of all relevant facts, whether tending to show guilt or innocence
However, the only time prosecutors abide by the Code of Professional Conduct
is when the accused is one of their own and this would include members of organized crime.
So who is the real hero
behind the the Press Coverage stories?
It would appear the real hero is Michael Luchenko
, who, to this day, is being protected first by the BC Attorney General and second, by the Media, who knows or ought to know that Luchenko acted beyong the scope of his duties, when he failed to seek justice for the victims and basically for the country.
Perhaps the Media was told to be as easy as possible on Luchenko
, in the hope that Michael Luchenko
could go back practicing openly again when the story of Ivan Henry
is passed by the readers of Canadian papers.
It also begs the question as to whether the Media is covering up for Michael Luchenko
, who in 2006 was given the permission by the A-G to maliciously prosecute Natalie Gettliffe
, the daughter in law of Michael Luchenko's lover.
Perhaps the Media wants the public to believe, for the sake of the bar and the judiciary, that Ivan Henry
's fate may have been different, had he been represented by counsel, however anyone whose gone through the court system knows that with or without a lawyer, there is a dirty little old secret called pleas of guilt, even when the accused is innocent.
Basically, those who do not follow the advise of their defence lawyers by pleading guilty for crimes they did not commit or for pleading for lesser charges, do not get good representation and as a result not only does it cost the accused tons of money, the accused ends up at the end with a criminal conviction.
In the case of Ivan Henry
, he was sentenced in jail for life for sexual assault. The attitude of the Crown and the Judges in BC is, "If you didn't want to plead guilty, the punishment is, many years in jail."
The following article is an example of how Ivan Henry
was doomed from the start, no matter whether he would have had a lawyer acting for him or not because the judge, John Bouck
, the Crown Prosecutor Michael Luchenko
, The Vancouver Police
and the community, wanted to see a conviction and Ivan Henry seemed like the right guy at the time.
Plea Bargains for prosecutors is like speeding tickets for police
Case Puts Focus on Justice System's 'Dirty Little Secret'
Globe and Mail
January 14, 2009 at 4:56 AM EST
In light of overwhelming evidence from then-respected pathologist Charles Smith, lawyer Robert Graydon knew that his client, Richard Brant, would be a fool to pass up a Crown offer of just six months behind bars for the shaking death of his two-month-old baby, Dustin.
However, there was one serious obstacle to Mr. Brant accepting the plea bargain. The mourning father insisted he had done absolutely nothing to cause Dustin's death - in direct contradiction of findings by the now-discredited Dr. Smith.
After several anguished conversations with Mr. Graydon - now an Ontario Court judge - Mr. Brant said he would concede to having jostled Dustin accidentally during a physical struggle with his wife, according to an affidavit filed in the Ontario Court of Appeal.
By asking the appeal court last week to reopen and overturn his 10-year-old conviction, Mr. Brant also reopened a troubling debate about the role lawyers play in arranging guilty pleas for clients who may be innocent. In Mr. Brant's case, it is very hard to see how his lawyer could have known whether his client was innocent, but he did know the strength of the evidence against him. Judge Graydon declined to be interviewed on the topic.
"I think it's a dirty little secret," University of Windsor law professor David Tanovich, a veteran defence lawyer, said of the role of defence counsel in such cases. "Very few people talk about it."
Michael Code, a defence lawyer who teaches ethics at the University of Toronto law school, said lawyers cannot be party to a client they know is innocent pleading guilty, yet they often feel a tremendous temptation to help a client procure a light sentence. "It is the hidden underbelly of the justice system, and it does need to be talked about and dragged into the open," Prof. Code said.
Experts say two categories of defendant engage in these so-called pleas of convenience. The first are those who face testimony from a virtually unassailable Crown witness, such as Dr. Smith. The second are those who are denied bail pending a trial. "They don't want to spend the time in the cramped and overcrowded cells," Prof. Tanovich said. "They want to plead guilty because they can get out right away with time served."
Andras Schreck, a Toronto defence lawyer, said many defendants jump at the chance to end proceedings and go home. "How many people are going to say no to that?" he asked. "I would think that it probably happens hundreds of times a day."
Mr. Schreck said the solution to these pleas of convenience is simple: "Just don't deny bail as often."
For an accused person facing a serious charge, the worry of being found guilty after a trial provides a powerful inducement to accept a bargain-basement offer from the Crown.
Typically, defence lawyers convey these offers using "a whole bunch of nods and winks" in order to skirt ethical boundaries, Prof. Code said: "It won't be a proper discussion. It will be a plea of convenience in disguise."
"Personally, I never do it," Mr. Schreck said. "But some other lawyers will say: 'Look, you really should plead guilty. I'm not going to act for you if you don't.' "Notwithstanding two significant high-court decisions that brushed over the issue, the courts have remained strangely silent about the role of lawyers.
In a 2003 case - R. v. Taillefer and Duguay
- the Supreme Court set aside a guilty plea in a murder case in which one of the defendants pleaded guilty to manslaughter just to end the legal proceedings. "Yet remarkably, nothing was said about whether this was ethical or not," Prof. Code said.
In a 1995 ruling in the case of R. v. S. K
., the Ontario Court of Appeal stressed that defence counsel must be careful not to "mislead" the courts about plea bargains, but it went no further.
Mr. Schreck said the role of Crown prosecutors also cries out for scrutiny. "It happens far too often, where the Crown realizes their case is weak and, instead of withdrawing the charge, that they try to induce a guilty plea," he said. "If you do have a case, don't go offering a ridiculously lenient sentence."
In Mr. Brant's case, his ultimate six-month sentence for aggravated assault was a far cry from the six- to eight-year manslaughter sentence he would likely have gotten had he lost at trial.
In an affidavit to the Court of Appeal last week, Mr. Brant recalled: "For many months, Mr. Graydon told me it was in my best interests to plead guilty. He said he would tell the court that Dustin's injuries had been caused during a struggle with Mary on the Friday evening. He urged me to accept the offer."
In fact, Mr. Brant emphasized, he did nothing that could have caused Dustin's death. "There are no easy answers to this," Mr. Schreck said. "But right now, we are all turning a blind eye to the problem - which is not a good starting point." (It is in fact criminal behaviour
(Comments and Information Regarding the following articles is put in Bold and in Brackets by J4Y)
26 YEARS IN JAIL FOR SUSPECT CONVICTIONS
Add a Vancouver man's name to the sadly growing list of wrongly convicted Canadians
By Ian Mulgrew, Vancouver Sun
January 10, 2009
A former east Vancouver resident, 62-year-old Ivan William Mervin Henry
, has spent more than a quarter-century behind bars for crimes I am convinced he did not commit.
Twenty-six years in penitentiary for crimes he did not commit.
Inadequate counsel and an over zealot prosecutor seeking a conviction rather than seeking justice, often times play a major part of wrongful convictions, yet the public is to trust that the public prosecutor and the judge are looking after the best interest of the public and of the victims.
It is most troubling that Ivan Henry was sentenced for life in prison, especially since Bouck and Luchenko must have known that Henry was not the man.
The finger however cannot be pointed only to Judge Bouck, since Ivan Henry did bring his matter to the Court of Appeal of BC and to the Supreme Court of Canada and his applications were dismissed.
Chief Justice Lance Finch had a duty to re-open the case of Henry, but did not do so, because of his contempt for self-represented litigants, and contempt for lawyers who also stand for justice.
Justice Antonin Scalia, in the majority opinion in Crawford v. Washington, 541 U.S. 36, 67 (2004), wrote that "[The Framers of the Constitution] knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory."
George Jeffreys-- THE HANGING JUDGE
Although the lawyers involved are tight-lipped, (A. Cameron Ward, Marilyn Sandford and David Layton)
, an extraordinary proceeding set for Monday in the B.C. Court of Appeal
betrays the scandal at hand: in 1983, Henry was wrongly convicted of a spree of sexual offences, declared a dangerous offender and ordered imprisoned essentially forever.
Now ironically, the bench that turned its back on Henry twice before again holds his fate in its hands.
Regardless, when the proceedings begin next week, the entire B.C. criminal justice system will be under the spotlight because of this horrendous miscarriage of justice.
Henry stridently maintained his innocence from the moment of his arrest in July 1982 and mounted his own misguided defence against charges that he attacked numerous women in Fairview, Kitsilano and Mount Pleasant.
(There is an unspoken consensus among the bar and the judiciary to crucify self-represented accused or litigants and the consensus is no different at the Supreme Court of Canada.
Further in the case of Henry, the Crown, Michael Luchenko, appears to have bent over backwards to seek a conviction rather than seek justice and therefore Ivan Henry was doomed with or without an advocate.)
His efforts only got him labelled unrepentant, vexatious and peculiar.
His daughters were six and nine, his wife still alive. Indeed, Henry was an ordinary, unemployed 36-year-old that hot summer.
(Mike Luchenko's daughter while being prepped to become a lawyer, the daughters of Henry were left without a father and with a name that caused them serious grief).
But the city was awash in fear in the wake of serial killer Clifford Olson's staggering conviction. The families of his victims were waging a highly public campaign about police ineptitude.
(26 years later and nothing has changed with law enforcement. In fact, according to Paul Palango, corruption abounds the RCMP and the VPD).
And the Vancouver police department was under pressure over a wave of urban assaults on women, particularly those living in basement or ground-floor suites. Officers were even pulled off bylaw enforcement to join the manhunt.
Perhaps it was Henry's previous record for an attempted rape in January 1977. He was sentenced to five years for that Winnipeg incident and was on mandatory supervision at the time of his arrest.
Perhaps it was his sense of outrage at being wrongfully accused when interrogated. Perhaps it was his eccentricity.
For whatever reason or constellation of circumstances, Henry found himself on a railroad express to the penitentiary.
After a bizarre performance at his trial, on March 15, 1983, Henry was convicted by a jury of three counts of rape, two counts of attempted rape and five counts of indecent assault involving eight different women between May 5, 1981 and June 8, 1982.
(It is a fact that Jurors are easily persuaded by the judge sitting on the case, as the judge gives subtle signs that leads to either an acquittal or a conviction.
Keep in mind that the laws in Canada regarding trial by jury are not the same as in the USA. First our Canadian Jurors are only triers of facts and it is the trial judge who decides the law and not the jurors. The courts in Canada, while it may be silent publicly about who should cite the laws, this writer has been advised by judges, when advocating for victims of legal abuse, that only lawyers are allowed to cite the laws and not self-represented litigants).
No physical evidence was offered to link him to the crimes. It was his word against the complainants' and he was not a sympathetic figure.
The Crown, which stayed charges involving several other women, moved to have Henry declared a dangerous offender -- a designation that would allow the judge to imprison him indefinitely.
In the case of Ivan Henry, the Crown Prosecutor was Michael Luchenko, a criminal lawyer who in 2006 was involved in the criminal charge of Nathalie Gettliffe's -- the mother of two children who was reproached for having violated a court order while taking along her children to France
Gettliffe was prosecuted harshly by the justice system in B.C. simply because Luchenko was determined to get the two grandchildren of Luchenko's lover back to his son in law Scott Grant
Luchenko finally removed himself from the case of Gettliffe, due to his own personal conflict, however former A-G Wally Oppal ended up putting Gayle Dickson, who also sought a conviction against Gettliffe. The Harper government, after the Gettliffe case was over, appointed Dickson to the bench.)
B.C. Supreme Court Justice John Bouck, who called the victims "eight innocent young ladies," made such a finding.
Justice Bouck has retired in May of 2006 and has since been on a crusade to make Canada Criminal law an issue for the state and not for the Federal Government, this way British Columbia can continue keeping their dirty little secrets to themselves and continue to charge, prosecute and convict the wrong people. In fact it appears that Bouck is looking for a Guatanamo Bay.
On January 18, 09, Bouck had defended his position by claiming to the Vancouver Sun that "he did everything possible to ensure Henry got a fair trial and he continues to believe justice was done in spite of last weeks announcement that another man may be responsible for Henrys crimes".
Judge Bouck removed his comments on his blog a few weeks later and in January 2010 Bouck apparently died of cancer.
He had little compassion and said he detected in Henry "no particular remorse or concern. He seems incapable of comprehending the nature of his actions. Instead, he takes refuge in condemning the judicial system for his predicament. Society must be permanently protected from the predatory behaviour of Henry."
Justice Bouck, however, was looking at an innocent man.
Stunned by his convictions, Henry found himself in the Kafkaesque world of an unrepresented and impecunious convict trying to push his own case.
He missed legal deadlines because he couldn't afford transcripts and ultimately his appeal was summarily dismissed by the Court of Appeal on Feb. 24, 1984.
The Supreme Court of Canada declined to hear his pleas a few months later.
The fact that a criminal matter such as the one of Ivan Henry would be rejected by the SCC raises serious questions regarding the legitimacy of the highest court of the land. In effect, self-represented litigants are treated unfairly in the court system starting by the court clerks and ultimately the judges. However having said that, any lawyers in Canada knows that if he or she advocates for their clients, where the state is involved in wrongdoing, he or she risks the chance of disbarment or disciplinary citation.
It appears that wherever there is a need of cover up by the government, the bar and the judiciary, there will be wrongul convictions.
Henry vainly unleashed a blizzard of legal motions, insisting on his innocence. But over the course of a decade, the unstinting effort only further stigmatized him.
In 1997, after 14 years behind bars, Henry got another hearing before Court of Appeal Justices Lance Finch, Ian Donald and John Hall -- who remain on the high bench.
Hall, as well, was intimate with the supercharged atmosphere in Vancouver during the summer of 1982 and the pressures on the police: he acted as the special prosecutor in the Olson case.
Henry again appeared on his own behalf. This time he wanted the court to reopen his case and appoint counsel to help him prepare his submissions.
The three judges agreed that, in exceptional circumstances, they could set aside one of the court's previous orders and reopen an appeal if the interests of justice so required. But in his case they saw no need.
Henry claimed the cops perjured themselves.
"That is an issue of fact, not law," the justices unanimously pronounced. "It is an issue which involves the assessment of credibility. It is not an issue which would merit this Court re-opening the appeal more than 14 years after the jury's conviction."
As for his request the court order legal aid provided to him with the help of a lawyer, they added: "In all the circumstances it would not be in the interests of justice for counsel to be appointed under s.684 of the Criminal Code or for this Court to reopen the appellant's appeal at this very late date."
In spite of that slap in the face, Henry refused to give up.
Two years ago, Attorney-General Wally Oppal appointed veteran lawyer Leonard Doust to review Henry's convictions "to determine whether there has been a potential miscarriage of justice."
That was the first indication a legal train wreck was in the making.
The second warning sign was a year ago when Doust delivered his report and a shudder went through the system.
There was apparently a true perpetrator who looked like Henry, a man who lived across East 17th Avenue from him, a man who was also a suspect and placed under surveillance by police. Which might explain why so-called "copycat" assaults continued after Henry's arrest.
More than that, the police work looks more than sloppy.
Henry was identified through a photo lineup that was cartoon-like -- not much better than a guy in a headlock alongside four well-groomed cops. Do you see someone who might have done this?
Worse, apparently a mountain of physical evidence has gone missing.
The legal flares heralding this disaster's arrival were the appearance of Henry's new legal team -- Cameron Ward, Marilyn Sandford and David Layton -- and the application for Monday's extraordinary hearing.
The Court of Appeal is being asked to officially reopen the case and begin the process that will lead to Henry's freedom.
The case highlights not only problems with some investigations and prosecutions, but also what happens when an accused insists on defending himself.
A full hearing on the province's most egregious wrongful conviction would not occur until spring if the appeal court rules quickly on reopening the case.
At that time, Henry's lawyers will consider applying for bail.
Henry remains in Mountain Institution in Agassiz. He may not be ready for the real world after such lengthy incarceration and will certainly need lots of support.
Think about it -- 26 years in prison for crimes he did not commit.
I'm told he wants only to be left alone.
Twenty-six years in prison for crimes he did not commit.
Ivan William Mervin Henry. A name about to be added to the sadly growing list of wrongfully convicted Canadians -- Stephen Truscott, Donald Marshall, David Milgaard, Thomas Sophonow, Guy Paul Morin, Greg Parsons. . . .
There are many more Canadians who have been wrongfully convicted and wrongfully arrested however the press in Canada does not report it.
In fact, where was the Press 28 years ago when Ivan Henry was being prosecuted? Is Mulgrew and any other reporters, prepared to ask for the impeachment of all the judges involved in Ivan Henry's case, including Chief Justice Lance Finch, who intentionally labelled Henry a vexatious litigant so that Henry would not have a chance to appeal at the Supreme Court of Canada? That is how the game is played. Judges label self-represented litgants vexatious so when they apply to the highest court of the land they automatically get rejected.
And what about Mike Luchenko?
Why would Ian Mulgrew and any other reporters fail to name him in their article?
Without an over zealot prosecutor like Luchenko, Ivan Henry may have not been incarcerated for 26 years
It is a total disgrace to have learned men on the bench who contributed to Ivan Henry's wrongful conviction.
2,000 years ago, Pilate's question to the priests was, "Whom shall I release? Jesus Barabbas or Jesus who is called Christ?"
They called, of course, for release of Barabbas, the notorious robber and murderer. "What shall I do then with Jesus who is called Christ?" Pilate asked. They shouted, "Crucify him!" Nothing has changed other than we put the innocent in jail and in the USA they put the innocent on death row.
Copyright (c) The Vancouver Sun
Anyone interested in justice, must ask the question as to how can the A-G, the Crown, the justice system and the Media, be so convinced that Ivan Henry was wrongfully convicted 26 years ago, if all the evidence, including the blood, has been destroyed?
Without the DNA and blood sample, it is not possible to clear Henry's name, unless at the time of Henry's arrest, the A-G, the VPD, Luchenko, and others knew he was not the man that sexually assaulted the women, and in fact, most likely knew who the real criminal was, as they also know that Pickton could not have possibly murdered all the sixty (60) women.
The following article still leaves Michael Luchenko's name out of it.
In Light of New Evidence, B.C. Court May Reopen Case of Man Jailed 26 Years
Published: Monday, January 12, 2009
VANCOUVER -- Ivan Henry already had a criminal history in 1983, a previous conviction for attempted rape. He also had a history of drug and alcohol abuse. According to a court-appointed psychiatrist, he was psychotic and suffered paranoid delusions.
Clearly, there was no advantage for him to defend himself on multiple sex charges in B.C. Supreme Court. (And even having a lawyer would still not have been beneficial because the lawyer would have assisted the Crown to obtain a conviction) But he did and despite a lack of reliable evidence -- and a host of other troublesome factors, unacknowledged at his trial but surfacing now -- Henry was convicted by a jury on three counts of rape, two counts of attempted rape and five of indecent assault. (Judge Bouck had a duty and obligation to properly assist Ivan Henry).
A judge declared him a dangerous offender, which meant he might never experience freedom again.
He has spent the past 26 years in prison for crimes he has always maintained he did not commit.
The record now casts serious doubt on the prosecution's case against him and the process leading to it.
(It begs the question as to why the Media is not stating the facts on how Luchenko proceeded, who did not want to ever disclose the blood sample?)
The province's highest court is expected to rule Tuesday on an application to reopen his appeal.
At a court proceeding Monday, a lawyer representing the Crown conceded that Henry may have not received a fair trial back in 1983.
(The judges at the BC Court of Appeal have no appreciation for the Canadian Bill of Rights and the Canadian Charter and Chief Justice Lance Finch has shown throughout the years that his allegiance is on the wrong side of justice.)
He raised no objection to a defence application that would reopen the case.
Instead, independent special prosecutor David Crossin offered stunning concessions. He did so as cautiously as possible given the circumstances.
He did not wish to lay specific blame on those police officers who investigated a string of sexual assaults in Vancouver, or the team of Crown lawyers who prosecuted the case all those years ago, or the witnesses and complainants who came forward at his 1983 trial and identified him as the perpetrator of rape.
(The Canadian Media is failing in reporting the facts and as a result the Press has given the appearance that it is limited in what it can write and disclose to their readers.)
But "relevant and potentially exculpatory" evidence had surfaced while Henry languished in prison.
(The most important evidence, blood sample that Luchenko did not want to disclose to Ivan Henry, appears to have been conveniently destroyed)
He had, in the 1980s and 1990s, tried to initiate 55 proceedings, all on his own. None succeeded.
He had no means to hire a lawyer, and no real shot at mounting an appeal.
( Ivan Henry had a legal aid lawyer at the preliminary hearing in 1982 and, in fact, had three legal aid lawyers early on but fired them, because most likely, the lawyers tried to screw him in either getting him to plead guilty or else use the insanity defence.)
Last year, however, another independent special prosecutor reviewed his case, and recommended that the Crown not oppose re-opening an appeal. It was only then that he was granted access to legal aid funds. He hired lawyers. Good ones.
( It appears that Brian Hutchinson is suggesting that the legal aid lawyers Ivan Henry fired in 1982, prior to his trial, were bad ones.
The job of Cameron Ward however is an easy one considering that the Crown is convinced that Henry was wrongfully convicted.)
They have applied to have the courts set aside earlier orders dismissing Henry's attempts for an appeal. He may soon go back to trial.
Monday, lawyers for the defence and the Crown stood before a B.C. Court of Appeal panel and agreed on everything.
Mr. Crossin outlined four specific areas of concern. Most disturbing, perhaps, was Crown counsel's failure to disclose material evidence to Henry before and during his trial. "There was, in fact, non-disclosure," Mr. Crossin said in court Monday.
(Attorney David Crossin is a criminal lawyer. It is to be noted that British Columbia is the only province in Canada that hires criminal lawyers to act in the role of ad-hoc prosecutors.
This is to say that defence lawyers play both sides of the fence in B.C. There is no separation between the law society, the judiciary, the A-G, the Crown and the Government, each one of the public bodies are all in bed together)
Defence counsel David Layton filled in the blanks. The Crown failed to disclose 27 statements taken from individual complainants leading to Henry's trial, court heard Monday. "In many cases these were the first descriptions [of their rape and assault] by complainants to police," he added.
(From the time Ivan Henry was accused he asked the Crown to produce evidence including blood samples, however Michael Luchenko refused to produce and Judge Bouck went along with the Crown.)
And guess what? These witness statements didn't always match witness testimonies at trial. Initially, not one of the complainants told police that her attacker had a raspy, rough voice. After hearing Henry speak in a police lineup, some complainants would describe their attacker's voice as raspy and rough.
Some complainants identified their attacker as someone other than Henry. That wasn't disclosed, either, said Mr. Layton.
It wasn't the only issue that worked against the accused. Mr. Crossin suggested in court Monday that the 1983 jury charge by B.C. Supreme Court Justice John Bouck was problematic, and that Henry's performance as self-counsel at his trial was "ineffective and counter productive." His mental condition, as described by a court-appointed psychiatrist just after his trial, prior to his dangerous offender status declaration, indicated myriad problems.
Defence counsel Layton offered more. The 1983 trial judge, he told court Monday, told jurors they could infer guilt by Henry's reluctance to appear in a police lineup. But the lineup techniques "were egregiously defective...[and] flawed."
Six complainants had watched Henry participate in a lineup with other men. He was the only one "yelling and screaming, while being restrained by policemen," Mr. Layton said in court Monday.
And yet three of the complainants did not identify Henry in that lineup. The other three were unsure. A seventh complainant picked his photo from a lineup of still photographs; Henry was the only person posed in front of a jail cell, with a police office in the frame, said Mr. Layton.
Mr. Justice Bouck failed to assist Henry during his trial, the defence lawyer also noted. Mr. Layton mentioned 10 instances "of inadequate assistance" to the accused. "Each one on its own is grounds for appeal," he argued.
Finally, the "new," potentially exculpatory evidence. In fact, it is not new; it is a few years old. But it is explosive.
In 2002, police in B.C. launched "Project Small Man," an investigation of serious sex crimes connected to the Robert Pickton-missing women file.
Police examined a set of 27 serious sex offences committed in Vancouver between 1983 and 1989. Police determined they probably were committed by one person.
In about half of the 27 cases, the perpetrator used an identical "rip off" modus operandi, police found. The perpetrator entered a female victim's home at night, pretended to be looking for goods stolen from his "boss," and then attacked the woman. He covered part of his face, and sometimes part of her face, during the assault. The assaults all took place in the same neighbourhods in Vancouver's west side.
Henry was in custody between 1983 and 1989, so he could not have committed any of these "rip-off" style assaults. But "at least" seven of the eight individual complainants at his sex crime trial in 1983 described enduring the same distinct "rip-off" assault technique.
The clear inference is that someone else committed the previously committed crimes ascribed to Henry, his lawyer said in court Monday.
Police, Mr. Layton added, eventually identified a "Project Small Man" suspect. He lived in Vancouver when and where the Henry offences occurred.
The suspect was identified during Monday's proceedings, but his name cannot be published under court order. He pleaded guilty to three sex offences in 2005 and received a five-year prison sentence. He has since been released.
Henry, on the other hand, remains in prison. "A man has been convicted and has served 26 years in prison for crimes he did not commit," David Layton told the panel of B.C. Court of Appeal judges Monday. The Crown ventured almost as far. The same panel of judges convenes this morning; it is expected to accept Henry's application. His case will be reopened.
The Media continues to leave out the name of the lawyer that prosecuted Ivan Henry in 1982, as apparent by the following article by Ian Mulgrew:
Pickton Investigation Leads to Retrial for Man Jailed 26 years
Sloppy police work, prosecutors' lapses, trial judge's errors may have led to wrongful imprisonment for sex crimes
By Ian Mulgrew, Vancouver Sun
January 14, 2009
The horrendous injustice suffered by Ivan Henry might never have come to light if not for the investigation into the heinous crimes of serial killer Robert Pickton.
The B.C. Court of Appeal buried Henry more than a decade ago -- and Tuesday's extraordinary historic reversal by the province's high bench would not have occurred without a Vancouver police department review of old sex cases spurred by the pig farm murders.
A subsequent investigation, dubbed Project Small Man, led directly to the 2006 appointment of special prosecutor Len Doust over fears a miscarriage of justice might have occurred.
His report last year on Henry's case was the catalyst for this week's unprecedented order it be reopened.
Now 62, Henry has served 26 years in prison for a series of sex crimes he always insisted he did not commit. Doust concluded he had good reason to feel aggrieved.
In the unanimous decision of the appeal court, sloppy police work, prosecutorial lapses, mistakes by the trial judge and mental illness were all cited as reasons for suspecting a terrible mistake has occurred.
Henry's trial was manifestly unfair and the Court of Appeal never considered the merits of his complaints on two previous occasions.
The high bench rejected with finality Henry's self-presented submissions in 1997 and refused even to support his application for legal aid so a lawyer could focus his pleadings.
That the court has a chance to make amends is solely and sadly the result of happenstance.
Under Project Small Man, police reviewed sex crimes that occurred in the city during the 1970s and 1980s and investigators identified a pattern of offences that suggested a single perpetrator.
They arrested and charged a man who was convicted in 2005 and ordered imprisoned for five years for attacks on three women, although he was suspected of assaulting many, many more: Fifty-one!
That was scarcely three years ago, yet this man has been freed and police have no idea where he is.
His name is being protected by the court at the request of the Crown while authorities try to find him.
After this man's conviction, the province appointed Doust to examine Henry's case because many of the attacks he was accused of committing matched this other man's modus operandi. Not only that, the other man looks like Henry and lived in the same neighbourhood.
The only evidence against Henry was notoriously unreliable witness testimony from terrified women attacked in darkness by someone who hid part of his face.
No physical evidence was presented, although police had semen from the culprit on a pillowcase.
Regardless, police have since destroyed or returned the physical evidence in Henry's case, so there is nothing today that can be tested for DNA.
I find the entire performance by police and prosecutors in this case to have been reprehensible, especially when you consider Henry was suffering from mental illness.
Although he was deemed fit to stand trial, the Crown learned in August 1983 during the sentencing process that he was displaying signs of psychosis and suffering from delusions. He was probably not fit to stand trial, but not only was he put on trial, he was allowed to conduct his own defence -- a performance the judge and everyone else found perverse and eccentric.
In spite of all this, the Court of Appeal in 1984 wouldn't stoop to consider whether the proceedings were fair. It dismissed Henry's appeal because he couldn't afford to pay for transcripts and other documents.
Some 14 years later when it gave him another hearing, the court again stood on procedure.
Those who made that decision -- Chief Justice Lance Finch and colleagues Ian Donald and John Hall -- remain on the bench.
Their ruling would have kept Henry buried in the prison system if Doust had not raised the alarm.
Henry won a great victory Tuesday, but it is only the start.
He still must persuade the Court of Appeal to overturn his conviction; he needs to get out of jail; and he needs to reunite with the family stolen from him.
His daughters exploded in tears when Justice Mary Saunders declared their dad was getting a new hearing.
"It's been a hard road," 33-year-old Kari said.
"We just want to be a family again," added Tanya, 35.
As for compensation?
"That's an issue for a later time," Henry's lead lawyer, Cameron Ward, replied.
"He's concerned about getting vindicated, being cleared of these convictions and getting out of jail."
A full hearing on the province's most egregious wrongful conviction will probably occur this spring.
Henry will remain in Mountain Institution in Agassiz while his lawyers consider applying for bail.
Copyright (c) The Vancouver Sun
Prime Suspect in 1980s Rape Rampage Still Loose
Special Prosecutor Gets Ruling to Conceal Man's Identity
By Ian Mulgrew, Vancouver Sun
January 15, 2009
The prime suspect in dozens of sexual assaults, including those believed wrongly attributed to Ivan Henry, has not been contacted by police and prosecutors.
During the hearing that led to this week's extraordinary re-opening of Henry's conviction 26 years ago, special Crown prosecutor David Crossin obtained a publication ban on the man's name, saying authorities had been unable to contact him.
Crossin told the court that releasing his name might affect his privacy rights even though he is a convicted rapist.
The Vancouver Sun has learned the man, convicted in 2005 of sexually assaulting three women and ordered imprisoned for five years, was freed on statutory release Oct. 14 and is living in the province.
While Crossin created the impression the suspected sexual predator was difficult to find and a publication ban was necessary, the Correctional Service of Canada said a parole officer met with him Wednesday and he is not missing.
"He has been meeting all our obligations," corrections representative Brandon Banks said.
Crossin refused to comment when asked why the authorities hadn't spoken to the suspect and why he left the court with the impression the man was difficult to find.
Asked why he applied for a publication ban on the man's behalf, Crossin said: "I want him to be in a position of looking after whatever interests he might have. But I'm not in a position to talk about it."
From a public safety standpoint, that's ridiculous.
No wonder there's a crisis of confidence in the legal system. First it looks like they jailed the wrong man for a quarter century and now it looks as if they are prepared to let a dangerous sexual predator live anonymously among us.
Henry, 62, was convicted of several sexual offences in 1983, declared a dangerous offender and imprisoned indefinitely.
His appeals were summarily dismissed and he was buried in the penitentiary system until two years ago, when prosecutors on an investigation connected to the Robert Pickton murders examined old Vancouver police files and raised the alarm.
They uncovered evidence that a terrible miscarriage of justice may have occurred and that Henry was convicted of crimes committed by the other man.
Much of the detail about what happened to Henry and why is contained in briefing materials filed with the B.C. Court of Appeal, but they are sealed.
The Sun is seeking to have those files opened to the public.
Regardless, what has been released suggests there may be a man out there who has sexually attacked 50 or more women.
(Pickton most likely is another wrongful conviction.)
Yet police and prosecutors have so far failed to confront him. (Because most likely, he is not the man of 26 years ago.
(Is the A-G and Crown going to prosecute another man simply because he has a similar conviction?)
Attorney-General Wally Oppal said he understood that members of the public might be fearful because they have no way of knowing if they are living next to a potential time bomb.
But he wasn't sure there was anything he could do about it, given the independence of the prosecutor.
"The special prosecutor is at arm's length from the ministry and I'm not sure what has happened or why we haven't talked to this man," he said. "I can't comment because I don't know what they are doing."
Police and prosecutors do not talk about active investigations, Oppal said, and that may be why everyone is tight-lipped.
That does not wash.
The Criminal Code empowers the authorities to warn people about the release of someone they deem still a danger.
They do it all the time and they should have done it in this case, given the scope and extent of their concerns about a wrongful conviction.
I am completely flummoxed as to why the special prosecutor would protect a predatory sexual offender who has not finished his sentence.
(Mulgrew ought to investigate rather than trying to lead his readers to the wrong conclusion.)
As well, I can't understand why police would not have interviewed this man about these crimes and have him under active investigation if he is the prime suspect.
This person is more than capable of defending his privacy interests if they are endangered. That isn't the Crown's job.
I bet he's more than capable of having his own lawyer to run interference with the media without the special prosecutor helping him out.
I think this man's parole should be revoked and he should be held in custody until this mess is sorted out.
(What Mulgrew is suggesting is as egregious as what the justice system did to Ivan Henry, because the Crown and the police do not have any evidence to pin the sexual assault on this anonymous man, other than "maybe it's him". It is exactly that sort of attitude that got Henry in jail for 26 years.
Section 11 of the Charter of Rights wherein, "Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal"? This anonymous man has not been charged and therefore his name should not be revealed.)
Copyright (c) The Vancouver Sun
The following article still does not reveal the name of Crown Prosecutor Michael Luchenko. Perhaps the fact that Luchenko's daughter was called to the bar in 2008 may have something to do with it, since carrying the Luchenko name may be as bad as what the daughters of Ivan Henry had to go through, except that while Luchenko's daughter was being prepped for a privilege life, the daughters of Henry were left to carry the name in shame for a crime their father did not commit.
1982 Police Line-up: Who Looks Guilty To You?
No. 12 was picked out of this lineup and convicted of several sexual assaults. H served 26 years, but now there's serious doubt that he was the perpetrator
By Neal Hall, Vancouver Sun
January 16, 2009 12:00 PM
A photograph in Ivan Henrys appeal court file shows him in a police lineup in 1982 being restrained by three police officers, one of whom has him in a headlock, while other men in the lineup are laughing.
But it was no laughing matter for Henry, now 62, who complained for more than two decades that he was wrongly convicted.
Henrys 1983 trial ended with him convicted of 10 charges involving eight women.
After serving 26 years, he managed this week to convince three judges of the B.C. Court of Appeal to hear his appeal.
Court documents released Thursday to The Vancouver Sun indicate at least two of his alleged victims witnessed him being restrained by police in the lineup, drawing their attention to him.
They later testified against him.
One of them told his trial: There was one person in particular that was being held by three police officers as he seemed to be either unable to stand on his own or was struggling somehow and so he was being restrained.
The woman testified she was pretty sure her assailant was the one that was being held by police, No. 12.
Henry wore the number 12 around his neck in the lineup, which was held when he was first arrested.
In a summary of witness testimony contained in the appeal court file, another of Henrys alleged victims testified she was told the men in the lineup were going to repeat something said during the sex attacks, but we did not get a chance to really hear their voice.
Another woman testified she did hear Henry speak in the police lineup and recalled:
There is no doubt in my mind that Mr. Henrys voice is the voice of the man who attacked me.
The day of the lineup, Henry was also interrogated and then released from custody by Vancouver police. He was not charged at the time.
He was arrested again in 100 Mile House on July 29, 1982 and has been in custody ever since. He was initially charged with a 19 count indictment, later reduced at trial to 10 charges involving eight women.
For years, Henry has complained that he was an innocent man and he has made a total of 55 applications trying to get the appeal court to reconsider his case.
The B.C. Court of Appeal repeatedly dismissed his applications as frivolous, until this week.
(Chief Justice Lance Finch and any of his colleagues usually always dismiss an appeal or application coming from a litigant that alleges serious criminal conduct on the part of either the Crown, the lawyers and/or the judge from the court below.
There is blatant abuse occuring in the courts in British Columbia and in Canada and like a child who gets molested and/or rape by a trusted family member, a person before the court is in the same predicament, as there is no where to go for protection.
To date, there are numerous victims that have stories to tell about Chief Justice Finch and how each one of these victims have suffered irreparable harm because of his lack of respect for the Charter of Rights and Freedom.
The following link shows on how egregious Chief Justice Lance Finch really is and how he has made sure that Ivan Henry would not obtain any relief from the court:
CA 1997 CJA Finch Dismissed Henrys Application
CA 2003 Henry asking for Disclosure of Blood Sample
The appeal court file, made available to The Sun following an application to the chief justice, includes rambling, disjointed, handwritten correspondence from Henry with the appeal court dated Nov. 10, 1983, after he was found guilty but before he was declared a dangerous offender, which carries an open ended sentence.
Henry said in the document that he was dragged
into the police lineup, his hands were forced behind his back and a picture was snapped of me
He said in the affidavit to the court that he left town the next day and was babysitting his children at the time one of the alleged offences occurred.
He added: I have not done any charge set out in indictment CC821614, nor do I know any of the women, period
Henrys appeal is expected to be heard later this year. His lawyer, Cameron Ward, said he expects to apply soon to have his client released on bail.
J4Y contacted Cameron Ward on April 26, 2009 by email, asking him whether he had abandoned his client, and to date, Mr. Ward has not replied, giving the impression that Mr. Ward is not advocating for Henry.
's name is revealed.
Veteran Prosecutor Spotted Similarities Between Sex Cases
By By Neal Hall, Vancouver Sun
January 16, 2009
- The apparent wrongful conviction of Ivan Henry
might not have come to light if it had not been for the sharp memory of a veteran Crown prosecutor.
The police investigation into mass murderer Robert (Willie) Pickton, which has been credited for the re-examination of the Henry case, uncovered a mass of information about old sex crimes in B.C. which has been credited for the re-examination of the Henry case, uncovered a mass of information about old sex crimes in B.C.
But it wasnt until three years ago when administrative Crown counsel Jean Connor
was reading a memo about an accused serial rapist that the pieces clicked into place.
Connor said Friday she was surprised how similar the facts in the memo were to the ones she remembered from a sex-crimes case more than two decades earlier.
She took the document and walked down the hall to the office of her colleague Mike Luchenko
, who had prosecuted the Ivan Henry case in 1983. The case had ended with a jury convicting Henry of 10 offences involving eight women.
She read out details of the crimes contained in the memo to Luchenko, then asked: Who is that?
, Luchenko replied.
Connor told him it was in fact another man facing similar charges involving more than 20 women.
I got the feeling these were very, very similar
, Connor recalled in an exclusive interview Friday. I thought, This is too strange
Luchenko still had the court transcripts from the Henry trial in his office. He and Connor pulled them out and began to read.
(Funny that Luchenko still has the transcripts from Henrys trial but the blood sample has been destroyed?)
All the victims in the Henry case were single women living in groundfloor or basement suites, the same as the victims in the new case.
Connor and Luchenko then went to their boss at the time, Mike Hicks
, now a judge, and told him about the similarities in the cases.
That meeting, she said, eventually led to Attorney General Wally Opal
appointing senior Vancouver criminal lawyer Len Doust to review the Henry case as a possible miscarriage of justice.
Dousts report on the matter, which has not yet been made public, led to Henry being granted legal aid funding, something he had been seeking for years while maintaining he had been wrongly convicted.
Henry, now 62, retained Vancouver lawyer Cameron Ward, who asked lawyers Marilyn Sandford and David Layton to join the legal team to try to get Henrys appeal reopened.
After hearing submissions, a three judge panel of the B.C. Court of Appeal decided this week to reopen Henrys appeal and hear fresh evidence.
After 26 years in prison, Henry plans to seek release on bail before his appeal is heard.
It was just a total coincidence that I read the new file and recalled the Henry case, because I was here when that was prosecuted
, said Connor, a prosecutor for 33 years who plans to retire in July.
Connor said she had come forward because news reports had said only that the re examination of the Henry case had stemmed from a police review of sex crimes cases after serial killer Robert (Willie) Pickton was caught. The role of the Crown did not figure in the stories.
She said that ultimately, it was the Crowns concern that a man might not have been properly convicted that led to this weeks developments.
If I didnt happen to read that memo, none of this would have happened
, she said.
However, she said she still believes that Henry was properly convicted
. (J4Y How could Connor say something like that?)
But the Crown has a duty to make sure justice is administered fairly, she added.
There is no winning or losing, as far as Iím concerned
, Connor said of the role of prosecutors in the justice system. She said times have changed dramatically since Henrys trial in 1983.
He was subsequently declared a dangerous offender because of his past criminal history, including an attempted rape conviction in 1977 in Winnipeg, which resulted in a five year sentence.
It was before DNA was in use
, she said.
The rules of disclosure were also different then, she said, adding that today, the Crown must disclose the entire police investigation to the defence, something that wasnt done in the Henry case.
She pointed out that Henrys name was not in the other suspects file or vice versa.
She said the suspect who was the subject of the memo three years ago was eventually charged with three offences involving three women because there was DNA in those cases, which matched the suspect.
That mans name was raised in court this week by Henrys lawyers, but the appeal court judges who heard the matter imposed Tuesday a one-month ban on publication of the serial rapists name.
Unfortunately for Henry, the physical evidence that may have contained DNA that might have exonerated him was not kept by police or the Crown.
There was no reason to keep this stuff
, Connor explained. There was no DNA then.
She said she chose to speak out publicly because she wanted the public to know that it was the Crown that first raised concerns about the Henry case, something that had not been reported yet.
I havent read it in the paper or seen it on TV
, said Connor, 57, who was recognized in 2007 as one of the countrys top prosecutors when she received a courage and perseverance award at a national prosecutors conference.
She was appointed Queens Counsel to recognize her outstanding work as a prosecutor over more than three decades.
Trial Judge Defends Ivan Henrys conviction
By Ian Mulgrew , Vancouver Sun
January 18, 2009
The judge who presided over the 1983 sex crimes trial of Ivan Henry reopened by the Court of Appeal has fired back in his blog at critics who have questioned the fairness of the trial.
(Bouck was not alone in convicting Henry. Luchenko was the prosecutor seeking a conviction at any cost. Also the BC Court of Appeal and the Supreme Court of Canada turned their backs on Henry.
It is easier however to point the finger on a retired a judge, but in truth the onus is on Michael Luchenko.
Retired B.C. Supreme Court justice John Bouck says he did everything possible to ensure Henry got a fair trial and he continues to believe justice was done in spite of last weeks announcement that another man may be responsible for Henrys crimes.
The B.C. Court of Appeal last week reopened Henrys case because of evidence that he was not the man responsible for a series of sex crimes in the 1980s.
(After the BC Court of Appeal had declared Henry vexatious, years later it is ordered by the executive branch to hear Henrys appeal.
After a jury convicted Henry, Justice Bouck declared him a dangerous offender and ordered him imprisoned indefinitely.
(Bouck is evidently a very conservative person, which he carried with him on the bench. Having said that, it is within the Criminal Code of Canada, when an application is made by the Crown during the sentencing to declare someone, convicted of sexual assault, a dangerous offender.
Section 752 of the Criminal Code
Prosecutors have now declared a miscarriage of justice may have occurred and Justice Bouck felt he had to speak out.
I am handicapped with respect to some of the particulars since I do not have a copy of the trial transcript or the investigators report, he began on his Sunday posting on
Before the 1983 trial commenced, Mr. Henrys lawyer advised me that Mr. Henry did not want his representation. He wanted to defend himself. In open court and in the absence of the jury Mr. Henry confirmed his position. I urged him not to proceed without legal advice. He insisted that he wanted to go ahead without a lawyer.
(The court would have convicted Henry because Luchenko wasd seeking a conviction.)
In its unprecedented ruling, the Court of Appeal cited the special prosecutors concerns that Justice Bouck had failed to give Henry as much aid during the trial as he should have.
I did my best to help him but with little success, Justice Bouck said in his posting.
The gist of the prosecutions case was Mr. Henrys alleged modus operandi. All of the rapes occurred near his residence. The Crown alleged that around 2:00 a.m. to 4:00 a.m. he jimmied open ground floor sliding glass doors where the single women complainants lived and sexually assaulted them. When the time came for his defence he did not call any witnesses and declined to take the witness stand in his own defence.
Justice Bouck said also that Henry put into evidence a picture of his police lineup that put him in a bad light even though he was told not to do so.
(The picture recently published in the Vancouver Sun, does not show Henry in a bad light, but rather shows misuse of power by the police in holding Henry by the neck.)
As well, the justice says in his Internet posting, that Henry was on parole for two earlier rapes he committed in Saskatchewan at the time he committed the 1983 offences.
Justice Bouck today asks why Henrys wife, who is now dead, didnt testify on his behalf at the trial. And he maintained that while he was serving time for the Saskatchewan offences, Henry learned how to install sliding glass doors.
The Attorney-General criticized my handling of the case, Justice Bouck said. I admit that Mr. Henry did not get a perfect trial or a perfect dangerous offender hearing. Nobody does.
Trials are conducted and decided by imperfect human beings applying imperfect laws. The most the criminal justice system can offer is a fair trial. Mr. Henry got both a fair trial and a fair dangerous offender hearing.
Justice Bouck insists that if Henry did not receive a fair trial, it is his own fault.
(Who else is the justice system going to blame, other than Ivan Henry, for not applying the laws as they know it and failing to assist a self-represented accused?)
No matter how Boucks cuts it, the fact is, he had duty to assist Henry, as the Crown also had a duty, however both were into seeking a conviction at any cost.
According to media reports, Mr. Henry asked for legal help in pursuing his appeals but never got it, Bouck said.
If that is true, it is a condemnation of the Attorney Generals Legal Aid system which lawyers and judges constantly criticize. The Attorney Generals investigators did not bother to interview me before they condemned me publicly nor did they send me a copy of their report.
(The Office of the Attorney General has given the apperance that they are protecting senior prosecutor Michael Luchenko.)
The difference between the following case and the one of Ivan Henry is that Mr. Thomas L. Goldstein was convicted of murder in the United States, and spent 24 years in jail for a crime he did not commit.
Whereas Ivan Henry was sentenced for life for sexual assault and to date has been incarcerated for 26 years, because of the Crown prosecutor Michael Luchenko and Mr. Justice Bouck declared Mr. Henry a dangerous offender, which led to an indifinite sentence.
The following LOS ANGELES TIMES article, shows how much power US prosecutors have, even when they make egregious mistakes.
SUPREME COURT REJECTS SUIT IN LONG BEACH CASE
The decision, in a case where a man was wrongfully convicted of murder, broadens protections for district attorneys and other chief prosecutors.
By David G. Savage
January 27, 2009
Reporting from Washington -- The Supreme Court on Monday threw out a lawsuit by a Los Angeles man wrongfully convicted of murder and gave district attorneys a broad shield against being sued even if their management mistakes send an innocent person to prison.
Thomas L. Goldstein, a former Marine convicted in a 1979 shooting in Long Beach, spent 24 years in prison largely on the word of a heroin addict who had worked as a jailhouse informant for police and prosecutors. Edward F. Fink lied on the witness stand when he denied receiving a benefit for testifying for police, a judge found.
Goldstein was freed in 2004, and he sued former Los Angeles County Dist. Atty. John K. Van de Kamp and top deputy Curt Livesay, contending they allowed prosecutors to regularly use jailhouse informants and did not take steps to make sure they were telling the truth.
In Goldstein's case, the trial prosecutor did not know Fink was lying because other prosecutors in the sprawling district attorney's office did not share information.
The Supreme Court mostly set aside the facts of Goldstein's case and focused on the potential harm of allowing top prosecutors to be sued. District attorneys who are managing teams of prosecutors should not face the fear they might be sued years later by resentful suspects, the justices said.
In the past, the court said trial prosecutors were entitled to absolute immunity for their courtroom work. In Monday's ruling in Van de Kamp vs. Goldstein, the high court extended that shield to cover district attorneys and other chief prosecutors for any actions that involve prosecutions and trials.
Last year, the U.S. 9th Circuit Court of Appeals in San Francisco said top prosecutors could be sued for "administrative" failures. The decision rejected Van de Kamp's claim of immunity and cleared Goldstein's lawsuit to proceed.
But the Supreme Court rejected the distinction between administrative and management tasks and said management of trial-related information was a prosecution function.
"We conclude that a prosecutor's absolute immunity extends to all these claims" about tracking jailhouse informants because they are "directly connected with the conduct of a trial," Justice Stephen G. Breyer said.
It was the fourth decision in a week siding with police and prosecutors. Last week, the court extended the so-called exclusionary rule and said tainted evidence could be used if police made an honest mistake in searching a suspect. In that case, an officer acted on an arrest warrant that should have been removed from a police computer.
That same day, the court also threw out a lawsuit against police in Utah who, based on the word of an informant, burst into a house without a warrant. The justices did not decide whether the search was illegal but concluded that police were immune from being sued.
In a second decision Monday, the court said police could stop and frisk a passenger in a stopped car, even if there was no reason to suspect the passenger had done anything wrong.
The ruling in favor of district attorneys is consistent with the Supreme Court's trend of limiting lawsuits, especially against the government.
Goldstein was living in Long Beach when he was arrested in a nighttime shooting in an alley near his home.
Several eyewitnesses gave conflicting descriptions. Some said the shooter was black. One witness pointed to Goldstein, who is white.
Investigators arranged to put Fink in a jail cell with Goldstein.
A heroin addict, Fink had been frequently arrested but received reduced sentences for helping the police. He later testified that Goldstein had confessed to the killing.
Years after the conviction, a grand jury in Los Angeles issued a report on the misuse of jailhouse informants and forced a series of changes by police and prosecutors.
"They are rarely used now," Van de Kamp said.
Despite the lawsuit, Goldstein and Van de Kamp said they had amiable conversations.
"I like Van de Kamp," Goldstein said. "He has worked for the fair administration of justice. He's done a lot for California's system of justice."
Van de Kamp was district attorney from 1976 to 1982, and California attorney general from 1983 to 1991.
More recently, he has chaired the California Commission on the Fair Administration of Justice.
Van de Kamp called the decision "absolutely correct." A ruling in favor of Goldstein "would have opened the door to a flood of questionable lawsuits," he said.
"At the same time, prosecutors continue to have an ethical obligation to ensure fair convictions. There's a lot more they can work on to achieve that."
Goldstein, 60, said he was upset by the decision. "This case was an opportunity for the Supreme Court to rule that every D.A.'s office in America should be required to have an information system on jailhouse informants," he said. "If that happened, there would be fewer wrongful convictions."
Goldstein said he had a separate suit pending in federal court against Long Beach and four detectives.
Court Ruled Henry's Bid for Evidence 'Frivolous,' Records Show
February 5, 2009
During his years in prison for crimes he says he did not commit, Ivan Henry sought medical records and DNA evidence in the hopes of proving his innocence.
But those efforts proved fruitless, as most physical evidence had been returned to victims or destroyed and because Mr. Henry's jailhouse requests - made without legal advice - were dismissed.
A Dec. 13, 2000, order by the Supreme Court of British Columbia turned down Mr. Henry's applications for medical records as "frivolous and inappropriate" and rejected his application for police reports relating to his case.
His efforts to obtain medical reports and other information are reflected in historical court files made available yesterday to the news media.
They also include a Feb. 23, 2000, letter from British Columbia's privacy watchdog that politely rebuffs Mr. Henry's efforts to obtain DNA evidence relating to his conviction through a Freedom of Information request.
"The [Vancouver Police Department's] position with respect to your request is that the Freedom of Information and Protection of Privacy Act does not cover physical evidence gathered by investigators in the course of a police investigation," says the letter from B.C.'s Office of the Information and Privacy Commissioner.
"The VPD points out that even if such physical evidence was covered by the Act, the only legal obligation of the VPD under the Act would be to hold it in their possession for one year," the letter states.
Given doubts as to whether the act applied, and the fact that even if it did, records had to be kept for a one-year minimum, the privacy office closed the file.
Records previously made available included copies of a police lineup photo that shows Mr. Henry being restrained by two uniformed officers. That lineup, and other aspects of Mr. Henry's trial, are expected to come under scrutiny when his appeal is heard this year.
Mr. Henry was convicted in 1983 of 10 counts of rape and assault involving eight different women and was declared a dangerous offender. He has always maintained he did not commit the crimes, which took place in Vancouver and were carried out by a knife-wielding attacker breaking into basement and ground-floor suites.
Mr. Henry represented himself at his trial.
His initial appeal was dismissed in February, 1984, and a similar request was turned down in 1997.
But last month, the Court of Appeal unanimously granted Mr. Henry's application to reopen his appeal, more than 26 years since his arrest in 1982 and a little more than two years after a special prosecutor was appointed to look into his case.
Special prosecutor Leonard Doust was handed the file after a Vancouver Police Department investigation into unsolved sexual assaults that occurred in the mid- to late-1980s turned up another suspect who committed crimes similar to those of which Mr. Henry had been convicted.
A suspect in that investigation pleaded guilty to three assaults in 2005 and was released on parole last year. His name is under a publication ban.
Mr. Henry has been in custody since he was arrested in 1982. His lawyers have said they will request bail pending his new appeal, which is expected to be heard some time this year.
After 26 Years in Prison, Ivan Henry released on bail, Awaiting Appeal
By MARY FRANCES HILL, VANCOUVER SUN
June 12, 2009
METRO VANCOUVER -- A man who served 26 years in prison for sex crimes he claims he did not commit was granted bail Friday.
B.C. Court of Appeal Justice Peter Lowry ordered that Ivan Henry, 62, be given bail pending an appeal of his 1983 conviction on sex crimes.
Henrys lawyer Marilyn Sandford said her client may be out of jail by this weekend, in anticipation of an appeal she said could happen within months.
We are hopeful to get it as soon as we can, and hope we will be in court by the fall . . . or before the end of this year, she said.
Sandford said Henry will be living with his daughter while he waits for his appeal.
Until then, he must abide by strict bail conditions set by B.C. Court of Appeal Justice Peter Lowry. Henry must be monitored electronically, undergo psychiatric counselling and maintain a curfew.
They are very stringent, strict conditions, said Sandford.
A publication ban prohibits the release of details explaining why the judge imposed those conditions.
Henrys 1983 trial ended with convictions on 10 charges involving eight women. He was later declared a dangerous offender, which carries an open-ended sentence.
In December 2006, a special prosecutor was appointed to review the case. He reported last March there may have been a miscarriage of justice.
After Henry served 26 years, and following 55 applications to reopen his appeal, his lawyers convinced three judges of the B.C. Court of Appeal to hear a new appeal.
It is expected that fresh evidence resulting from a Vancouver police investigation, which was a spin-off investigation of serial killer Robert (Willie) Pickton, will be presented.
Henrys lawyers told The Vancouver Sun in February that new evidence pointed to another suspect, a man referred to as Mr. X. whose identity is protected by the court.
Sandford said Henry has been a model prisoner for 26 years.
He is been an exemplary prisoner. He doesnt have any significant disciplinary records, and he is well regarded in [prison].
She said Henrys grown daughters, who have long championed his appeal and release, will support him as he adjusts to his new life.
[Being released from prison] is a very difficult adjustment for anyone who is been in custody for that period of time.
It is an enormous thing to contemplate getting back to the everyday world.