Dear Jailer: Free Nyki Kish

Poetry is Dead by Nyki Kish

Dear jailer

Hello.

I just wanted to say hello.

You see me everyday

But you never say hello.

You’ve yelled at me before

You’ve touched my body before

You’ve written reports on me before,

But you’ve never said hello.

Excerpt from A Poem written by Nyki Kish from her cell at the Grand Valley Institution for Women in Kitchener, Ontario.

Faceless, and often nameless, Nyki (Nicole) Kish and hundreds of other female inmates are locked behind walls with nary a nod nor a friendly hello by those who stand “guard” over them.

Nyki Kish

Despite the general belief that losing our freedom is equal to losing our right to speak and be treated humanely, I want to defy such a ridiculous assumption with a more enlightened view:

That each of us, no matter where we may end up, is a precious life worth knowing, honouring and giving voice to.

The poem that begins this article is from Nyki’s own Personal Blog, This Wall is Not Infallible — a space where she continues to assert her voice and share her invaluable point of view. The beauty of this gesture is in her refusal to let the system define her or constrain her thoughts; it’s an eloquent nod to who she is as a poet, musician and activist. But it’s also an ironic commentary on how (and why) she came to be convicted by the media and a judge. A judge who presented a confounding judgment of guilty on the charge of second degree murder.

I may not be a legal analyst, but when I read the documentation surrounding this case, I was astounded by Justice Ian Nordheimer’s verdict. The case can be summed up best as a messy heap of contradictory and flawed evidence.

The details that led to the stabbing death of Ross Hammond are chaotic and complex. I won’t expound on all the details here, but will highlight the areas I find most troubling. I would encourage you to visit the freenyki.org site and read the Trial Summary, the Nordheimer Verdict and the very concise summary of the evidence and judgment written by Clive Wismayer. There is also an excellent wiki page dedicated to the Nyki Kish case.

Study Calls for Repealing Safe Streets Act

Trial-by-media and the Political (Ill)will of a City

It is a rare condition in Canada when a defendant is branded so guilty by the media that he or she doesn’t receive a fair trial. But this is exactly what happened to Nyki Kish.

Even before the trial began Nyki was branded “The Panhandler Killer.” Not only was this a huge misrepresentation of who Nyki was (by all accounts), but it painted her with an ugly brush that pointed to an even uglier red flag:

A strong political bias driven by a city (Toronto) bent on criminalizing the homeless under the Safe Streets Act.

Nyki Kish was not homeless nor was she a panhandler, but she was living a lifestyle that asserted her right to defy the capitalist system she had come to abhor. Nyki writes poignantly about this very subject in an essay she wrote for The Peak entitled, An Abolitionist in Prison: How Living by My Values got Me Framed with Murder.

a The Peak, Criminalization of Dissent, Issue 4, Vol. 51

There are three critical points related to the media that cannot be overlooked in this case.

Despite the fact that the media was initially allowed to run amok with negative and wild accusations about Nyki and the case, once Nyki was out on bail, the courts put her and her family under a strict publication ban. Both would prove to be detrimental to her defense.

[Read here to learn more about the Canadian Justice System and the Media]

The ban prohibited her or her family from speaking publicly about the case (or about Nyki herself). Given her harsh and biased treatment in media, this restriction ensured that no counter view would ever be presented in the court of public opinion. This is significant because it leads to my next important point.

An irresponsible and highly pernicious media surely tainted the jury pool. And directly affected Nyki’s defense strategy. In Canada, a defendant can request a trial by judge rather than a jury. They pursued the first option–for obvious reasons–surely believing that a judge would be more impartial. Initially, their request was opposed to by the prosecution. However, once the prosecution learned who the judge was, they readily agreed. Now, I can’t say why this change was so significant,  but it does lead to my third and final point on this matter:

Free Nyki

How much did the public outrage to criminalize “street people” (fueled by a jacked-up media) negatively affect the political landscape and outcome of this trial? We are taught that the judicial system rules with impartiality, but we know from other wrongful convictions that this isn’t always the case. Based on how the evidence was applied, is it safe to assume that Nyki became the scapegoat for this public outcry? Let’s look a little closer at the judge’s ruling.

Circumstantial Identification AKA Eye Witness Testimony

In his ruling, Justice Nordheimer stated that his decision was based predominantly on “circumstantial identification.” Now let’s ponder that for a moment. Say, what? Essentially, this is fancy speak for eye witness testimony, of which, in this case, there was a truck load. Testimony was presented (and disregarded) from at least 20 different witnesses, most of which was contradictory, erroneous or not properly followed up or even considered. For example, witnesses who gave crucial evidence at the preliminary hearing did not testify at trial. [I can’t possibly expound on all of the details of this case–there is just too much! So, I would again encourage you to read through all the documents available as cited further above].

In addition, Justice Nordheimer himself admits to the following in his judgment with respect to the reliability of eye witness testimony and to the testimony that he himself relied on to make his final decision:

I am aware that, with one exception, none of the witnesses, on whose evidence I rely, positively identified Ms. Kish, or indeed Ms. Watts, from any photographic line-ups that they were shown by the police.

Interestingly, the trial summary on freenyki.org reports that “the one exception Justice Nordheimer was referring to is of the positive identification of Faith Watts.”

And then the following statement from Paragraph [74] of the Nordheimer judgment dated March 1, 2011:

I am well aware of the frailties that come with eye witness identification.  We caution jurors very strongly about these frailties and the need to take special caution in approaching such evidence.

Come again? What is truly astounding about both these statements is they clearly show a judge who ignored his own admonishment and used a circular form of reasoning with “cherry-picked” testimony. Here is a brilliant quote from Wismayer critiquing Justice Nordheimer’s approach to building his narrative:

The problem with the judge’s approach is that he seems to have elevated himself above the acute difficulty about which mere jurors must be cautioned ‘very strongly’ and arbitrarily cherry-picked his way through the evidence to come up with the following narrative …

Wow. On a final note, there is substantial data supporting the unreliability of eye witness testimony–particularly as it pertains to wrongful convictions. According to the The Innocence Project:

… eyewitness misidentification is the single greatest cause of wrongful convictions in the [US], playing a role in nearly 75% of convictions overturned through DNA testing. While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable.

Flawed Forensics and Destroyed Evidence

The conclusions that the judge came to with respect to the forensic evidence is equally confounding. At this stage, I would highly recommend that you read through pages 4-6 of Wismayer’s document which carefully lays out and analyses the forensics related to the knife and the DNA evidence. Here is a passage from Page 4:

Both Hammond’s and Nyki’s blood were found on the knife he carried away with him, a fact from which the judge drew the inference that the knife caused their wounds.   He said:

‘In addition to all of this evidence, however, there is the salient fact that Ms Kish was stabbed.   She was the only female who was stabbed.   Common sense dictates that she must have been stabbed while participating in the second fight where Mr Hammond got hold of the knife.   There is no other logical explanation for how Ms Kish could have come to be stabbed … all of the witnesses I have mentioned have said that there was only one female involved in the second fight.’[1]

(My emphasis)

With respect to the judge, common sense dictates no such thing.

---

[1]           Judgment para. [128]

• Hammond could have obtained the knife in the first fight.
• His blood on the knife isn’t conclusive as the knife that killed him. A cut on his left hand plus an amputated right thumb may have left the traces from a struggle.
• Nyki had no criminal history, nor did she have a history of violence.
• Apart from a tiny spec of Hammond’s blood found on one of her shoes, no blood, hair fibres or DNA of Hammond’s was found on Nyki. In turn no blood, hair, fibres or DNA of Nyki’s was found on Hammond.
• Nyki’s only injury was the cut to her arm, which doesn’t fit with expert forensics on injuries acquired during a knife fight.
• Nyki did not leave the scene. In fact, she walked up to where Hammond was receiving medical attention to get treatment for herself. Why would a perpetrator of a crime place herself where she could be identified by the victim?
• Female, Faith Watts, who admitted to having had a knife on her also had a fresh bite mark on her arm when she was arrested.