Playing Dirty: A Tale of False Charges

“When pigs fly, wrongful convictions will be dust in the wind.”

Too cynical? Perhaps.

The story I’m about to tell you will shock some, but not those who follow wrongful convictions. Hopefully, it will shed some light on the precarious dance between a media who wants “its dirt” and law enforcement who wants “its perp.”

How much does a desire to “solve” social problems or make a political mark dictate the outcome of an investigation or trial? What’s the cost?

In his paper, Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System, Justice Bruce A. MacFarlane writes:

Criminal investigations and trials take place in the context of the social, political, and economic conditions of the time. In theory, criminal investigations and trials involve an objective pursuit of the truth, but in practice there are many subjective factors that influence the course of events.

MacFarlane goes on to examine “more fundamental-and less visible–environmental or “predisposing” circumstances” in the matter of wrongful convictions:

These predisposing circumstances are often below the criminal justice system’s radar screen, and for that reason they are much more difficult to deal with. Typically, they can be found within one or more of the following institutional or social contexts, or a combination of them:

a) public and media pressure on law enforcement agencies to solve a crime and successfully prosecute the perpetrator …;

b) cases where the public reacts to the background or circumstances surrounding the alleged offender, especially when he or she is perceived as being an “outsider” …;

c) so-called “noble cause corruption,” which for our purposes may be described as an ends-based culture that encourages investigators to blind themselves to their own inappropriate conduct …; and

d) an investigative environment that allows if not encourage the provision and acceptance of pre-analysis and pre-decision-making information that may be irrelevant, speculative, incomplete, out of context, or simply wrong.

With this in mind, let me be clear. This article isn’t about mudslinging the media or law enforcement, necessarily, but it should come as a dire warning to us all. Wrongful convictions will continue to happen if we let these institutions run amok as we all lie patiently waiting for those wily pink ears to take flight.

It is of crucial importance to note that prior to, during and after the trial of Nyki Kish, all of the points cited above were factors that contributed to her wrongful conviction and her continued plight of fighting gross misconceptions about her life and character.

Wrongful convictions will continue to bring irrefutable chaos and hardship to innocent lives, infringing on our rights to public justice and fair trials.

Wanted Poster: Nyki Kish (A parody by Lissa Robinson)

In my most recent article, I discuss the negative role of the media in the case of Nyki Kish. However, as I feared, there is much more to divulge in this troubling tale, which speaks directly to the “noble cause corruption” and the acceptance of information that is “irrelevant, speculative, incomplete, out of context, or simply wrong.”

When the media began reporting on Nyki’s appeal set for October of this year, her supporters were ready for the media jingles (rah rah ‘panhandler killer’) and the public hostility typically aimed at a person convicted of murder.

Many of her supporters posted comments on articles (Toronto Star, CBC and Sun News) in an effort to counter the errors of facts and her negative portrayal in the media. One afternoon, while arguing about Nyki not having a violent past, I was confronted by an ‘assault charge’ reported in 2007. I was stunned and confused.

Luckily, I was able to follow this report up with very reliable sources. What I found was a disturbing pattern of lateral violence in the media and law enforcement. The goal, it seems, was not to report the news factually, but to publicize a false charge that would help portray Nyki as a violent and repeat offender — possibly done in anger and also in an attempt to cast more aspersions about her purported guilt and “shady” character.

On the day cited above, this is what I found (please note the use of “alleged.” This term was likely used to avoid culpability in reporting a false, or rather ABSURD, charge.):

Where did the “tip” about this bogus charge come from?

After more digging, I then discovered an article in The Globe and Mail with more questionable details and equipped with another salacious headliner:

“Suspect in stabbing death is back behind bars for alleged assault“

What are we to make of this? Quoted in the article, Kish’s lawyer seems equally angered and confused by the charge, its timing and how it made its way into the media:

Outside of court yesterday, Mr. Scarfe said he wants to know why police waited until after Ms. Kish had been charged in Mr. Hammond’s death, and her identity publicized in the media, to ask the victim in this case to identify her.

“If an allegation like this is raised, why does it take two-and-a-half, almost three months in order to put a lineup in front of this lady to see if she can recognize her?”

Unbelievable! Equally curious is this bit:

Bail hearings are subject to publication bans, but police information filed with the court alleges that, in the early hours of July 20, an unidentified 55-year-old woman walking near the intersection of Queen Street and Spadina Avenue sought to pat Ms. Kish’s dog.

How convenient.

Why is this so damning to the forces at work here? Because, that charge was a blatant lie. Not only did Kish NOT fit the description of the assailant, but on both days (yes, both days), Kish had solid and very detailed alibis for where she was, who she was with and what she was doing. Here is what Nyki’s mom, Christine Bivens had to say about the news story on the purported charge:

Big story, the panhandler who killed a tourist also attacked an old women, could children and kitties be far behind?

A fitting cartoon I found in an article at ground report – “Amanda Knox, Mignini, witchcraft and tunnel vision – a postscript”

“A. What is tunnel vision?

As noted earlier, the first systematic research on miscarriages of justice was published in 1932 by Professor Edwin M. Borchard at Yale University. In his classic work, Borchard examined the principal causes of wrongful conviction and, for the first time, suggested the existence of a link between public pressure to solve horrific crimes and the “pinning” of  responsibility on a certain suspect …”

So, in the case of Nyki Kish, how much of the investigation was done in bad faith and how much is to be attributed to the environment in Toronto in which law enforcement was pressured by the public to stamp out “panhandlers?” Or does it matter? I think it does. These are questions that we must continue to ask with respect to wrongful convictions in Canada (and elsewhere). As time goes by, I am confident that more details about the misapplications and misrepresentations of the media and law enforcement used in the case of Nyki Kish will ultimately be revealed, and with some diligent work, publicly condemned.

Cop threatened to Taser prisoners

A Toronto cop’s threat to Taser suspects’ testicles was condemned as “disgraceful, unacceptable and shocking” Monday by a Toronto Police spokesman.

The video, released by a Justice Hugh Fraser, shows Const. Christopher Hominuk profanely vowing to Taser two handcuffed prisoners in the rear of police cruisers on May 24, 2010.

“This officer’s actions are disgraceful, completely unacceptable and shocking,” said police spokesman Mark Pugash. “One of the reasons we had these in-car cameras installed was the protection of both officers and the public.

“We could identify the frivolous complaints and the serious ones as we did in this case and followed it up with an investigation by professional standards, which led to this charge,” added Pugash.