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August 17, 2009 | by  | in Features |
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Innocence

In 1991, a four-year-old boy attending Christchurch’s Civic Creche told his mother he “didn’t like Peter’s black penis”.

That statement was the catalyst for a months-long investigation by the police and the Department of Social Welfare into sexual abuse at the preschool.

In interviews with more than 100 children, the investigators uncovered allegations of sexual abuse and satanic acts—including being locked in cages or tunnels and buried in coffins—and arrested five of the creche’s employees on multiple counts of sexual violation and indecent assault.

The charges against the four female staff were later dropped, but the sole male defendant, Peter Ellis, was found guilty in 1993 of 16 charges against seven children.

He maintains his innocence, but the fight to clear his name—while largely supported by the public—is yet to overcome the hurdles that make up the New Zealand justice system.

The Innocence Project helps people like Ellis in their fight, by obtaining and retesting evidence to help overturn a wrongful conviction, launching appeals and fighting for judicial change.

The project, first established at New York’s Yeshiva University in 1992, is a non-profit organisation which has obtained 241 exonerations on DNA evidence alone in the United States—17 of which cleared death row inmates.

New Zealand’s Innocence Project (IPNZ) was established in 2007 by Victoria and Otago Universities, and has already been approached by several dozen people seeking its help, manager and Victoria University Psychology Department research fellow Matthew Gerrie says.

IPNZ is still screening many of those cases for its ability to assist, but hopes to appeal its first case before the end of the year by petitioning the Governor General to return the case to the Court of Appeal under section 406 of the Crimes Act—the royal prerogative of mercy.

Unlike the United States Innocence Project, IPNZ focuses on non-DNA evidence, particularly in areas where its leaders—Dr Gerrie, who specialises in human memory errors, Victoria psychology professor and false memory specialist Maryanne Garry, Otago University psychology department head and child memory expert Harlene Hayne and Otago psychology lecturer and child witness testimony expert Rachel Zajac—have expertise.

Dr Gerrie is unable to comment specifically on the cases IPNZ is screening or assisting, but says the Ellis case is one on which IPNZ’s leaders have worked in the past, given its basis on the evidence of very young children, extracted through various interviewing methods.

The case of David Bain, acquitted this year of murdering five family members in 1994, has helped bring wrongful conviction back into the spotlight, long after the 1979 pardon of Arthur Allan Thomas, found guilty by two juries of a 1970 double murder after the police planted evidence.

They are but a few of the estimated number of innocent people put behind bars for crimes they didn’t commit. That number is estimated at about 3.3 percent of convictions, but it’s hard to be exact, Dr Gerrie says.

“This is the big question that everyone’s trying to answer and the correct answer to this is, we don’t know.

“I think we are entirely eclipsing what the original Innocence Project founders thought. I don’t think it’s surprising the numbers that we have, that we are coming across.”

In the United States, the statistics that are available are astounding: of the 241 DNA exonerations, 143 were African American—59 percent compared with a general population of about 13 percent. The average age of exonerees at the time of the conviction was 26, and they served an average of 12 years, or a combined total of more than 3000 years.

Eyewitness misidentification was a factor in 74 percent of the convictions later overturned, while about 50 percent involved unreliable or erroneous forensic science. False confessions were involved in about 25 percent of the cases and snitches in another 16 percent.

New Zealanders are increasingly coming to realise that wrongful conviction isn’t just something that happens in America, Dr Gerrie says.

“People are horrified by the stories of the wrongfully convicted… There is an increasing awareness of errors in our justice system in New Zealand.

“It wasn’t long ago that some people… thought that these types of wrongful conviction only really happened in North America, it’s a North American problem. But we’ve come to realise that there are some errors that do occur here.”

The government has been reluctant to acknowledge errors in the justice system, particularly in regard to the Ellis case, which has been to the Court of Appeal twice, followed by a ministerial inquiry and numerous calls for a royal commission of inquiry, and may now be headed to the Privy Council.

“I think any government is always reluctant [to acknowledge] not just errors in the criminal justice system, any errors with any government. If you’re in government you want to believe your government is true and sound and I don’t believe that’s an unreasonable thing to expect of our government,” Dr Gerrie says.

“All I can say of New Zealand in terms of that issue is I think we’re following a very similar trajectory to other countries where we are becoming aware of some of these errors in our criminal justice system.

“It seems some of the first reactions are to say that they are an anomaly or some coincidence and then we’re coming round to a realisation that it’s actually systematic errors that cause these errors and it’s a matter for us to fix that.”

Students interested in volunteering for the Innocence Project can contact Dr Gerrie at ipnz@vuw.ac.nz.

New Zealand cases of wrongful conviction

INNOCENT
ARTHUR ALLAN THOMAS spent nine years in prison for the 1970 murder of Harvey and Jeanette Crewe. He was pardoned after being found guilty at two trials—it was later discovered the police had planted a gun cartridge linking Thomas to the case. He was awarded $1 million in compensation.

DAVID DOUGHERTY was jailed in 1992 for the abduction, sexual violation and rape of an 11-year-old girl earlier that year. Four years into his nearly eight-year sentence, after two trials, two High Court appeals and a petition to the Governor General, his conviction was overturned on DNA evidence.

That evidence identified the real offender, Nicholas Reekie, who was convicted of the crime in 2002, along with other charges including sexual attacks on three other women. Dougherty was released in 1997 and later awarded $868,728 compensation.

AARON FARMER was sentenced in 2005 to eight years in jail for a September 2003 rape in which the victim identified her rapist as having “rat-like” features. His conviction was quashed in 2007 by the Court of Appeal after important alibi evidence was kept from the jury, and a fresh trial was ordered. DNA from the case was retested in 2008 and excluded Farmer.

ACQUITTED
DAVID BAIN was convicted 1995 of the murder of five family members in their Dunedin home the year before. His first appeal to the Court of Appeal in 1995 was dismissed, and the Privy Council declined to hear an appeal in 1996. He then petitioned the Governor General for a pardon, before a Ministry of Justice inquiry from 1998 to 2000. The ministry recommended to the Governor General he send the case back to the Court of Appeal, which reconsidered the case again in 2003 before dismissing it.

Bain then appealed to the Privy Council again in 2007 and his conviction was overturned. At a retrial this year, he was found not guilty of all of the murders.

The US Innocence Project

RONALD COTTON was convicted in 1985 of raping Jennifer Thompson the previous year, after she identified him in a police lineup. His conviction was overturned on appeal in 1987, but at a retrial he was again found guilty of the rape, along with the rape of a second woman. He was sentenced to life plus 54 years, and appeals to the North Carolina Court of Appeals and North Carolina Supreme Court were dismissed.

After he’d spent 10 years in jail, DNA retesting implicated another man in the second case. Cotton was pardoned and awarded $110,000 compensation. He and Thompson reconciled and now campaign for eyewitness testimony reform.

MICHAEL ANTHONY WILLIAMS was 16 when he was sentenced to life without parole for raping and beating his former tutor in 1981. He was convicted based on eyewitness testimony from the victim, who said she also recognised his voice. He spent nearly 24 years in jail before being exonerated by DNA testing. Upon his release, the Louisiana Corrections Department issued him a cheque for $10.

TROY DAVIS was convicted of murdering a police officer in Georgia in 1989 and sentenced to death. Since his 1991 trial, seven of the nine prosecution witnesses have recanted their evidence; one of the two remaining witnesses has been implicated by others as the gunman.

Numerous appeals to the Georgia Pardons and Parole Board, 11th Circuit Court of Appeal and Georgia Supreme Court have been dismissed. Davis came within hours of being executed before last-minute stays of execution were granted—Chatham County District Attorney Spencer Lawton ordered that Davis be taken to the death chamber and executed, despite a pending appeal to the US Supreme Court, which stayed his execution two hours before it was scheduled to take place.

The Supreme Court later declined to hear a petition from Davis, and his execution has been rescheduled for October. Pope Benedict XVI, former US President Jimmy Carter, Archbishop Desmond Tutu and former FBI director William S. Sessions have all called for a new evidentiary hearing, retrial or clemency for Davis.

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About the Author ()

With her take-no-prisoners, kick-ass attitude, former News Editor Laura McQuillan adequately makes up for her lack of stature. Roaming the corridors (and underground tunnels) of the University by day, and hunting vampires and Nazi war criminals by night, McQuillan will stop at nothing to bring you the freshest news.

Comments (1)

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  1. Angeline Clark McMahon says:

    Angeline Clark McMahon living in Whangarei New Zealand.
    American citizen, New Zealand Permanent Resident.
    Convicted in December 2008 of “Wilfully attempting to obstruct course of Justice in New Zealand on 10th day of January 2007 at Matarau.”
    Sentenced in March 2008 to 18 months. Served 7 months in Auckland Womens Correctional Facility before the NZ Court of Appeal bailed her on 11 September 2009. On 13 October 2009 she successfully appealed.
    The NZ Court of Appeal quashed the conviction, entered an acquittal, and made no order for a retrial.

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