Why do the innocent plead guilty?

The answer is simple for Anthony Hanemaayer, convicted in 1989 of a knifepoint sex attack that serial killer Paul Bernardo has now confessed to perpetrating.

Mr. Hanemaayer, whose case will be reviewed Wednesday by the Ontario Court of Appeal, says he succumbed to his fear of being convicted and given a heavy prison sentence. In return for pleading guilty, he was given a sentence of two years less a day.

It is an example of what defence lawyer John Struthers has called the "gross inequality" in an accused person's bargaining position.

Mr. Struthers told an Ontario inquiry earlier this year that the justice system is so stacked against the criminally accused, defence lawyers watch helplessly as clients who are likely innocent plead guilty to avoid a trial, especially if they face testimony by an expert.

What do you want to know about wrongful convictions? What questions do you have about Canada's justice system? Do you trust the system? Should it be fixed?

Joanne McLean, a founding director of the Association in Defence of the Wrongly Convicted , joined us online Wednesday to discuss the case.

Your questions and Ms. McLean's answers appear at the bottom of this page after 3 p.m.

Joanne McLean was called to the bar in 1990. She is a sole practitioner working exclusively in criminal defence and primarily wrongful convictions. She has represented Guy Paul Morin, David Milgaard, Thomas Sophonow, Robert Baltovich and others.

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Brodie Fenlon, globeandmail.com: Thank you so much for joining us today Ms. McLean. Let's start with what happened at the Ontario Court of Appeal this morning. For readers new to the story, can you quickly recap what happened to Mr. Hanemaayer. Why did he plead guilty? Were his motives typical in other cases?

Joanne McLean: This was a case of eyewitness misidentification, the single most common cause of wrongful convictions. Mr. Hanemaayer was 19 years old, charged with break-and-enter and assault with a weapon (a knife), on a 15 year old girl who was asleep in her bedroom. The girl's mother entered the bedroom and briefly saw the attacker, now known to be Bernardo. She did some detective work herself, thinking maybe it could have been a person from a construction crew that was working in the neighbourhood. She provided them with a description, the construction company provided Mr. Hanemaayer's name, and she passed the name on to the police. The police put Mr. Hanemaayer's photograph into a photo lineup and the victim's mother picked him out. At trial, the victim's mother testified, very convincingly, that Mr. Hanemaayer was the man who broke into her house. His lawyer advised him that based on her evidence he was certain to be convicted, and could expect to get 6 to 10 years in the penitentiary after a trial. He was advised to take the Crown's offer of a guilty plea in exchange for a sentence of 2 years less a day in the reformatory. Terrified, Mr. Hanemaayer took the 'deal'. In April, 2006, Bernardo admitted the offence, and provided details only the perpetrator would have known.

Bert Russell from Paradox, BC writes: I have watched over the years as the plea bargaining system is used and abused by defence lawyers and Crown prosecutors ... For a defence lawyer to say the system is stacked, probably ignores the evidence the Crown had that is often bartered away for convenience of both parties. There is almost certainly more going on than has been disclosed by this Globe and Mail article i.e. "innocent pled guilty in our permissive Justice system." [Your thoughts Ms. McLean? Is the problem with plea bargaining a two-way street?]

Joanne McLean: I should say, first, that the defence lawyer quoted above was not me. Plea bargaining is, of course, a two-way street. In all such cases, the Crown gives up the opportunity of securing a harsher punishment in return for the certainty of obtaining a conviction. The accused, innocent or not, who accepts a plea offer from the Crown, receives a lesser sentence than he would risk by going to trial (the difference between a post-trial sentence and a guilty plea sentence is sometimes referred to as an 'entertainment tax')

David Tarbuck from Ukraine writes: This scene is just one more example of a correct policy of eliminating the death penalty. Even the despicable Paul Bernardo has something useful to say and do- namely to [correct] a wrong done to another as punishment for a deed of his doing. [David makes an interesting point. Your thoughts?]

Joanne McLean: As a Canadian, I am proud and relieved that the death penalty has been eliminated from our legal system. It is not a deterrent, it is barbaric, and reprehensible on many levels. Its most serious flaw is, of course, the risk of executing the innocent. I question whether Bernardo's motives are the least bit altruistic, but there certainly was a fortuitous outcome for Mr. Hanemaayer who would not otherwise have known that the real perpetrator had admitted to the crime for which he did the time.

OttawaMensCentre.com from Ottawa writes: Our courts are controlled by a feminist judiciary whose political unwritten mandate to assume an accused is guilty and to be willfully blind to any evidence that might support innocence. An incredible number of 'criminal' charges are generally one person with a self interest in 'gaining' a conviction and if not a conviction, the advantage of putting the other party though the incredible financial, emotional and psychological stresses of going through a criminal trial. The criminal charge is often used for the sole purpose of gaining an advantage in family court to portray one party a victim. Its well established that most of the time, the 'complainant' is a woman and the accused is a male… [Do you agree Ms. McLean?]

Joanne McLean: Unfortunately, the oft-repeated "innocent until proven guilty" is, in fact, the opposite of what happens when criminal charges are laid. Perjury, or the lying witness, is one of the causes of wrongful conviction, and the motives are varied. Police investigations should weed some (or most) of the cases which rely solely on the word of a dubious witness with a motive to manufacture evidence, but the "law and order" regime in which we now find ourselves has created some situations where the police attitude seems to be to lay charges, and let the courts sort it out.

Ken DeLuca from Arnprior writes: Is it possible for an accused to enter a plea of ' No contest' which would allow for no trial but no admission of guilt in exchange for a pre-determined sentence or range of sentences?

Joanne McLean: This is a very good question. In Canada, there is no "No contest" plea. I have done something similar in the past where a client did not want to dispute the charges for offences that he had, in fact, committed (based on physical evidence) but which he had no memory of committing. In that case, at trial, he pled not guilty, admitted that the evidence if heard, would be believed, and a conviction would be entered, but that we would waive the necessity of hearing the evidence. (The victim was an emotionally handicapped 12-year-old and it would have been traumatic for her to have to testify). The resulting sentence was one suggested jointly by the defence and the prosecution.

L. Morgan from Toronto writes: Do you feel that the electronic recording of all interrogations (contact) between law enforcement officers and suspects would help improve the credibility and reliability of confessions? If there was an objective record of the interrogation, would it not be easier to determine if the suspect is telling the truth and that they fully understand the repercussions of their confession?

Joanne McLean: One of the cases we at the Association in Defence of the Wrongly Convicted (www.aidwyc.org) are working on now is that of Romeo Phillion, a false confession case from 1972. Recording ALL contact between police and suspects would certainly improve the record of what was said, by whom, and how. I doubt that it would make it easier to determine whether or not the person was telling the truth, but the lack of a full record is one of the biggest problems we have with the so-called confession cases. In Mr. Hanemaayer's case, there is no confession. When questioned by the police on arrest, he told them he knew nothing about the break and enter for which he was charged. To enter a guilty plea, one need only "admit" the facts read out by the prosecutor in court.

On the discussion to today's story about the acquittal, Jeff Kelly from Kitchener, Canada writes: Bear in mind he did plead guilty. That in NO WAY makes it OK to have someone convicted for a crime they did not commit, but... How on earth can the Police / Justice System be held accountable when someone pleads guilty to a crime they did not commit?

Joanne McLean: The police are responsible, in this case for: 1) not investigating the Scarborough Rapist as the possible or likely person who broke into the house and stood, with a knife, over the bed of a 15 year old girl during the Scarborough Rapist's reign of attacks; 2) failing to appreciate what is obvious to most people involved in the criminal justice system: break-and-enter is often an incomplete or interrupted attempt at sexual assault; 3) failing to investigate Bernardo (ever) for any and all sexual assaults on young women, particularly those which took place within blocks of his residence; 4) failing to notify Mr. Hanemaayer, the Law Society of Upper Canada, Legal Aid or the judiciary of Bernardo's admission (including facts known only to the perpetrator) for which Mr. Hanemaayer suffered for 20 years. The Justice System has no means of pro-actively seeking out cases of wrongful conviction, no funding for those who have been wrongfully convicted to seek exoneration, allows convictions to be based on nothing but the truthful/credible (but nonetheless erroneous) evidence of a single eyewitness, prohibits expert evidence which educates about the dangers of eyewitness identification, and offers lesser sentences in return for guilty pleas where the Crown has little or no case, or as a bonus for not forcing the Crown to meet its burden in law: to prove the case beyond a reasonable doubt.

Dean Johnson from Canada writes on the discussion: Not on any magnitude such as this, but I too have pleaded guilty to a crime I didn't commit. In my case, I was very poor at the time and didn't have enough money for legal aid. It was also my word against a lying cop. From the whole experience I was amazed at how much less penalty there is when you just shut up and plead guilty - it's like 1/100 of the sentence you'd get if you fought and lost. [Ms. McLean, care to elaborate on this? What role does poverty play in these cases? Also, I've heard some say that because legal aid pays so poorly, top-notch lawyers avoid these cases when there's more lucrative work elsewhere. As a result, people with limited means plead out rather than take their chances with a novice or untested legal aid lawyer. Is that true?]

Joanne McLean: Funding is an enormous problem. As I've said in answer to another question, the sentence after trial is sometimes cynically seen as an entertainment tax - the penalty for having a trial. Officially, it is usually referred to as a credit for the remorse supposedly shown by a guilty plea. Parole works in a similar way. The convict who shows remorse for his crime is granted parole much sooner than one who insists on his innocence. Few people have the strength David Milgaard did - refuse to admit to something he didn't do. For that, he spent nearly 23 years in the penitentiary. Romeo Phillion served 31 years, refusing to even apply for parole because it is for 'guilty people'. Those people are rare. Many, for many reasons, of which poverty is one, do, as the reader suggests: just shut up and plead guilty. Most criminal lawyers will take legal aid certificates, so I don't think the term "legal aid lawyer" is particularly apt in this province. We do not have a public defender system. Generally speaking, there is not a great deal of remuneration in criminal defence work - "street crime" is not generally committed by the wealthy.

Phil King from Ottawa writes: Over the past few years my trust in the legal system has degraded considerably, to the point where I begin to wonder whether convenience and gamesmanship have over taken the principles and ideals of justice. I see serious police misconduct, RCMP election interference, parliamentary attempts to impose reverse-onus, judges interfering in basic parenting and worst of all, a seemingly endless parade of innocent people spending years in jail for heinous crimes they did not commit. Ms. McLean, what needs to happen to restore public confidence? I ask, because right now I can't imagine what would restore mine.

Joanne McLean: At least as it applies to wrongful convictions, a large part of the erosion of public confidence is the failure of the system to actively indicate its fallibilty and exhibit a willingness to expose and correct errors. We find a prosecutorial attachment to the defendant, once charged, to be virtually unshakeable. There is an enormous amount of work involved in overturning cases of wrongful conviction, and often it takes years. And years. Once successful, the publicity is enormous and the justice system is, quite rightly, viewed as a system composed of human beings who make mistakes. It seems that many prosecutors (and the system itself) prefers to try and wait it out, in the hopes that the victim of a miscarriage of justice will be unable to 'prove' his innocence, and the system will not be seen to have 'failed'. Personally, I would have a lot more faith in a system which set up a funded, independent body to review allegations of wrongful conviction, with the power to refer the cases to the Court of Appeal, wider powers in the Court of Appeal, and a system of fair compensation to the victims of wrongful conviction, and better education of police, lawyers and the judiciary on the dangers of wrongful conviction, the horrific cost to the victims and society (as the real perpetrator goes free) and the means of prevention. The creation of such bodies and procedures would signal that here is a system prepared to acknowledge that sometimes mistakes happen, and they will be corrected. And it won't take 20 years. Or 30. And it won't depend on the dedication of individual lawyers and concerned citizens to set aside wrongful convictions.

Brodie Fenlon, globeandmail.com: That's all the time we have. Thank you so much to Ms. McLean for joining on this busy day. And thank you to Globe readers for your questions.