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Rights + Justice

The Innocence Trap

Refusing to admit to a crime he didn't commit may have cost Ivan Henry huge. First of two.

Sam Eifling 23 Oct

Sam Eifling is an independent American journalist based in Toronto. Reach him by email or via Twitter @sameifling.

When the British Columbia Court of Appeal let Ivan Henry out of prison after more than 26 years, the stocky one-time carpenter emerged into the daylight and marveled at having missed the previous quarter-century. "I come from 1982," he said.

Back then, Henry was a framer who supplemented his income with small gigs. He'd buy up Jordache pants at warehouse prices and sell them for $12-a-pair out of hotel rooms. He was just getting into selling microwaves, making $50 each. He was clever, but not what you would call a fancy guy. Then gross judicial mistakes made him a time traveler.

The first time I arrange to meet Henry, he calls from a blocked mobile number and suggests the Hyatt hotel in downtown Vancouver. "Meet inside the side entrance," he says. "There's a spindle there." I know he means a revolving door, though in the moment I can't find the word, stuck as I am on his. "Inside," he instructs me. "There's one of those stupid coffee shops that's everywhere in the world." This is how you know Ivan Henry is truly from 1982. The brand Starbucks doesn't quickly spring to mind.

I arrive early, though he's even earlier, sitting at a window seat with an open cup of coffee. He wears dark shoes, dark pinstriped suit pants and a dark rain jacket with a blue hooded sweatshirt underneath. "Is this OK?" he asks, motioning to the small table in the crowded café. It's fine, I say. We chat for a moment as I set down my bag. Then he asks, "Do you drink?" I do, I reply. "Then let's go upstairs to the bar. I'll throw this shit away."

We walk upstairs and take a seat in the restaurant, which won't be open for another hour. Our booth is lit by soft overcast sunlight. At 64-years-old, nearly half of those spent behind bars, Henry shows his age (he has since turned 66). His hair, once red, is wan and thinning around his forehead. Hard lines etch his face. He's got a stocky, powerful build, with the chunky fingers of a workman.

This visitor from 1982 looks around the posh second-floor digs. In the centre of the huge room is an open-floor cutaway that reveals the lobby below, and it strikes Henry as a frivolity -- so much wasted space. Everything is bigger in 2012, he says. You go to buy a shirt and there's not one shirt but dozens, all the same, in a giant store. While he was gone, the world evolved, Vancouver not least. The population of the city proper shot up almost 50 per cent between '81 and 2011. The price of houses increased sevenfold. Life passed by, and Henry spent the entire time clawing his way out of a bottomless hole. "Then 2000 came," Henry says. "All I was just trying to do was get my law together."

Eventually, he did. The 2010 B.C. Court of Appeal decision that finally freed Ivan William Mervin Henry includes a litany of reasons why he should never have been convicted in the first place back in March 1983 for a string of rapes and sexual assaults that took place in 1981 and 1982. At the time eight women had come forward describing a man, unknown to each, who attacked them in basement or ground-floor apartments.

Henry had a record -- "I committed a breaking-and-entering," he says now, adding, "I think everybody knows that" -- and lived in a neighbourhood consistent with the geography of the attacks. He had a lawyer, whom he dismissed, then represented himself at trial, badly. Perhaps he had too much faith in the system, given his innocence. The jury found him guilty, and deemed a dangerous offender he was sentenced to an indefinite period of incarceration. If he didn't demonstrate his innocence somehow, he would only leave prison on parole or in a pine box.

A pattern in parole

Innocent people have done time since the dawn of prison. In Canada, some 43 men and women have seen their convictions overturned in the past half-century, according to the Toronto-based Association in Defence of the Wrongly Convicted. Since 1989, 1,231 convicted defendants have been exonerated in the United States by the count of the National Registry of Exonerations. Many of these cases required decades to overturn, aided by advances in DNA technology during the 1990s that obliterated old convictions made on flimsy grounds -- shaky eyewitnesses, the crapshoot forensic matches of blood and hair, cops and prosecutors self-certain enough to break the law on the way to a verdict.

When one of these cases is overturned, usually after the efforts of family, pro-bono lawyers, college students, journalists, activists and the prisoners themselves, press coverage focuses, if it does at all, on how such rotten convictions are made and the sense of relief that follows exoneration. Some cases are so grave they spark massive inquiries; since 1987, Canada has undertaken eight, often calling witnesses by the hundreds in testimony that can span an entire year.

How a person is wrongly convicted and imprisoned is one question. Less discussed is how that person remains inside for 10, 15, 26 years or more. Look at enough cases and a subtle pattern emerges. Many of the convicts that courts eventually exonerate were, while in prison, given a chance at parole. A parole board looked at their behaviour, history and the life waiting for them outside, and tried to assess whether they would reoffend. In case after case, given the chance to let an innocent man or woman go free, the board decided not to -- in part because the prisoner claimed to be innocent.

This kink in the parole system has become the target of prison reformers in Canada, the United States, the United Kingdom and Australia. In the meantime, an innocent prisoner's best chance at walking free is being sealed off by parole boards. That can be explicit, as when a board tells an inmate he won't win release so long as he contradicts the court's findings. Or it can be implicit, if inmates think their best odds at release depend on admitting guilt.

Ivan Henry's experience fit the latter. He decided that even applying for parole would be a waste of time. "I wouldn't have [accepted parole]," he says. "Because I wouldn't want the stigma of being on parole and having charges... connected or enjoined to me by an indictment or a warrant that I wasn't guilty of." He also knew that getting out meant living under constant suspicion. "What happens if you get out... charged with 19 counts of rape?" he asks.

Inmates claiming innocence do, with some regularity, receive parole. One high-profile Canadian example is Patrick Kelly, who was convicted of murdering his wife in 1983. Though Kelly maintained innocence throughout his incarceration, he was paroled in 2010. The parole board found that at 60 he was "matured," "deterred by any prospect of returning to jail" and unlikely to reoffend.

But somewhere along the way, Henry was convinced that parole was a non-starter. The board would want him to show contrition, and for him to manufacture it for rapes he didn't commit would have been, in his eyes, a crime itself.

"Why would I take that?" he says. "I don't want to be condemned by history. I don't want to go down as being a real bad guy. I'd rather just die there. I didn't want to leave a history behind that wasn't true."

The innocence factor

Game theorists refer to an enduring paradox in human behaviour studies as the prisoner's dilemma. It goes something like this. You and a friend are arrested and charged with a crime. Whether you are guilty is irrelevant -- let's presume you're innocent. Held in separate cells, you're both told that if you confess and testify against the other, you'll receive a merciful sentence of two years or so for helping to put away your friend. You may decide to keep mum, but if the friend takes the deal you'll be dealt a hard 10-year sentence.

Singing usually looks wise. Trouble is, if your friend decides the same and you both confess, the prosecution has all it needs to hand you both stiff sentences -- of eight years, say -- quashing the benefit of confession. And what if neither of you turns? The prosecution has little else to go on. You'll face lesser charges, maybe do a year apiece. Your best option is to play along with what happens in that other room, while your worst option is to protest innocence and be pegged as guilty.

Courtroom dramas and crime coverage make the essential mechanics of the prisoner's dilemma intuitive to grasp. A suspect is arrested and tried, and may plead guilty either to a lesser crime or to the full crime, hoping for a lenient punishment. This ends with a verdict and perhaps a sentence. The court assigns time. As that time passes, and the debt is paid back in days and years, a prisoner may apply for parole.

Parole boards are arms not of the judicial branch, but the executive. Their charge is not to review the determination of the courts. Instead they evaluate the apparent fitness of a prisoner to re-enter society. The Parole Board of Canada's mandate calls this "decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens."

To determine this timing and these conditions, the parole board assesses inmates against a matrix with a series of points to check. Its goal is to quantify the chances a prisoner will reoffend, and how severely. Some of the factors involve conduct and psychological evaluations during incarceration, while others involve the expectations of what life will be like upon release, right down to where the prospective parolee would sleep at night.

Rehabilitation often involves treatment programs aimed at forcing inmates, especially those doing time for sexual crimes, to confront the circumstances and motives of their wrongs. If an inmate maintains innocence, however, then he largely precludes himself from programs in which owning the crime is integral. If he can't participate in programs designed to help him toward the progress the parole board wants to see, then the burden on other factors on the checklist substantially rise. That's how a person who claims to be innocent faces a much longer road to leaving prison.

'The innocent prisoner's dilemma'

Just as there's no way to know how many innocent men and women have been convicted, there's no way to know how many, once they weigh their odds of release, decide their quickest way out is to play guilty for the parole board and to own a crime they didn't commit.

"You can't start healing unless you say you did it, right?" Ivan Henry says. I ask him whether he believes that. "No," he replies. "But they believe it. It's in your mannerisms and the way you act. The way you think and the way you talk. The way you look. That determines how you get out."

This reliance on apparent repentance exacerbates what Canadian legal scholar Bruce MacFarlane has described as the "triple failure of the justice system" when a person is wrongfully convicted. A victim and family are led to believe the wrong person committed the crimes in question. Somewhere, a guilty person usually has gone free. And, gravely, society's most profound punishments are visited upon an innocent person.

"People ask me 'What does it feel like to be in jail for 27 years?'" Henry says. "I say, 'Here, I'll lock you in that room there and I'll let you out once in a while for 27 years.' There's no other way to describe it."

Riffing on the game theory puzzle, a University of Utah law professor named Daniel Medwed dubbed the parole issue "the innocent prisoner's dilemma" in a seminal 2008 article for the Iowa Law Review. In this scenario, claiming innocence only works against the prisoner, and through meetings with the parole board and word-of-mouth from fellow inmates, he realizes he must balance his conscience with his odds of ever being free.

"The process is, 'I can stick to my guns, and stay here in prison, or I could just get the situation over with and admit guilt,'" Medwed says by phone from Utah. "I really think a lot of guys do it that way. They're sitting there, they don't think their innocence claim is going anywhere, and they just decide, 'What the hell? I'm just going to give them what they want. I'm not getting out of here anyway for my innocence claim. I'll deal with it when I get out.'

"It's very much a reaction to the stresses of prison. It's sort of a short-sighted but totally rational process. And it takes a lot for the innocent guy to just stick to his guns. It takes a lot."

'Would you say you did something if you really didn't?'

Ivan Henry is only the most recent of Canada's exonerated prisoners, and like him many of his predecessors never stopped maintaining their innocence while incarcerated.

James Driskell, convicted in 1991 for shooting his friend Perry Harder in the chest and stuffing him into a shallow grave near some train tracks in Winnipeg, clawed back against the flimsy physical evidence the Crown brought against him. By the time he was granted a new trial in 2005, the prosecution's case was so thoroughly eroded the Crown stayed the charges.

Then there was Donald Marshall Jr., who in 1971 was convicted of knifing an old man in a park in Nova Scotia. He got out 12 years later when witness statements changed.

The Marshall case was considered so grievous it spurred a commission of inquiry into a wrongful conviction in 1987, the first of eight such inquiries that Canada has undertaken.

Romeo Phillion, convicted in 1972 of the stabbing death of an Ottawa firefighter, spent 31 years in prison maintaining his innocence, claiming, like Henry would later, that he didn't apply for parole because it would be admitting guilt.

One was for David Milgaard, incarcerated for the rape and murder of a young Saskatoon nursing assistant who had been waiting at a bus stop. He told a newspaper reporter in 1989 that a parole board member informed him he'd never be released if he continued to profess innocence.

"I just asked her," Milgaard said, "'What would you do if you were me?' She said, 'I'd do anything to get out of prison.' And I said, 'Well, I won't.' And I won't. It was a very terrible crime. Would you say you did something if you really didn't do it -- something that was as horrible as that?"

Milgaard's relationship with the parole board became so strained, his counsel David Asper coaxed him to stop shy of outright antagonism. Part of the parole board's role, Asper says, is to probe the psychological stability of the inmate, and in Milgaard's case, his hot disposition stemmed from the fact that he didn't belong in prison. In one instance, Asper recalls, the board asked Milgaard about some dope they knew he'd smoked.

"The chair of the hearing looks at him and says, 'Mr. Milgaard, do you smoke marijuana?'" Asper says. "And he looked back at him and said, 'Don't you?' He knew he had nothing to lose. It was subtle but clear defiance... Not only was he going, 'I'm innocent,' if you'll pardon the language, he was going and saying 'Fuck you, I'm innocent. You have no moral authority over me.'"

Milgaard never received parole. He was released in 1992 after the Supreme Court of Canada agreed with his appeal. A new trial was ordered, and Saskatchewan stayed the proceedings. In 1997, DNA evidence effectively exonerated him. Canada launched a commission of inquiry. Again, as in the Marshall case, the findings said nothing about the role that parole denials had in effectively extending his sentence.

Back in Vancouver, enough time has passed that a server returns to take our beer order. Ivan Henry, gracious as can be, orders a draught Molson Canadian. As she leaves, Henry confides that he doesn't usually drink, but that a little while back he went on a bit of a blitz.

"You know all that shit come out, it's like pus? You gotta squeeze it out and get rid of it?" he explains. "That's what happened with my emotions. My emotions got the best of me. You know, it comes back."

When the server returns bearing the cold beers, Henry says, "Thank you very much."

"Oh, well, you were patient," comes the reply. "We appreciate it."

Find part two, on breaking the innocence trap in both Canada and the U.S. parole systems, here.  [Tyee]

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