| |
Fathers Battling Injustice
James Lockyer, lawyer for the wrongly convicted
Posted By: Dave4Ashley
Date: Saturday, 15 May 1999, at 4:23 a.m.
Courtesy of Nick Kovaks
The lawyer who has 'a cause for a client' James Lockyer is famous for clearing the wrongfully convicted. He's not so big on helping the guilty.
Wednesday, May 12, 1999 Kirk Makin Justice Reporter
Whitby, Ont. -- On his third night of waiting fretfully for a jury to decide the fate of accused murderer Jesse Watkins, defence lawyer James Lockyer shuddered when he heard loud footsteps approaching the counsel room in the Whitby regional courthouse.
He was not yet ready to face the moment of truth. Then again, Mr. Lockyer never is.
"I hate waiting for juries more than anything else," he explained, hunched over a work file brought along as a distraction. "The moment they go out to deliberate, I suddenly find it impossible to picture them coming back and saying, 'Not guilty.' "
The footsteps turned out to be a false alarm. The next day, the jurors finally returned and, to Mr. Lock- yer's enormous relief, pronounced Mr. Watkins not guilty of strangling his girlfriend and making it look as though she had hanged herself.
However, the surprising victory did not change the fact that this high-profile 49-year-old advocate has had too many such nights. He is losing his stomach for trials.
There are too many unpredictable witnesses, too much tension and, perhaps most of all, too many guilty defendants. Mr. Lockyer adheres to the dictum that even the most heinous client deserves a defence, but he has lost interest in being the one who provides it.
"I'm sure some lawyers would not be comfortable with that. But I just don't want to spend my time and energies on someone who did it when I know there are people out there who didn't."
He isn't hard up for business. His client list, which features such entries as Guy Paul Morin and David Milgaard, amounts to a Canadian Who's Who of wrongful conviction -- the issue with which Mr. Lockyer has become indelibly associated in recent years.
As Crown prosecutor Scott Hutchison put it, Mr. Lockyer now has "a cause for a client."
Toronto defence lawyer Melvyn Green agrees that Mr. Lockyer has made the cause his own. "James has worked extraordinarily hard at it," Mr. Green said. "I think he is the lawyer most responsible for raising public consciousness about the risk of wrongful convictions."
Mr. Lockyer reached this pinnacle more by accident than by intention. One of three children, he was born on Dec. 21, 1949, in Orpington, England. At 13, he was shipped 150 kilometres from home to begin public school. He later went to the University of Nottingham for law, but instead discovered the Sixties counterculture.
"I was very much a part of the hippie era," he recalled. "I had hair halfway down my back, went to all the pop festivals and may or may not have enjoyed the odd narcotic."
One day, he attended a protest rally against the visit of a touring South African soccer team. "I underwent an overnight radicalization. The anti-apartheid struggle radicalized me from being a snotty-nosed public-school boy -- which in many ways I still am -- to becoming a socialist."
He came to Canada in 1972, accepting a scholarship to McGill University in Montreal mainly to prolong the joys of campus life. After graduating, he joined the faculty at the University of Windsor, teaching corporate and civil law. He also helped to organize demonstrations against local landlords and the Chilean junta of Augusto Pinochet.
But then, Mr. Lockyer, bored with the law governing contracts and trusts, fired off letters to a dozen Toronto lawyers whose politics he admired. The first to respond was Charles Roach, a vocal spokesman for the black community who specialized in civil rights and immigration cases. He hired Mr. Lockyer on the spot.
Three years later, he was approached through a colleague by Jack Pinkofsky, a relentless pit bull of a lawyer known for taking on the police and legal establishment. "I knew he was a fighter, and that's how he perceived me," Mr. Lockyer said. "On April 1, 1980, we formed a law firm. We have since become this juggernaut law firm."
With more than 20 lawyers on staff, Pinkofsky, Lockyer dwarfs all other criminal firms in the country. "It is, frankly, bigger than I ever wanted to be," Mr. Lockyer admitted.
Known for its aggressiveness both in acquiring clients and in representing them, its lawyers are ubiquitous in the criminal courts of Toronto. "It is a high-volume, high-quality practice," a local prosecutor observed. "They fight cases where other lawyers would just tell their clients to take the plea."
Over his career, Mr. Lockyer has fought 75 appeals, crossing swords with Mr. Hutchison in the one for Mr. Morin's 1992 murder conviction, as well as 15 murder trials and hundreds of lesser cases.
His growing interest in tackling appeals isn't due only to misgivings about being a trial lawyer. "If you want to leave a more significant imprint on the world, appeal judgments have impact for years and decades," he said. "You get more structural change from them than from a trial."
There are also the inquiries. Mr. Lockyer spent all of 1997 representing the family of Guy Paul Morin at the Kaufman inquiry into Mr. Morin's wrongful conviction, and he has been asked by Joyce Milgaard to play a similar role at an coming inquiry into the case of her son, David Milgaard.
The Morin inquiry was heaven-sent. "In Guy Paul's case, we had a real, live case of national interest," Mr. Lockyer said. "Yes, I wanted the inquiry to hurt the system. But I also wanted to work with the inquiry to have a significant impact on the system."
Mr. Lockyer wanted to convey his abiding belief that the justice system is geared toward securing convictions, not finding the truth; and that police and prosecutors develop tunnel vision by convincing themselves that defendants are as guilty as sin.
"Prosecutors like to say their worst nightmare is prosecuting an innocent person," Mr. Lockyer said. "I don't believe it for a minute. A prosecutor's worst nightmare is having to admit they prosecuted an innocent man. A wrongly convicted person becomes a victim on an express train without brakes."
Since helping a Toronto lawyer and friend, Peter Meier, found the Association in Defence of the Wrongly Convicted, Mr. Lockyer has, for little or no pay, spent hundreds of hours cajoling witnesses, lining up experts and publicizing the issue.
As well as costing him tens of thousands of dollars a year in forgone fees, his cause has had another unforeseen effect. In a relatively short period, he has gone from being a fire-breathing advocate to someone who chooses his targets carefully and strives to avoid looking like a zealot.
"I suppose it is the old adage about catching more flies with honey than with vinegar," he said. "I think it is more effective to be aggressive in dulcet terms than to rant and rave. There are occasions when I still breathe fire, but I am definitely more temperate now than I used to be."
Trust and credibility are vital when trying to persuade the judiciary, the media and the public that a convicted killer is really innocent, he said.
At the same time, he is still capable of flaying a witness he sees as untruthful. For example, he launched the Morin inquiry in such a hard-driving manner that opponents were jumping to their feet in protest.
Outside the hearing room, however, he worried aloud that being too strident could cost the inquiry its credibility. He frequently approached observers to ask, "Am I being too aggressive?" Eventually, he settled into a pattern of carefully tailoring the attack to suit the culpability of the witness.
"When you don't barnstorm by exaggeration, people become more respectful of you," he said. "Hopefully, you develop a reputation as someone who, if you say something, it is likely to have some merit. You can also lose your point if you try to make too much theatre of it."
One of his more devastating attacks involved Norman Erickson, who had retired from the Centre of Forensic Science shortly after helping to identify critical fibre and hair links in the Morin prosecution.
It emerged during the inquiry that Mr. Erickson had suppressed evidence that samples had been contaminated in his lab. Had it come before the 1992 trial, this revelation probably would have shattered the Crown's chances of obtaining a conviction.
Mr. Lockyer dealt with Mr. Erickson harshly during his cross-examination. But afterward, he sought him out in private. "I told him I was very sorry. I said I didn't feel very good about what I was doing, but I had to do it.
"He made it clear it was very hurtful to him, but he didn't appear to resent me for it."
Mr. Lockyer also has made some enemies because of his unsparing attitude toward Crown prosecutors.
"I think a lot of Crowns may feel that he has gone over the top on certain situations," said Mr. Hutchison, the Ontario prosecutor. "I have from time to time thought that myself. But I don't think the respect for him [among prosecutors] is grudging any more."
While Mr. Lockyer can be scathing about individual prosecutors, Mr. Hutchison said, "I think James has a lot more respect for the prosecution service than he would say publicly. In my experience, he is a fair opponent. He likes the idea of holding the system's feet to the fire. But, unlike some other lawyers, he backs up his accusations by being an excellent, well-prepared advocate."
Among his defence colleagues, respect for Mr. Lockyer's skills and determination also has risen, although some still consider him self-righteous and egotistical at times.
"He can certainly be abrasive," one Toronto defence counsel said. "But, as a lawyer, he serves an absolutely important role. Nobody else is doing what he is doing."
Another remarked: "He thrives on media attention, but it nurtures him in what he does. If it takes feeding his ego to bring the results he gets, that is just fine with me."
Mr. Lockyer speaks at numerous conferences and workshops -- usually about the wrongly convicted -- and is a relentless researcher, sometimes working through the entire night.
"If you take this job seriously -- which you must, since other people's lives are in your hands -- it is hard not to live, eat and sleep each case," he said.
His accomplishments have come with a price. Others at his firm disapprove of how much time he devotes to his cause, and his personal life has been thrust into the background.
Once married but now single, he spends much of his rare leisure time sailing. At such times, he refuses to talk about work, reverting to a side of his personality friends describe as boyishly engaging and mischievous.
He is a committed New Democrat who has twice run for the party as a sacrificial lamb in unwinnable federal ridings. He also is a founding director of New Leaf, a 15-year-old home for the developmentally handicapped north of Toronto. He became involved because a close friend, Stan Smith, created the centre.
When fighting to free someone he feels was wrongly convicted, Mr. Lockyer works a deft juggling act.
First, he and his colleagues at the Association in Defence of the Wrongly Convicted search for the sort of fresh evidence appeal courts are likely to need to order a new trial.
"The problem with appeal courts is they are focused on process, not on guilt or innocence," he explained. "The way around this is fresh evidence -- and in probably one-third of my appeals, I find it."
Behind the scenes, meanwhile, he alternately strokes and scolds police and prosecutors. At the right moment, Mr. Lockyer will court media publicity in order to apply pressure to officialdom.
He is a master of pulling the right levers, said Mr. Green, the defence lawyer.
Mr. Green recalled that during the campaign to win Nova Scotia's Clayton Johnson a new trial in the murder of his wife, Mr. Lockyer hunted down scientific experts from around North America in order to shatter the prosecution case.
"Then, he fielded phone calls and orchestrated the media, letting out little bits of the story. He was choreographing it all, and I have to admit, I was seriously impressed. It was masterful."
Mr. Lockyer said the key is to avoid publicizing a case until he has not only become personally convinced of his client's innocence, but also has tested it by describing the case in detail to a dozen discerning friends and colleagues.
"If anything, you try to downplay the case," he said. "You never overplay your hand, or you will immediately lose the media. You always worry that you will pick up a case where you will be made to look foolish. It's dangerous. Once you've got credibility, it is not something you want to lose."
This, he conceded, has led some colleagues to view him as a publicity seeker, but that impression, even if misleading, is the price that must be paid when fighting for a high-profile cause.
"Publicity is an essential weapon in satisfying sectors of the public and the system itself that a person has been convicted of a crime he didn't commit," Mr. Lockyer said.
"But I hope I am not a self-publicizer. I am fairly self-conscious about fame. I don't necessarily have the self-confidence that I project in public."
INNOCENCE LOST James Lockyer estimates that before he began to focus on cases of wrongful conviction, one-quarter of the clients he represented in trials or appeals really were innocent. At least two of them were found guilty anyway.
In both instances, he said, his own reaction was most unorthodox. Overcome by emotion, he informed the presiding judges that they had just convicted innocent men.
One case was in 1988, when he defended a Jamaican immigrant found guilty of robbing a pizza delivery man and jailed for two years less a day.
"I was crying and asked for a recess," Mr. Lockyer recalled. "Afterward, when I had more control, I told the judge: 'As a member of the bar, I feel it is necessary for me to tell you that this man didn't do the crime, and this is a terrible miscarriage of justice.'
"Then, I went down to the cells to apologize. My client was in a genuine state of confusion. All he could say was: 'Why did he convict me of this when I didn't do it?' "
It was a formative experience made more palatable when Mr. Lockyer won the case on appeal.
The other case involved a man charged with knocking an elderly woman down and snatching her purse. He was convicted only because she identified him.
"I still recall the victim saying there was good lighting for her to see my client," Mr. Lockyer said wryly. "There had been a full moon that night."
The defendant, who had a long criminal record, was given a two-year prison sentence.
JUSTICE DELAYED Wrongful convictions overturned with the help of James Lockyer:
Guy Paul Morin: After his 1992 conviction for the murder of nine-year-old Christine Jessop north of Toronto, Mr. Lockyer spent hundreds of hours preparing Mr. Morin's appeal. After Mr. Morin was exonerated by DNA testing, Mr. Lockyer spent a year acting for the Morin family at a public inquiry.
David Milgaard: After he spent 23 years behind bars for his conviction in the murder of Saskatoon nurse Gail Miller, Mr. Lockyer helped clear his name by arranging DNA testing in Britain.
Peter Frumusa: He spent almost nine years in prison before being exonerated of the murder of a Niagara Falls, Ont., couple, Richard and Annie Wilson. Mr. Lockyer was Mr. Frumusa's trial lawyer as well as his counsel before the Ontario Court of Appeal.
Gregory Parsons: Mr. Lockyer was brought in by lawyer Jerome Kennedy to press the Crown to exonerate Mr. Parsons, a St. John's resident convicted of murdering his mother in 1991.
Gordon Folland: He served almost three years for his conviction for rape of an acquaintance before Mr. Lockyer got the conviction overturned this year.
Those still fighting to be cleared:
Clayton Johnson: A Nova Scotian convicted in 1993 of murdering his wife, he was recently freed on bail and may soon be exonerated.
Roy Kenshin Lee: Imprisoned in 1988 after being convicted of murdering Niagara Falls, Ont., strip-club bouncer Robert Borden, he is seeking a new trial based on DNA testing that casts serious doubt on his guilt.
Stephen Truscott: Convicted as a teenager in 1959 of murdering Lynne Harper, he was released on parole in 1969 and now seeks exoneration using DNA testing and new pathology evidence.
Robert Baltovitch: He is a Scarborough, Ont., resident convicted in 1992 of murdering his girlfriend, Elizabeth Bain, but believed by many to be innocent. Mr. Lockyer would not confirm persistent rumours in the legal community that he has been hired to plead Mr. Baltovitch's case.
COPYRIGHT 199) GLOBE AND MAIL
| |
Fathers Battling Injustice is maintained by Dave4Ashley with WebBBS 5.12.