Brooklyn DA’s Office Takes Up McCallum’s Case

On July 9th, 2014, Dr. Ron Sullivan of Harvard University, Brooklyn DA Ken Thompson’s hand-picked leader of the new Conviction Review Unit, met with Oscar Michelen (Cuomo LLC), Professor Laura Cohen of Rutgers University and, on skype, Professor Steve Drizin of Northwestern University’s Bluhm Legal Clinic. Also in attendance were Mark Hale, designated to look after the day-to-day operations of the Unit, along with Mina Malik. The purpose of the meeting was to give us a chance to present our case for the release of David McCallum, who has now been unjustly incarcerated for almost twenty-nine years. Twenty-nine years! Think about what that means!

We thought that we had reached the moment when we would be given the hearing that Rubin Carter had pleaded for from his death bed. Michelen had prepared a power point presentation, documenting the myriad problems with the confessions, the terrible legal assistance, and the suppression of evidence. The agenda of the meeting, however, was not what we had thought. We thought that we could lay out our case and the unit would go back and consider the merits of our presentation. They had, however, already decided to re-investigate the entire case from scratch.

On the one hand, this is truly wonderful; after all these years, we finally have law enforcement officials looking at the wrongful conviction in a systematic way. Admittedly, from our perspective and our long involvement, some amount of disappointment seeped in. What more could they need since the only thing tying McCallum to the murder was a false confession? In hindsight, we have to acknowledge that David’s incarceration has morphed from just a legal problem into a political one as well. How do you release someone from twenty-nine years of incarceration and not implicate a lot of other people involved in both the trial and the appeals process? And how do you explain to a family, that for all these years has believed that justice was served, that the case is not only problematical but flawed enough to overturn? The family of Nathan Blenner has to deal with the fact that their son’s murderers might never be found or, more to the point, might never be charged. At every turn, we learn more and more about the complexities of wrongful convictions and the amount of people whose lives are changed by a serious crime.

https://rally.org/davidmccallum This site has been set up to provide David with some bridge funding upon his release from prison. He will be entering a world that is foreign and unfamiliar, even threatening. He will need counseling. He will need to find work. He will need a place to live. Your generosity, however much or little, will be deeply appreciated, the funds well used.

Mr. Big Should Be Given the Death Penalty (Globe and Mail)

http://www.theglobeandmail.com/globe-debate/editorials/the-mr-big-investigative-technique-deserves-death/article19452095/

Globe and Mail Editorial attacking Mr. Big (July 4, 2014)

Globe editorial

The Mr. Big investigative technique deserves death

The Globe and Mail

Some of Canada’s police officers have the narrative talents of screenwriters and directors, but their creativity has been horrendously misapplied to induce suspects to make false confessions to serious crimes, using a trick known as “Mr. Big.”

There is at least some hope that Mr. Big himself – or rather, itself – will be stopped. The Supreme Court of Canada recently heard an appeal from the Court of Appeal of Newfoundland and Labrador, in the case of Nelson Hart, and it will hear another such appeal, from Alberta, in the case of Dax Mack. And last week, an Ontario Superior Court judge excluded the evidence on which the Crown was relying in a similar case – a scenario complete with a fake but convincingly bloodstained corpse.

More Related to this Story

  • Globe editorial The Mr. Big policing technique may produce questionable confessions
  • Police may have used controversial ‘Mr. Big’ technique in alleged B.C. bomb investigation: lawyer
  • Law enforcement Police’s Mr. Big technique falls under scrutiny

The people targeted for the Mr. Big gambit are those that police believe to be guilty of a serious crime, such as homicide. Police have suspicions, but they lack evidence.

The Mr. Big technique serves to fill the gap, by inducing a confession. Police invent an imaginary criminal organization, led by a kingpin – Mr. Big. Over weeks and months, the fake gang draws the suspect in, first a friend, then as an errand-runner and eventually perhaps for some petty crime. The suspect-victim is pathetically grateful for his job and becomes devoted to the graciously condescending kingpin.

In due course, the supposed crime boss demands the ultimate proof of loyalty. This may come after Mr. Big and his undercover police henchmen have themselves staged what looks like a murder. To prove his loyalty, the suspect must confess that he too has committed a crime, perhaps even killed a certain person – the crime that the police are actually trying to solve. At first he denies it, but he is threatened with expulsion or worse. He may legitimately fear for his safety or his life. Eventually, he confesses to murder – and is then arrested. Thanks to his “confession,” he is often convicted.

The trapping of vulnerable people is scandalous. These confessions are extracted under fear, duress and entrapment, and have a high likelihood of being false. This may explain why the Mr. Big technique is not allowed in the United States.

It should be similarly banned in Canada. In the words of the Charter, it’s a practice that “brings the administration of justice into disrepute.” The Supreme Court should sentence Mr. Big to death.

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LATEST COURT RULING AGAINST A MR. BIG STING VICTIM

Man acquitted in neighbour’s 1974 killing after judge throws out evidence from ‘Mr. Big’ sting

After 40 years, two murder cases, one failed undercover operation and now an acquittal thanks to Charter violations, Durham Region’s oldest murder case remains unresolved

By:Wendy GillisNews reporter, Published on Mon Jul 28 2014

After nearly 40 years, two murder trials, one elaborate undercover operation and now an acquittal, Durham Regional Police’s oldest murder case remains unsolved.

Dealing the final blow to the first-degree murder case, Justice Bruce Glass acquitted Alan Smith of the 1974 slaying of Beverly Smith in an Oshawa courtroom Monday.

Glass effectively undid the case last month, when he threw out all evidence gathered in an intricate, year-long police sting known as a “Mr. Big” operation.

The undercover investigation — which convinced Smith he was enmeshed in a murderous crime ring, and culminated with the dumping of a fake corpse off a cliff — had violated Smith’s Charter rights and was an abuse of process, Glass ruled in June.

Without the evidence gathered during the sting, namely two widely varying murder confessions, Crown Attorney Frederick Stephens conceded there was little prospect of conviction.

“There is no reasonable alternative but to discontinue the prosecution,” he told court Monday.

 

Rubin “Hurricane” Carter–A Legacy

“If you’re giving up on something, what you’re really giving up on is yourself.”Rubin “Hurricane” Carter (1937-2014)

He wanted no memorial. “I don’t want someone who hated me in this life saying all kind of wonderful things after I’m gone.” He was perceptive, able to see through bullshit better than anyone I’ve known. He was honest. He was unafraid, even of death.

On April 20th of this year, Easter Sunday, my friend and colleague, Rubin “Hurricane” Carter, died of advanced prostate cancer. He was 77 years old and had lived a unique life befitting his nickname. Carter passed through the landscape and left some damage in his wake, but he was also instrumental in rebirth, the reclaiming of lost, hopeless but innocent lives languishing behind prison walls, just as he had languished for nineteen years. I am just coming to terms with his death and beginning to understand his legacy. First, his work with wrongful convictions and his oratorical gifts brought that immense legal problem, with all its permutations and ramifications, to the forefront. His other legacy was personal. In the following quote from EYE OF THE HURRICANE, Carter comes close to expressing it.

In my twenty years of unjust imprisonment, I had resisted everything about that foul abomination of the human spirit, but I also needed to resist those things about myself that had put me into prison. I was just as capable as anyone else of hurting people, jailing, enslaving, cursing, disrespecting, and raising hell. I was endowed by nature with all of the weaknesses, frailties and human failings that every other human being possesses. Knowing this allowed me to understand that compassion and forgiveness begin with the self. Before we can forgive anybody for anything, we first have to forgive ourselves for being the very things we hate.

Herein, Carter is also expressing the insight he had about change. In order for the world around us to change, we, as individuals, first have to change. (“The only thing you can change in this world is yourself.”) This is true on many levels. Take teaching, as an example. A teacher may resist the bad behavior of one of her pupils, either through punishment or, what amounts to the same thing, sending that pupil off to be desciplined by someone else. That teacher will find that the behavior, instead of changing as a result of her resistance, actually gets worse to the point where the pupil will be suspended or expelled. That’s failure. But if the teacher changes first, if she decides not to resist but to find a way for this pupil to succeed, be it the use of humor, imagination or her own integrity, then the pupil must change. It cannot be any other way since part of the child’s behavior was a reaction to the reactions of the teacher. That type of behavior characterized what Carter defined as “reactionary”, whether it be the behavior of individuals or of nation-states. At its root was unconsciousness; one thinks he is in control but, in reality, he is controlled by outside forces unless he becomes conscious. On the other hand, everything in this universe is connected. How we act determines how others act. If our reactions are mechanical, we are part of a greater machine, and that machine is what leads individuals and nations to destruction; he called it savagery, unconscious human insanity. While we are the most creative and enlightened species, we are also the most destructive.

In prison, Carter learned that open defiance and violence could easily be dealt with by the prison but what they couldn’t deal with was his unshakeable sense of self, however much they wanted to destroy it. He couldn’t change the reactionary violence of the prison unless he altered his own response to it. Savagery begets savagery.

“Okay,” he said, “I’ll go wherever you want me to go, wherever you tell me I have to be.” That much he gave them. The rest was strictly passive resistance: the refusal to wear the clothes, eat the food, do the jobs of the prison. That way he stood up for his innocence without fighting back physically. If that earned him endless trips to solitary, so be it. The one warning he gave them was that no guard should put his hands on him in anger. The guards respected that stipulation–he was a fearsome man–and subsequently grew to respect Carter, enormously. No less a figure than Nelson Mandela saw in Carter the same steadfast resistance to subjugation and humiliation that the prison tries to impose, the same resistance that earned Mandela the respect of his jailers and of a whole world. The only way to confront the unconscious human insanity of a prison is with consciousness. A conscious person is like Superman, Clark Kent throwing off his business suit in the telephone booth and emerging in full flight.

*****

A truly free man can never lose his liberty, because liberty is a quality that comes from within. Back in 1966, Rubin “Hurricane” Carter, a feared middleweight boxer, was convicted and imprisoned for a crime he did not commit, a triple murder at a bar in Paterson, New Jersey. This man with a Grade 8 education then wrote a book from prison, The Sixteenth Round, that inspired people such as Muhammad Ali and Bob Dylan to join his cause, helping to overturn his first conviction.

In 1974, Rubin was convicted again of the same crime, but he continued to maintain his innocence by refusing to wear the clothes, eat the food, or do the work of the prison. He was forced to endure ten years in total of solitary confinement in a hole below the ground, but he would never give in to the attempt to make him behave as if he were a criminal. His liberty could not be taken away from him, because he had that quality within himself.

How was Rubin able to endure the cruelty of the system where he was trapped without justice? In his second and final book, Eye of the Hurricane: My Path From Darkness to Freedom, he gives us a hint of the power of the spirit to overcome the limitations of the mind.

To deal with the constant hunger, I had to control my many cravings, which meant controlling both body and mind. I had to overcome all of those things that advertise your hunger: the growling of your stomach or a headache or visions of your favorite foods. Hunger and pain can be controlled by the mind. The physical body knows nothing about pain, heat, cold, time, or hunger, but the mind does. The mind then imposes its conditions upon the body, while our  capacity to endure is far greater than we realize. Of course my career as a professional boxer, having the stamina and endurance to go the distance many times, came in handy in this regard.

Whenever Rubin Carter spoke to high school audiences (and that is where I met him for the first time), he had two related messages: “Dare to dream!” and “Go the distance!” Dreaming is necessary to find out what you want to do, but dreaming is the easy part. Going the distance, like a boxer in a championship fight, is the hard part. Most people cannot go the distance, instead finding many excuses to quit. The most common excuse is that the goal might take too much time to achieve. Trying to free an innocent person from prison can take more than a decade. Only special people can persevere for that long. When Rubin was freed from prison by Judge H. Lee Sarokin, he came to Toronto, Canada, joined with like-minded people, helping to free more than twenty wrongly convicted prisoners, both in Canada and the United States.

The quality of perseverance, of going the distance, was never on better display than during his fight with advanced cancer. In October of 2011, I was present when he was given three months to live. I began writing this piece in March, 2014; Rubin was still clinging to life by a slender thread. Rubin Carter was never knocked out in the boxing ring, and he brought that determination to the end of his life. Despite the extreme pain he faced, he had the heart of a champion; he did not go down easily.

Rubin emerged from a difficult childhood in which his father beat him mercilessly with a belt, drawing blood many, many times. As a result of this brutality and the brutality he faced from the legal system, Rubin carried a volcano of anger inside him. This anger almost destroyed him until one day inside the prison:

I saw a monster. Bulging out of its head were two big, glassy eyes. The skin was stretched so tightly over its face that it was shining. Its lips were thin and drawn back, revealing big yellow teeth, rotted gums, and a perpetual grimace of pure sadistic delight. Hatred and bitterness had taken me over.

He knew then that if he were to escape the mentality of the prison, the mentality that forces the prisoner into violent acts and which would have caused his death, he would have to change. He would have to educate himself; he would have to understand the forces in the world that had shaped him; and he would have to rise above the place where he now found himself. That he was able to do this and emerge from prison a better person, influential, respected and even a loved person, was his great accomplishment.

Nearing the end of his life, he wrote a plea to the office of Ken Thompson, the Brooklyn District Attorney, to ask that the wrongly convicted David McCallum be given a hearing:

Wonderful things have been given to me in my life, my freedom from a place of living hell granted by the brave Judge H. Lee Sarokin, awards I’ve received from every corner of the globe, and dedicated people who worked for no payment beyond the thanks I was able to give. David McCallum was incarcerated two weeks before my release. I was then reborn into the miracle of this wonderful world from which death is now waiting to claim me.  I’m looking him straight in the eye; he’s got me on the ropes, but I won’t back down. Now I ask Ken Thompson to look straight in the eye of truth, a tougher customer than death, and not back down either. Just as my own verdict “was predicated on racism rather than reason and on concealment rather than disclosure”, so too was Mr. McCallum’s. My aim in helping this fine man is to give him the help that I received as a wrongly convicted man.

Even in death, he was able to remember others like him who are suffering  needlessly every single day. He was daring to dream that McCallum would be freed. He was going the distance for as long as he could still breathe

My initial experience with Carter was in Toronto, where he visited my high school English class in 2001. I had taken to using the Norman Jewison film, “Hurricane”, as a teaching tool. Although it might have been characterized as a movie biopic, my teaching experience recognized that it had a greater theme outside of Carter’s life, the power of education, especially individually motivated education. Carter’s rise from the ashes of brutal imprisonment from a wrongful conviction was predicated on his determination and ability to educate himself, while in prison, about the great spiritual masters of the 20th century. He gave up on the law and sought the higher truth that would release him back into the world as a changed man. Analogously, Lesra Martin, a bright but undereducated African American brought to Canada by a commune of sincere and dedicated people, found enlightenment through his reading of  Carter’s The 16th Round and came, miraculously, to meet and get to know his hero.

For my “reluctant reader” students, the message was clear: they could commit themselves to learning by understanding that their ignorance of the world was the first and most important impediment to their own liberation. While not a flawless film, “Hurricane”, highlighted by an inspired performance from Denzel Washington, is a film that resonates with the viewer and stays with him or her for a lifetime. Since Carter lived in Toronto, my students and I wrote to him to see if he would speak to our class. At the time, Carter, as founder and CEO of the Association in Defense of the Wrongly Convicted (AIDWYC) was garnering five figures for motivational speaking engagements. Of course I let him know that the school could not afford the going fee.

What chance above zero did we stand that he would accept the invitation? I think it was three days later that he phoned my home, not even introducing himself, and spoke to my wife in an unintelligible flow of poetic language. She had no idea who the caller was when she handed me the receiver, but when I heard his preacher-like voice, I knew. Finishing his esoteric oration–I was later to find out that the words were from the writings of Og Mandino–and noticing the stunned silence on my end of the phone, he asked, “Ken?” “That’s me, yes. Is this Rubin?” Hence began a relationship that would last for thirteen transformative years. That’s what Carter did to people he got to know: they would either be inspired to wake up to a higher form of knowledge and action or he would sever them from his life. He would not tolerate backsliding and could be terribly cruel and yet…and yet…he was funny, warm, charismatic, generous, and anyone who knew him well would agree.  This contrast made him an enigma. I came to see him as a man who craved acceptance but who, because of his defiant  years in solitary confinement, had also become a law unto himself.

How was our relationship able to survive? I would be deceitful to say that my motives were completely unselfish. While I was interested in what he had to say and wanted to translate his ideas to the world so that people would see him as more than just an ex-boxer and a motivational speaker, I had also hitched my wagon to a star. He saw two things in me: on the one hand, because I am a writer, I gave him the opportunity to be seen as the thinker he had become, transcending his old identity. However, the power in the relationship was his; that is how it had to be with him. He had broken with Lesra Martin with whom he had numerous speaking engagements because he sensed that Martin wanted equal billing. Not me. Like Sancho Panza, I was ready to follow this idealistic Don Quixote to the ends of the Earth. I became a part of his story, at the same time recognizing that he was often tilting at windmills.

The second thing that Carter saw in me was something of which I was not altogether aware. That quality was and is perseverance and the loyalty that accompanies perseverance. When Carter decided to break away from AIDWYC, a quixotic (although ethically correct) decision if ever there was one, he knew he needed someone with this quality to accompany him into uncharted territory. In 2004, during our first visit to David McCallum at Eastern Correctional Facility in Napanoch, NY, I gazed in horror at the massive frontage of the prison, more like a medieval castle than anything I thought a prison would resemble. I had never been to a prison before and have learned since that they are not uniform in construction, some of them former sanatoriums, some army barracks sites, some modernist and cold, all soul destroying places. Feeling insignificant and overwhelmed, I looked at Carter and proceeded to ask: “Who is going to get David out of this place?” Dressed in his signature black suit and wide fedora, he looked straight at me with his infectious grin: “You are, Ken. You are.”

He must have been kidding me, no? But he wasn’t. He meant it. And here I am, still keeping our team of stalwart and brilliant people together, moving on to the next phase, every little triumph followed by a disappointment. Human beings, if nothing else, can be endlessly resourceful. Just when I think I’ve run out of strategies, another one suggests itself.  When will the day come to bring David home? (When might Atif and Sebastian be released?) So many people are involved in David’s case, I can envision a line of traffic, straight out of Field of Dreams, stretching from Otisville (where David is now incarcerated) all the way back to New York City!