The Long Fight for Justice

Ken Klonsky

Not quite Superman fighting a never ending battle for truth and justice

The Law is a series of rules governing the conduct of citizens and of those who enact, enforce and uphold the law. Justice is only possible when the law marries the truth.

All true convictions should proceed from a scientific investigation the results of which can be replicated (and which should be shown to be replicable). A particular person should not necessarily have any involvement whatsoever in the investigation into or trial of their offense. The world itself should provide all details and all evidence. If such evidence is lacking, then a crime cannot be proven without a doubt, and a person ought not to be convicted or punished. Jesse Ball, Silence Once Begun (Pantheon, 2014)

It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t true.  Mark Twain

I am the director of a small innocence project, Innocence International, founded by the late Dr. Rubin ‘Hurricane’ Carter. Our focus has been on wrongful convictions brought about by false confessions. While much has been written about this phenomenon and how difficult it is for people to believe that someone would falsely confess to having committed a crime, the larger problem is that the convictions are so difficult to overturn. Despite being presented overwhelming evidence of innocence, many police and prosecutors will use the law to block the truth, because the consequences of having manufactured a wrongful conviction can be devastating to the careers of law enforcement officials. Some would prefer that innocent people remain in prison than for them to be publicly exposed and made responsible for a multi-million dollar monetary settlement from the state. The blog on this site will focus primarily on two cases; the first is David McCallum of Brooklyn, New York, who, at the age of sixteen, along with his late friend, Willie Stuckey, were substituted by the police for the likely killers of a twenty year old man from Queens. Another pair of teenagers, Sebastian Burns and Atif Rafay of West Vancouver, British Columbia, were, with the help of of a sting operation by the RCMP, convicted in Washington State of the murders of the Rafay family. These two are prototype cases that exemplify the problem of false confessions as a whole. The blog will also recommend books and articles about wrongful convictions as well as work from the author of the site.

On October 14th, 2014, David McCallum was freed from prison after 29 years by Kings County Supreme Court Judge Matthew D’emic after District Attorney Ken Thompson‘s Conviction Review Unit recommended his release. No evidence ever existed to implicate McCallum or his late friend, Willie Stuckey, beyond a pair of demonstrably false confessions. Innocence International stayed on this case for ten years. We were generously assisted by New York’s  Oscar Michelen (Cuomo LLC), Laura Cohen of the Rutgers Legal Clinic, Steve Drizin of Northwestern University’s Bluhm Legal Clinic, Brooklyn Private Investigator Van Padgett and so many other people who were captivated by David McCallum’s extraordinary qualities: his wisdom and compassion and his refusal to quit in the face of a corrupt and inflexible district attorney (Charles Hynes).

Among the other people: Ray Klonsky of New York and Toronto and Marc Lamy of Montreal, young filmmakers who created David & Me (known on Netflix as “Fight for Justice: David & Me), a movie that details Ray’s relationship with David and how they helped each other; Joan and Marty Ustin of Charleston, South Carolina, who helped David with his education, provided emotional support and chaired meetings at Innocence International; Mary Ellen Belfiore of Vancouver, BC, who provided emotional and educational support; Gary Dolin of Bellingham, Washington, a psychiatric social worker who helped prepare David for his life outside of prison and whose generous friendship provided David with an anchor; Andrei Schiller-Chan of Melbourne, Australia, whose generosity with money and whose courage and spirit helped David immeasurably. This wonderful international team is as much a part of the story as any legal assistance. Every one of these people and organizations were inspired by the late Rubin “Hurricane” Carter; every one of these people gave something unique and necessary that allowed David to be freed and to succeed outside of prison after 29 years! This is one of those rare legal stories with a truly happy ending. David is now living a productive and exciting life. His blog can be seen on this site or on david-mccallum-on-the-outside, where you can respond to him.

Wrongful convictions themselves can be the result of malice by prosecutors and police, but are generally the product of human error; all human systems are as prone to error as those persons who created those systems. The decisions of a jury of twelve women and men, while composed of twelve separate sets of perceptions, are often the product of ‘group think’. Getting to a verdict (a word at the root of which is ‘truth’) is necessary to avoid a hung jury and the large cost to the state that would be entailed by another trial. Right away, that circumstance produces a group pressure to conform. It is extremely difficult for one or two to hold out against ten or eleven. But just as sometimes the one or two will have it right, the twelve will have it wrong; the twelve will have been convinced by a sharp attorney or turned off by a lax defense attorney and come in with the wrong verdict. This situation is inevitable; it must happen every so often. However, overturning a wrongful conviction is extremely difficult, especially for the reasons of loss of stature mentioned above, and generally ends in failure. Unless the defendant, who is now guilty until proven innocent beyond the shadow of a doubt, can either supply another murderer or rapist who confesses or be eliminated by DNA evidence, the task is next to impossible, like threading a camel through the eye of a needle. Without DNA, the only other hopes for the wrongly convicted are 1) a wise judge, a man like H. Lee Sarokin, who freed Rubin Carter because Carter’s trial verdicts were the result of a racial bias in the New Jersey justice system and 2) people of good will in a District Attorney’s office, people committed more to the truth than the burnishing of their reputations. A great example of this is the new DA in Brooklyn, Kenneth Thompson, who ran for office and won on a platform that included the righting of wrongful convictions. Thompson created a new Conviction Review Unit, headed by Professor Ron Sullivan of Harvard University. They have, thus far, overturned 13 wrongful convictions and have one hundred more to investigate. The majority of these cases are without merit but the minority is significant. Sullivan spoke to a conference of defense attorneys, outlining the basis for overturning these “unsafe” cases. One of the stipulations was that the Unit had to feel comfortable with the conviction, that there needed to be solid evidence to back up the verdict of the jury. Since McCallums’s case, according to lead investigator Mark Hale, had no evidence tying McCallum to the murder of Nathan Blenner, no evidence beyond a demonstrably false confession, McCallum was released after 29 years of unjust suffering. The moment when Judge Matthew D’Emic vacated the conviction was, next to the birth of my son, the most powerful moment of my life. Sad indeed that it would not have been possible without Thompson’s election.


22 thoughts on “The Long Fight for Justice

  1. thanks..really important to get the verdict right..the first time around but you mention things i never thought of that makes the whole process full of chances for error on the part of the jury The use of the prisons to make money and the ways they do it i was never aware of..A real help
    and i will see all of this differently now thanks!

  2. Mr. Klonsky,
    I too wrote the Globe and Mail about Steven and also pointed out that he wasn’t even in Kingston Pen but, as Marlene Truscott reminded me, was at Collins Bay Pen.

    • Many thanks, Chris. Of course the careless treatment of a fine man like Steven Truscott is not atypical of the treatment of wrongly convicted people in general.

  3. Burns and Rafay need to have a second trial. In so many cases the prosecution find people guilty and that’s it. I am looking fir the evidence here? On 48 Hours, which is as accurate as possible, where were the boys DNA, since Burns was convicted if the murders, his DNA should have been all over the victims. Didn’t hear any of this from the prosecution? Didn’t hear anything about the showers taken afterwards, was DNA found in the shower? Where were the wet clothes, where was the metal baseball bat? Plus, Sebastian Burns parents seem to be upper middle class, what kind of attorneys did they hire?
    Where was the proof beyond reasonable doubt here?
    The judge reprimanded Burns, yes they were boys when this happened, 18 yrs old, he didn’t like his demeanor, so what!
    Listen, there needs to be a second trial, in another venue, and both men should take the stand. Not to mention Mr. Big, wow, if anything is illegal that task for is, illegally getting confessions out of people. At the time these two people were 18 yrs old, they truly thought they were the mob.
    Personal view – Prosecutors drew them in because they had no evidence!
    Too many questions, the jury was so wrong. Burns said so when he spoke!
    PS: Rafay is in a reformatory teaching and growing but Burns is in Washington Pen., he will die before his 40th birthday, if someone out there doesn’t transfer him to the reformatory before the new trial.
    Thank you for listening.

    • Thank you for your long note, Cindy. Much to react to here.
      48 Hours? Were they seeking the truth or was this sensationalism? Maybe a bit of both? The DNA issue is important because DNA was found in the house that did not fit the profiles of the family or the two boys. One of the reasons we took up the case was the trial judge’s apparent prejudice against them and the prejudicial trial itself. Anything that might have been seen to favor their defense was disallowed or declared irrelevant. A pubic hair in Mr. Rafay’s bed, because it did not test positive to anyone in the house, was declared to be a “stray”, something brought in on someone’s clothing or shopping bags or whatever, as if people are shedding pubic hairs all over the state of Washington.
      The attorneys had good reputations but were not at the top of their games. Rafay should have been advised to testify; his silence did not play well. One of the attorneys took a cell phone call during his summation! The judge, declaring a brief recess, allowed him to answer it.
      Mr. Big was certainly used because they had insufficient evidence. That’s what Mr. Big is for, to circumvent the normal legal process, a very bad idea. Trickery has no place in the pursuit of justice.
      Burns is at the same prison as Rafay. The difference is that Sebastian is buried in a unit for incorrigible prisoners. He has steadfastly refused to “mix” with other prisoners. He has behaved like a wrongly convicted man from day one, but his anger can be dealt with by prison authorities. If I were in his place, I would be similarly angry. Atif is able to pursue an albeit limited academic career because he’s the kind of person who finds opportunity in any situation he may find himself. His accomplishments are remarkable, I’d say almost heroic, but that is due in large part to a calm disposition. He is suffering terribly inside but he’s able to go on despite it. No one, I mean no one who has not been in prison, can understand the depths of suffering that both men have endured.

  4. 48 Hours is on CBS east coast, well respected, very accurate info.
    it was described in the newspaper rafay is in the reformatory, because he is small and burns is in the pen with very bad people.
    bottom line, where is the evidence?
    hoe can they get a second trial. see as you know with the me,phis 3, johnny depp stepped in and people noticed. when they were released, the real murderer was found out.
    this is the first i ever heard of this case. i am an advocate of innocent people.
    these two boys had everything against them, prosecutor judge, and their lawyers the first group and the second group were no better.
    why did they bring up burns had sex with the lawyer, he was a kid, he was nervous, etc. are burns parents taking an active role here, the sister produced a documentary, wish i could see it, but when asked how her brother was treated. why, she didn’t comment.
    again, will they get another trial?

  5. do Burns and Rafay communicate by writing or?
    since it od do obvious burns is suffering unbelievably, can’t they put him where rafay is? maybe he can have s different life there. he is just as intellectual as rafay. he treatment is inhuman. does he have an attorney or an advocate (s) actively trying to put him where rafay is fir his survival. or don’t prisons care about the welfare of the inmates?
    Thank you.

    • Cindy, what Burns possesses (evident in the 48 Hours program and his 90-minute diatribe at sentencing) is charm and the gift of the gab and expanded vocabulary, most likely courtesy of his British father. As far as his “high” academic intellect is concerned, I’d find that debatable.

      We also shouldn’t deny that Burns (along with Rafay and his other friends) were proved to be cunning and hurtful, beginning with the yearbook incident and car insurance incident in high school, then with abusive behaviour towards his next door neighbours in Vancouver, then the sex incident and more importantly his foray into crime.
      You can find information on all of these on the internet and I’d venture there were others as well.

      Personally, I don’t trust either Rafay or Burns.

  6. I was coerced into pleading guilty to a crime I did not commit. The charge was murder in the second degree.
    At the age of 17 I along with two other youngmen were charged with the crime of murder in the 1st degree and coerced into pleading guilty after two days of trial to the charge of murder in the 2nd degree.
    At the time of sentecing I asked to withdraw my guilty plea because I was innocent and coerced into pleading guilty and I was afraid to die for a crime I did not commit. I was denied by the sentencing judge. There were no witnesses, and no forensic evidence only coerced statements

    • Carlos,
      I can believe what you say, although I’m not familiar with the particulars of your case. The death penalty, wherever you live, is used as a lever to avoid trials, get plea bargains and false confessions. Your experience sounds terrible; I can only say that the 14 years is minimal compared to what I’ve seen. You were young and easily swayed like our other young clients. This kind of thing destroys a life. Did you have a lawyer the whole way through? Did you speak to the police without a lawyer? We find that the problem usually begins there, especially with inexperienced young people. I hope you have gotten or will get your life back in order to the extent that you can live productively. If what you say is true, I am sorry for what has happened to you.

  7. What are your thoughts about the case of Julius and Ethel Rosenberg. Is it remotely within the realm of possibility that the case will ever be reopened?

    • Hi Andrew,
      I don’t know about belated justice for the Rosenbergs; that might be the job of history and historians. I was frightened as a child by their execution, caught as I was between being an American and a Jew. Observing the treatment of Edward Snowden, Leonard Peltier, and Mumia Abu Jamal, one may well conclude that America does not easily forgive and, in the case of wrongful convictions, that time has little effect on those who run the judicial system(s). The only chance for that type of justice is a commitment by leaders to address it. In this regard, Obama is a huge disappointment.
      The Rosenbergs were motivated by justice and the fear that one country should not have the means of destroying mankind. Their execution was an atrocity but then aren’t all executions atrocious? However, the Rosenbergs did what they did to quiet their own consciences; that is admirable but they would (or should) have known they would pay a price. All martyrs know that they will pay a price for standing up to power. The case is clear in that respect, and I suppose that’s also true of Snowden, Manning and Assange.
      Thanks for the chance to address a complex historical issue. My question to you is: what does history say now that it didn’t say in the 1950’s about the Rosenbergs?

  8. Hi Ken –
    – I too was terrified by the execution of the Rosenbergs. I was a child of American Communists and the same age as one of the Rosenberg boys; my parents were very active in the attempt to stay their executions. They truly believed that Julius and Ethel had been framed by Ethel’s brother and his wife. I remember clearly the sorrow expressed on my parents’ faces when the execution was carried out. And of course as a six year old child I wondered if my parents were in danger of being executed as well.
    – I believe the analysis of the current state of the case as written by Robert Meeropol on his blog. Briefly, he says that the evidence that has come to light since their execution (mainly the Venona tapes) reveals that Ethel was indeed wrongly convicted (with intent) and that Julius was guilty of at most giving non atomic weapons information to the Soviets during WW2 when the USA and the Soviet Union were allies. David Greenglass was the person who gave whatever atomic information there was to the Soviets. The Greenglasses and the prosecution used many falsehoods to build the case against Julius and Ethel.
    – I think that there is enough new information about the case to reexamine it but like you I think that in this case it is and will remain justice denied.

    • I read the Meeropol article you provided and don’t have enough knowledge to quarrel with it. It’s funny, isn’t it, that one would want to exonerate them for doing what one approves of. I mean if their crime was to promote world peace! Why take that away from them? Of course the execution was wrong whether they were innocent or guilty.

  9. Dear Ken,

    This might be a little out of context to this blog,

    But i am so glad to finally find you after all these years, I wanted to express my gratitude for what you did for me at Vaughan Road Academy. I would have given up my dream of film without you, I was a very troubled teenager and you never gave up on me when others did. And for that I thank you very much! I am happy to see you also continue to have a positive impact on others in your life journey.

    Keep in touch!

    Eduardo Guerrero
    Former Student

  10. I feel so sorry for s. Burns. He is as i understand it in need of interventuon. The judge was so clearly against them esp. Sebastian and these where teenagers. Id hate to think my 18 year old son in that situation. So terribly sad.

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