About ken

I am a former Toronto teacher and writer now living in Vancouver. I work with Dr. Rubin 'Hurricane' Carter, with whom I published Eye of the Hurricane: My path from Darkness to Freedom (Chicago review Press, 2011), as Director of Media Relations and as an advocate for wrongly convicted prisoners. Other publication credits include Songs of Aging Children (Arsenal Pulp Press, 1992) a book of short stories about troubled youth, and Taking Steam, a play co-authored with the late Brian Shein, staged at New York's Jewish Repertory Theatre and Toronto in 1983. Life Without (Quattro Books, 2012) is a novella about a New York cab driver wrongly convicted of killing his pregnant wife. Gary Geddes (Lt. Governor's Award for Literary Excellence) described it as "one of the most brilliant and harrowing short novels I've read since I went on a John Hawkes binge."

Miyoshi: An RCMP Interrogation at the Vancouver Fringe Festival

Innocence International presents Miyoshi: An RCMP Interrogation at the 2018 Vancouver Fringe Festival. The play is a re-enactment of the actual 1995 interrogation of Jimmy Miyoshi, friend of Atif Rafay and Sebastian Burns who were both wrongly convicted in 2005 of the murders of the Rafay family. It reveals the ineptitude and the tunnel vision of the interrogators that lies at the center of this tragic injustice.

The play runs at the Havana Theatre, 1212 Commercial Drive, from September 6-15. Schedule available on Vancouver Fringe website.

PRESS RELEASE

 Miyoshi: An RCMP Interrogation

“You don’t need to accept everything as true, you only have to accept it as necessary.” (The Trial, Franz Kafka)

“Miyoshi: An RCMP Interrogation” is based on never-before-revealed transcripts from the RCMP interrogation of Jimmy Miyoshi, a key witness in the 1995 Burns-Rafay murder trial.

In May of 1995, Sebastian Burns and Atif Rafay were charged with the brutal murder of Rafay’s family in Bellevue Washington, based largely upon evidence from the RCMP sting operation called “Mr. Big” (a law enforcement technique prohibited in the U.S.). Posing as underworld crime figures, the RCMP exacted confessions from Burns and Rafay, both 18 at the time of the murder.

Almost 10 years later, Burns and Rafay were sentenced to life in prison without the possibility of parole. The testimony of key witness and close friend of the boys, Jimmy Miyoshi, was instrumental in their conviction, but … did Jimmy give false evidence? Was he unduly pressured to give to false testimony on the stand? Are Burns and Rafay innocent? – Three Innocence Projects now believe so, and “Miyoshi, An RCMP Interrogation” reveals new evidence which suggests they were wrongfully convicted. We invite you to come see the play and decide for yourself!

Miyoshi: An RCMP Interrogation, will premiere at the Vancouver Fringe Festival this September (the 6th to the 15th at the Havana Theatre).

Produced by:  Ken Klonsky and Innocence International

Directed by: Blake Melnick, CKO of the Knowledge Management Institute of Canada

Characters & Cast

Jimmy Miyoshi: Kai Bradbury

Staff Sargent Rinn: Cheryl Mullen

Constable Comrie: Rodney Decroo

Media and Communications

Poster Design: Erin Mugford

Social Media: Rowan Melnick

Communications and Press: Parker Melnick

 

BOX OFFICE GENERAL INFORMATION

The Fringe Box Office opens on September 4 at 4pm
1398 Cartwright Street on Granville Island (next to Waterfront Theatre)
Hours: 4pm-9pm weekdays and 12pm-9pm weekends

We accept cash, Visa, and MasterCard at the Fringe Box Office. This year at the venues we are only able to accept cash. Sorry, no Visa Debit!

Purchasing your tickets
Tickets are available at the door or in advance. You can buy memberships at the box office or at any venue.
Advance tickets are available online starting August 8 or at the Fringe Box Office only! If you are having trouble purchasing tickets, you can contact the Box Office Manager by email at boxoffice@vancouverfringe.com or at 604.762.5294. Please note there are no phone sales.

Important info:
With almost 700 performances happening over 11 days, we need to start every performance on time! We recommend arriving at least 20 minutes early to avoid disappointment. Some tickets will be sold at a FOH location 2 minutes from the venue. Patrons arriving after the performance has begun are not admitted under any circumstance. No Latecomers. No Refunds. No Exchanges. No Exceptions.

 

 

Liberty Award speech at BCCLA gala

Thank you, BCCLA, for this recognition. The last award I won was in the summer of 1957 for Most Improved Camper, so getting this Liberty Award, for Excellence in the Arts, from Canada’s foremost legal advocacy organization, is an honour indeed.

I stand here on the massive shoulders of a short man: Dr. Rubin “Hurricane” Carter, with whom I made friends when he agreed to visit my high school English class in Toronto. Who could guess that my next 16 years of literary work and otherwise would revolve almost exclusively around wrongful convictions?

Dr. Carter taught me most of what I know about the law and all of what I didn’t want to know, especially the intractable appeals system. He taught me that a miracle was needed to overturn a jury’s verdict. He would tell a client: “The law put you in prison; the law is keeping you in prison; the law all by itself will not get you out of prison.” For him, a miracle was “Higher laws acting on a lower level.”

You see, the law can only pretend to truth. A verdict means spoken truth, a witness is sworn to tell the truth, the whole truth and nothing but the truth, but nothing could be further from the truth, else there would be no wrongful convictions. I learned that without empathy, without compassion, the law is nothing but a cold, blunt instrument. Necessary to run a society but as flawed as the people who administer it. Not so with the truth, not so with goodness, not so with compassion. Those like the BCCLA, who stand up for justice in the face of state intransigence and cruelty, represent the positive side of advocacy work. How lucky I am to have met so many good people!

What place do the arts have in the law? Writers and filmmakers make us feel outrage at injustice and compassion for those who suffer through the most nightmarish of circumstances. Those like Mahar Arar, Omar Khadr, Hassan Diab, Leonard Peltier, David McCallum, Sebastian Burns and Atif Rafay. Artists motivate people to stand up and correct the inevitable wrongs of the system.

At the end of a road that on average requires a decade to travel, we discover that goodness is still there; the light shines in the darkness and the darkness did not overcome it. “That’s the miracle, my brother!” As Rubin said over and over again. “To see just one of those people walk out the prison doors with a smile on their face. That’s the higher law acting on the lower level.”

 

 

Award from the BCCLA

The following letter was sent to me by the British Columbia Civil Liberties Association, the leading legal advocacy group in Canada. I am extremely proud to get this award, but I stand on the wide shoulders of Rubin “Hurricane” Carter, who taught me everything I needed to know about justice.

Also thanks to Oscar Michelen, Steve Drizin, and Laura Cohen who hung in with me for years to free David McCallum.

March 28, 2018

Re: BC Civil Liberties Association Liberty Award

Dear Ken,

On behalf of the BC Civil Liberties Association (BCCLA), I am pleased to let you know that you have been selected as our 2018 winner of the Excellence in the Arts Award.

The Liberty Awards honour exceptional contributions to the fields of human rights and civil liberties in Canada. Through a nomination process open to our entire membership, your name was put forward, and selected by our Board of Directors.

Your artistic works call readers to action to defend civil liberties and improve our justice system for all. Your art and advocacy on the behalf of those who have been wrongfully convicted have contributed greatly to the advancement of human rights in Canada and internationally.

In recognition of your accomplishments, I am delighted to invite you as a guests of honour to the Liberty Award Gala on Thursday, May 17th at the Villa Amato in Vancouver, BC. Full information about the gala is available here.

The BCCLA Liberty Awards happen once every two years and bring together some of Canada’s preeminent social justice champions to celebrate excellence in legal advocacy, journalism, the arts and youth and community activism. It is an evening of inspiration and celebration. In addition to a three course meal, entertainment and the awards ceremony, the evening will feature an incredible musical performance.

We would be so pleased if you and your guest could join us for this evening of celebration.

Please feel free to contact me at 604.630.9752 or at josh@bccla.org if you have any questions. RSVP by contacting Director of Community Engagement, Mark Hosak at Mark@bccla.org or 604.630.9745. Congratulations on being selected, and we hope you can join us!

Sincerely,

Josh Paterson Executive Director

Tina Fontaine/Raymond Cormier, Sebastian Burns/Atif Rafay

The murder of Tina Fontaine and the subsequent acquittal of Raymond Cormier points to many things that need fixing in Canada. Some of those things, like the uncaring treatment and neglect of youthful indigenous people, have been going on without remedy for more than one hundred years.

I want to focus on one aspect of the case because it has bearing on the wrongful convictions of Atif Rafay and Sebastian Burns. Mr. Cormier certainly had contact with this child and was a logical suspect. The problem with the case, as I see it, was the absence of forensic evidence tying Cormier to the crime. The jury saw it likewise. The RCMP failed to come up with anything other than anecdotal evidence. So, what did they do? They launched a Mr. Big sting. Sound familiar? Nothing he said in that sting was an admission of guilt, but, even if he had confessed to them, the trial would have been polluted by Mr. Big. I thought that the Supreme Court of Canada had ruled out Mr. Big stings in the absence of forensic or other convincing evidence but I guess not.

Cormier was found not guilty. The case was not ready to go to trial. If Rafay and Burns were to be tried now in a Canadian court (it’s illegal to use such stings in the USA), they would also be acquitted. People are more likely now to view Mr. Big outcomes with a raised eyebrow or plain cynicism. No forensic evidence ever implicated Rafay and Burns in the bloody murders of the Rafay family. The confessions should have been worthless, given their airtight alibis. But the State of Washington holds on to these convictions; they think they have the right guys. They may think so but the Tina Fontaine case shows that convictions should not be the result of coercion and intimidation of witnesses.

Maybe Raymond Cormier did murder Tina Fontaine. Her death is an unmitigated tragedy, whoever was responsible. But a wrongful conviction (and finding Cormier guilty despite the lack of evidence would have been a wrongful conviction) only adds to the tragedy by destroying another innocent life. Cormier may have done reprehensible things but justice is not served unless evidence other than self-incrimination is unearthed.

Nuttall, Korody and the RCMP

There are times I begin to wonder if the RCMP is more about publicity than justice. The arrests of John Nuttall and Amanda Korody after a Mr. Big sting operation were clearly the result of entrapment. BC Supreme Court Justice Catherine Bruce’s ruling to stay the terrorism charges  against the gullible couple was eminently fair and clear sighted. That the Crown is now pursuing an appeal of that ruling is an abuse of taxpayer funds and the judicial process.

Once again, we are faced with the profound limitations of this sting operation and the unusual myopia of the Canadian judicial system that has allowed it, albeit with some restrictions. First of all, in my view, the entire operation in this case was used to burnish the RCMP’s reputation in counter-terrorism. They chose a pair of drug-addicted dupes to set off a dud bomb in a public space during a holiday celebration and set them up with the equipment to do it. Could Nuttall and Korody have done this on their own? Would they have done this on their own? Justice Bruce’s decision strongly implied that the answer to both questions is “NO”.  The sting feeds on ignorance. The police officers masquerade as either gangsters or international criminals, causing the targets to fear retribution if they fail to confess to a crime or follow through on nefarious plans. It’s a simple as that.

Now, the RCMP will make great claims about the success of the sting, but wrongly convicted people are, unless released, considered to be a part of this great success. That the Crown is appealing the judgment has nothing to do with protecting the public from terrorism and everything to do with protecting the  RCMP from ongoing criticism.

Where is the RCMP when it comes to solving the murders of aboriginal women; when it comes to arresting radical religious elements and drug dealers responsible for “targeted” shootings cross the lower mainland? The public is far more endangered by this spree of murders than by crypto-terrorists ensnared by Mr. Big. Just this weekend (January 13), two innocent people were wounded, one critically (a fifteen year old boy) in a targeted shooting on Broadway and Ontario St. in Vancouver.

Sebastian Burns and Atif Rafay continue to sit in a Washington State prison, the result of this very flawed sting operation.  Consideration given to real suspects was superficial at best. The RCMP seems too comfortable when its officers are not wearing the garb of police. I sincerely hope that the appeals court rules to uphold Justice Bruce’s wise decision.

New Year

A recent spate of discoveries in the Burns/Rafay case has come about through a platoon of volunteers coming forward because they’ve seen “The Confession Tapes”. These people are legal professionals and researchers motivated to do pro bono work to right what has now become an apparent injustice. People at Innocence International are extremely grateful for this work. Not one piece of so-called evidence from the trial has held up to scrutiny nor, as is always the case in a wrongful conviction, has any information arisen to confirm the convictions. This development bodes well for the progress of the case in 2018.

Why is it that so many murder victims in Canada, especially BC, are “known to police” but we, the citizens, never learn the names of the victims and the perpetrators? Who is being killed by whom? Why are there over a thousand missing and murdered BC women, whose cases are still unsolved? Why are so many sexual assault cases labeled “unfounded”? Why does the RCMP seem so inept at solving serious crime? These are questions that we must be prepared to confront rather sit back and believe that all Canadians are being well served by our national police force. As I’ve said previously, individual RCMP officers are as good or bad as any other profession in society. But the force is dominated by a culture that needs scrutiny. Their responsibility for the wrongful convictions in Burns/Rafay has to be examined in the light of that culture.

 

TVO interview by Steve Paikin with David McCallum and Ken Klonsky: Freeing David McCallum plus link to book

This interview was done October 23rd in Toronto in conjunction with the launch of “Freeing David McCallum: The Last Miracle of Rubin “Hurricane” Carter

https://tvo.org/video/programs/the-agenda-with-steve-paikin/life-after-wrongful-conviction

Link to Buying the Book

https://www.amazon.ca/s/ref=nb_sb_noss?url=search-alias%3Dstripbooks&field-keywords=Freeing+David+McCallum

Pre-trial examination of Police Detective Bob Thompson by Jeff Robinson, lawyer for Sebastian Burns and Atif Rafay

The judge refused to allow this testimony or this information into the courtroom. Why? For those who think the extreme fundamentalist angle is “thin”, please read this:

JEFF ROBINSON ( Lawyer representing defendants): I want to move to a different topic now.  Do you recall several days after the homicides being approached by and interviewing a man named Douglas Mohammed?

DETECTIVE THOMPSON: Yes.

Q:        I can show you a report to help with the dates.  I’m going to show you this, which is a copy from Detective Gomes’ police reports.  July 18 is the date at the top of that page.  Is that right?

A:        Yes, it is.

Q:        And then if you turn to the next page, is there an indication that along about 2:45 in the afternoon you and

Q:        Detective Gomes interviewed Douglas Mohammed?

A:        Yes.

Q:        And Mr. Mohammed gave you an address and phone number to contact him, didn’t he?

A:        Yes.

Q:        And he told you that he was Egyptian?

A:        Yes.

Q:        And he told you that he was affiliated with some FBI agents?

A:        Yes.

Q:        He then described a concern he had about, that might relate to the Rafay homicides.  Is that right?

A:        Yes.

Q:        And he told you that there were different factions in the Muslim community?

A:        Yes.

Q:        Both in Seattle and in Vancouver, British Columbia?

A:        Yes.

Q:        And he told you that one of these factions was headed by a particular man, whose name and address he gave you.  Is that right?

A:        Yes.

Q:        And he told you that this man preached that those that did not accept his translation of the Koran should be killed?

A:        Yes.

Q:        And he told you that this man’s interpretation of the Koran was an extremely violent one?

A:        Yes.

Q:        He told you that this man owned a gas station and he gave you the location of that gas station?

A:        Yes.

Q:        And he told you about several other people that were in this man’s group let’s call it?

A:        Yes, he did.

Q:        And he told you that on the Friday after the homicides, one of these men that was in this group came to his house and appeared to be very nervous and frightened?

A:        Yes.

Q:        And he indicated that this man who was nervous and frightened was asking whether he, Mr. Mohammed, remembered a baseball bat that had been carried around by group members in a car.  Do you recall that?

A:        Can you give me a second just to read through this on the baseball bat issue?

Q:        Yes, absolutely.

A:        Yes, I do recall that.

Q:        And he was saying that he thought the baseball bat could have been the murder weapon?

A:        Yes.

Q:        On August 2,——

COURT:         Go over that again.  He told of this baseball bat being where?  I lost that.

A:        He had come to the police department and said there’s some people he knew that carried a, basically carried a baseball bat in their car.

(BY MR. ROBINSON)

Q:        And that the man who came to his house that was a member of the group we’ve described was nervous and frightened and was asking him, Mr. Mohammed, like hey, do you remember that baseball bat we were carrying around?

A:        Yes.

Q:        So a person in the group that Mr. Mohammed suspected might be involved in the homicides was asking Mr. Mohammed about a baseball bat?

A:        That’s correct.

Q:        And on August 2nd of 1994, on or about that date, do you recall applying for the return of search warrant to be sealed by a district court judge?

A:        I do recall having a search warrant sealed.

Q:        And it was after July 18, wasn’t it?

A:        I don’t remember.  Well, yes, counselor, it would be after July 18.

Q:        And one of the things you said in the request to seal that search warrant is that there was evidence that was outlined in the warrant return that only the investigating detectives or the killers would know?

A:        Yes.

Q:        And one of the things you placed into that category only the investigating detectives or the killers would know was the fact that the murder weapon might have been a baseball bat?

A:        Yes.

Q:        And Douglas Mohammed was talking about a baseball bat before that information had ever been released to anybody in the public.  Am I right?

A:        Yes.

Q:        And Mr. Mohammed went further and told you that this group leader had actually made a specific threatening statement about Mr. Tariq Rafay, didn’t he?

A:        Yes.

Q:        He said that this man had indicated that Tariq Rafay should be killed because of Mr. Tariq Rafay’s interpretation of the Koran?

A:        Yes.

Q:        Detective Gomes obviously prepared this report some time after July 18?

A:        Yes.

Q:        It was in your file when the RCMP came down in March and February of ’95?

A:        Yes.

Q:        And by the way, you did confirm that Douglas Mohammed was actually an informant for the FBI, didn’t you?

A:        Yes.

 

Rebuttal to Washington Prosecuting Attorney based on his press release attacking Netflix’s The Confession Tapes

The Prosecuting Attorney of King County, Washington, Dan Satterberg, issued a press release (above) on Sept. 26th criticizing Netflix “The Confession Tapes” (“True East” episodes) for, among other things, selectivity. First, Satterberg’s press release:

http://www.kingcounty.gov/depts/prosecutor/news-media-center/news/2017/september/confession-tapes-statement.aspx

Here is our response:

Statement by Innocence International on the King County Prosecuting Attorney’s office attempt to impugn the validity of the Netflix series “The Confession Tapes (The “True East” episodes).

On September 26th, in response to both concern and outrage from the public after viewing the Netflix series “The Confession Tapes”, the King County Prosecuting Attorney’s office issued a press release.  The episode referred to deals with the 2005 convictions of both Atif Rafay and Sebastian Burns for the murder of Rafay’s family.

The press release claims that the documentary is unfair and inaccurate without pointing to any specific instances of inaccuracy or unfairness. The release represents yet another attempt to justify the wrongful convictions in the absence of forensic evidence. At the end of the document the prosecutor states: “The Confession Tapes” recounts some but not all of the forensic evidence linking Burns and Rafay to the murders. The episode recounts no forensic evidence against Burns and Rafay because there was none. Had there been forensic evidence implicating them in this crime, no innocence project would have taken up this case.

The press release states that “The Confession Tapes” strongly suggests confessions to these crimes made by both Burns and Rafay are false. This statement is in the eye of the beholder since the program has no outside narrative. Police Detective Bob Thompson and James Konat, the prosecutor, are given more time on screen than anyone else. The fact that the program “strongly suggests” the innocence of the defendants is predicated on the weakness of the case against them.

The jury, which heard all of the evidence during a six-month trial, rejected this defense and convicted Burns and Rafay. That they were convicted is true. That the jury heard all the evidence is demonstrably false. The judge did not allow the jury to hear any alternative theories to the crime, despite the fact that a validated FBI informant identified the murder weapon prior to its being published and stated unequivocally that the crime was committed by someone else; despite the fact that an RCMP informant tipped the Bellevue police beforehand that a hit was planned on a South Asian family recently moved to Bellevue; despite the fact that a detective in the Bellevue Police Department received a call from the intelligence unit of the Seattle Police Department indicating that the homicides were possibly associated with an Islamist terrorist group that targets Muslims “who do not practice the faith or interpret the Koran as they do. They punish these unfaithful persons by bombing, stabbing and murdering.”

The trial judge also refused to allow Richard Leo, an expert on false confessions, to testify. The reason given, that a jury is qualified to decide who is lying and who is telling the truth, is specious. In fact, any cursory glance at scientific knowledge in this area will show that the average person is not qualified to do anything of the sort. An FBI authority on sting operations, Michael Levine, was also denied witness status at the trial on the ground that he was not an expert.

The Prosecuting Attorney’s Office accuses Netflix of selectivity: most of the confessions are neither played nor described. The RCMP and the prosecutors are the ones guilty of selectivity. Most of the initial conversations between Burns and the undercover officers were not recorded. Sections of the tapes that do not support the convictions and that jurors never saw have been destroyed or disposed of.

The prosecutor’s press release makes the claim that Burns, far from being intimidated by the officers [the RCMP play acting as mobsters], sought them out. Why did Burns continue to seek out the mobsters and engage in petty criminal acts at their behest? The scurrilous implication in the current press release by the Prosecuting Attorney’s office—the same as at the trial—is that Sebastian Burns had a criminal mind and actually reveled in the doings of the crime world. In fact, Burns was psychologically conditioned by the RCMP. Every time he committed an illegal act, he was given money. That is why he sought them out. One of the purposes of the trial was to prejudice the jury by making Burns appear to be a criminal when, in reality, he is no different than the rest of us.

The Prosecuting Attorney’s Office relies heavily upon the 2012 Court of Appeals decision. Firstly, as part of the post-conviction apparatus in the state, the Court of Appeals is not, as stated, an ‘independent panel’. The decision was made by elected—not independent—judges. We wish to make it clear that the court of appeals’ first order of business is to find reasons to sustain the convictions. In the instance referred to in the press release, the court’s reasons were not based on legal issues but on unsubstantiated perception:

“The trial court was therefore able to view the defendant’s demeanor and body language during the entire confessions, including their jovial delight in revealing certain details…”

It bears repeating that there is no scientific basis for the court’s observations. A person’s inner thoughts, his candidness or lack thereof, cannot be apprehended by observing his or her body language or demeanor, especially in a situation like this where the defendants, two fronting adolescents plied with alcohol, believed they were talking to mobsters. The only knowable lie is the RCMP mobsters lying about who they really were. That both the appeals court and the current prosecutor allow this kind of ‘evidence’ to bear legal weight is outrageous. They know better.

Finally, the issue of Jimmy Miyoshi must be addressed. The reason that Miyoshi stated that he knew of the murders being planned beforehand is seriously in doubt because the transcripts show him resisting both the RCMP mobsters and, later, the police who pressured him unrelentingly to make incriminating statements against his friends.

What we have in our possession is the entire interrogation of Miyoshi after Burns and Rafay were arrested in 1995.  What is most egregious, and left out in the press release, is that the RCMP threatened Miyoshi with 99 years in prison, and even a suggestion of the death penalty in Washington, if he didn’t give evidence against his friends. And that during this psychologically brutal interrogation that made constant use of the Reid Technique (police denying what they didn’t want to hear), Miyoshi repeatedly said that “They never did” discuss the murders beforehand. This time he was talking to people he knew to be the police.

What is also beyond doubt, and what the Netflix series points out, is that after Miyoshi returned to Japan, he was threatened by the loss of his job by his Japanese employer if he did not testify against his friends. His testimony, therefore, was coerced, because the absence of forensic evidence and the fear that the so-called confessions garnered from an illegal sting operation would be thrown out of court made the case against Burns and Rafay paper thin.

Finally, what forensic evidence there was pointed in opposite directions to the one taken by the prosecutors. The Bellevue Police and the King County Prosecutor initially asserted that a pubic hair found in Mr. Rafay’s bed was certainly left there by the killer. After it was found not to match any of the Rafays nor Sebastian Burns, they dismissed it as a ‘stray’. It didn’t belong to Sebastian, ergo it was irrelevant. “If the facts don’t fit the theory, change the facts.” That is the essence of tunnel vision and that is the source of the wrongful conviction of two young men who have now been imprisoned for 22 years.

Our conclusion is that the press release issued by the office of the Prosecuting Attorney represents either disingenuousness or willful blindness at best, in almost all respects. Justice has not been done in this case; “The Confession Tapes” now makes justice a possibility.

Ken Klonsky, Director: Innocence International