Ken Thompson R.I.P. plus NY Times Editorial and NY Post

Never have I been so devastated by the loss of a political figure as in the untimely passing of Ken Thompson, Kings County District Attorney for only three years. It is through Thompson’s Conviction Review Unit (CRU) that David McCallum was released from prison on October 15th 2014. As all of us who were involved in David’s case from 2004-14 know, David would still be in prison were it not for Ken Thompson.

The story of David’s release began with Rubin Carter and ended with Ken Thompson. Both are now dead but their lives were certainly not lived in vain.

The suddenness of Thompson’s death reminds me of the brief period (the same three years) in office that ended when John F. Kennedy was assassinated. While the symbolic importance of a president far outshines the image of a district attorney, it may be fair to say that Thompson accomplished more on a local level than Kennedy was able to accomplish as president. In fact, Kennedy’s legend was enhanced by his death; his presidency short on accomplishments, like defusing the Cuban missile crisis, and perhaps more notable for misadventures like Vietnam and the Bay of Pigs invasion. Thompson’s CRU took off and functioned as it was meant to from day one. Many innocent people (twenty-one and counting) were released from prison. He established a principle we can only hope will be maintained in Brooklyn and copied throughout the USA: the truth is more important than the functioning of legal machinery. Thompson has a legacy but, still, he will be greatly missed and greatly mourned.

Among NY City and State officials, along with US legal VIP’s, David McCallum was the only exoneree invited to speak at the funeral. See the NY Post article below.

NY Times Editorial:

Police killings in Tulsa and Charlotte


The recent murders, extra-judicial killings, (or were they lynchings?) of two more African American men, Terence Crutcher of Tulsa, Oklahoma and Keith Scott of Charlotte, NC, points to a disturbing trend in law enforcement. Why are so many police ready to draw weapons and shoot to kill? It’s as if the American public (and there are many non-African Americans who are also killed) are citizens of an occupied country, suspected of malice toward the occupiers simply by the nature of the jobs they do. What is being missed here?

First, the omnipresence of guns means that any citizen in various states (North Carolina and Oklahoma being just two of them), is first suspected of carrying a firearm because he or she has a right to do so. Anything seen in the hand of a suspect is first assumed to be a gun. The police, many of whom are against the proliferation of firearms, don’t want to be the victims. When police are murdered the word goes around to precincts that a police officer must shoot before he himself is shot.

The second, and related, problem is our diminishing ability to use words. Guns speak louder. Police are blunt instruments, as was seen in the video recordings of both the Crutcher and Scott killings. They scream at suspects to get them to drop their weapons. What if they don’t have a weapon? What are they supposed to drop? The shootings themselves are not meant to disable but to kill, to kill without evidence, which is the same as lynching. When suspects represent no immediate threat to the police, the use of reason is preferable, but, more and more, reason, science, logic and empirical evidence is disregarded, replaced with fear, anger, pseudo-science, and bluster.

What has happened to the American public? Has reason failed? Have words failed? Has education failed? “Hands up, don’t shoot.” If people really thought about what Donald Trump represents, the country, like the police, is ever more becoming a blunt instrument. Racist language thrives in this fascistic environment. Kill or be killed. Deny humanity.

On CNN, a police spokesperson commented on the Crutcher killing. Anyone who looked at it saw the murder of a weaponless man posing no threat to the police. But don’t believe your eyes! The police spokesperson insisted that we needed to know the full context. That is how language can obscure. The female police officer involved was charged with first degree manslaughter but the ongoing conversation defies reason. Let me ask: if a police officer is murdered under any circumstances, how many people want or need to know the context? And we haven’t been a witness to that killing.

Final comment on the Scott killing: that gun and holster were legal to carry, even if they belonged to the victim. That gun and holster would have his prints on them. From what I could see, there is a possibility that one of the police placed the gun at his feet after the cellphone video cut off. What I will always remember is the police officer putting handcuffs on a dead man. What an image of a wrongful conviction!

RCMP Terrorist Plot

RCMP terrorist plot 

Matthew Behrens writes about the Nuttall and Korody case wherein the RCMP enticed two drifters into committing terrorist acts in order to burnish their own image. The same mechanisms used here are present in all Mr. Big sting operations: enticement and intimidation. Rather than a legal device, Mr. Big is nothing but a charade and so, I’m afraid, is the RCMP itself. A dangerous charade.

B.C. Court finds RCMP organized terrorist plot

| August 31, 2016

At the end of July, the Supreme Court of British Columbia found that agents of the Royal Canadian Mounted Police engaged in the planning of, preparation and funding for, and facilitation of a terrorist offence. By cruelly exploiting two impoverished, recovering heroin addicts with clearly obvious mental health challenges, the Mounties did what any state security agency does: when there are no terrorist plots to justify their existence, they simply create them. It’s great PR, because the Mounties — an organization built on human rights abuses within and without the outfit, from systemic misogyny to complicity in torture — always need some positive publicity, and when they can orchestrate an easy-peasy takedown of the hapless plotters they have set up, it’s a no-risk affair.

But thankfully, Judge Catherine Bruce is having none of it. In a decision that should be required reading for everyone in this country, she stayed the proceedings against John Nuttall and Amanda Korody, the alleged Canada Day pressure cooker plotters of 2013, when she concluded:

“[T]he world has enough terrorists. We do not need the police to create more out of marginalized people who have neither the capacity nor sufficient motivation to do it themselves…. The [police] were clearly overzealous and acted on the assumption that there were no limits to what was acceptable when investigating terrorism.”

While Bruce’s decision runs into the hundreds of pages, it is nonetheless an incredibly valuable primer on how the RCMP has always operated — without regard for the very laws it is supposed to enforce — and without a care for the human rights of those it targets. The decision reveals an organization that, despite numerous judicial inquiries recommending significant changes when it comes to state security investigations, remains wedded to the same old ways in which anything goes. Clearly, Canada’s iconic horsemen expect that they will be protected by a culture of impunity.

Indeed, none of the Mounties who coerced, browbeat and threatened Nuttall and Korody have been charged with an offence, even though they led the two hapless individuals to believe that they would be killed if they did not go along with the RCMP-led plot to plant pressure cookers on the lawn of the B.C. legislature.

Baseless foundation for investigation

From the very beginning, the Mounties’ “Operation Souvenir” operated on the same utterly baseless foundation that the Mounties have relied upon in other so-called national security cases (see for example, the cases of Abdullah Almalki, Ahmad El Maati, Muayyed Nureddin, Maher Arar, Abousfian Abdelrazik, Benamar Benatta, Omar Khadr, among numerous others). Things began with a “tip” from the notoriously incompetent Canadian Security Intelligence Service (CSIS) that Nuttall was a threat to public safety based on “unverified general concerns.” When a CSIS representative met with B.C. RCMP Superintendent Bond, he said Nuttall “might” be a recent Muslim convert wanting to recruit others to violence, but did not provide any sources for the contention. Without any evidence that Nuttall was involved in criminal activity, and proceeding on the assumption that Nuttall “posed no imminent threat,” the RCMP nevertheless commenced an investigation that rapidly evolved at National Headquarters into a major case, with the direction to Superintendent Bond that he “work hard on this file and treat it as a priority investigation.” Judge Bruce says it was apparent that Ottawa considered the investigation “urgent and a national priority.”

Souvenir was largely driven by a Sgt. Kalkat, whose manner the Judge found to be “both dictatorial and designed to eliminate dissenting views,” especially any opinions raising concerns about entrapment and illegal activities conducted by the Mounties. Kalkat was also someone who, like other Mountie-led state security disasters, equated Islam with national security threats. As Judge Bruce writes:

“When questioned why he believed there was a risk in light of the lack of recent evidence that Mr. Nuttall was expressing extremist beliefs, the sergeant testified that … Mr. Nuttall’s cellular telephone usage and blog were associated with the registered name of ‘Muhammad Muhammad.’ He also referred to Ms. Korody’s wearing of the hijab and her conversion to the Muslim faith. Apparently Sgt. Kalkat associated terrorism with adherence to the Islamic faith in general.”

Kalkat was called on the carpet by Judge Bruce for an incredible lack of credibility. “I found it astounding that he kept so few notes of meetings and conversations with his team about the project and yet purported to have a detailed recollection of the events favourable to the Crown’s position,” she found, echoing the findings of even the weak-kneed review committees of the RCMP and CSIS who have regularly documented similarly sloppy, lazy work. Significantly, neither the original operational plan for Souvenir nor an application for an extension “sought authorization to include undercover officers passing themselves off as part of a terrorist group.” Perhaps it was simply assumed that the Mounties could do as they pleased, because they never seem to be held to account when they do break the law.

Targets were isolated, vulnerable drug addicts

Nuttall and Korody were both were isolated, vulnerable individuals who relied on daily deliveries of methadone to help them with their heroin addiction. They rarely went out save for coffee and cigarettes or the odd round of paintball, preferring to stay home and play video games. Korody was often ill, constantly throwing up. While Nuttall was apparently known by some for spouting off what are labelled “extremist” views, especially with complete strangers, even Sgt. Kalkat agreed in court that “this is not the usual behaviour of a serious terrorist.”

But Kalkat and a group of undercover RCMP officers were determined that Nuttall’s “extremist” views meant he posed a threat to national security, and they committed enormous resources into encouraging Nuttall to compose a “feasible” terrorist plot for which they could then arrest him. Indeed, while the ultimate budget has not been released, the Mounties paid almost $1 million in overtime to some 200 officers on this pork-barrel project.

An objective observer would have concluded that Nuttall’s grandiose talk, while perhaps disturbing, was just that: talk. Nuttall believed that in addition to his capacity to spark a U.S. civil war, he could hold the world hostage by hijacking a nuclear submarine at Nanoose Bay simply by swimming up to it. He also bragged that he could hack into the Israeli government’s server while he discussed storming the Esquimalt military base with AK-47s, and building Qassam rockets to shoot towards the Parliament buildings in Victoria. But the Mounties wanted badly to take his word for it. Nuttall was the kind of perfect “low-hanging fruit” that the FBI regularly sets up and entraps to claim U.S. victories in the war against terror.

By February of 2013, the “Special O” group of the Mounties discontinued Project Souvenir surveillance. Judge Bruce found that “it is apparent that had there been any indication that Mr. Nuttall was an imminent threat, Special ‘O’ would not have been re-assigned elsewhere.” The project nevertheless remained a national priority for the RCMP’s E-INSET Division in Ottawa, based on, among other things, a CSIS “advisory letter” which alleged Nuttall had been attempting to purchase potassium nitrate from pharmacies, but again, no source was revealed for the tip, and no investigation was undertaken to determine whether Nuttall knew that potassium nitrate could possibly used in the production of explosives.

The RCMP never bothered to ascertain whether he was in fact purchasing the product on his meagre welfare cheque or doing anything beyond what the Mounties’ surveillance did report: that Nuttall was picking up prescriptions for his grandmother. No Mounties reviewed video surveillance of the Nuttall residence until very late in the game to confirm what was alleged by CSIS either, and at no time did the RCMP interview neighbours or associates, nor did they monitor the couple’s Internet use to determine if they were communicating with people alleged to be involved in terrorism (a post-arrest computer search confirmed no such communication had ever occurred). The Mounties also installed surveillance pole cameras outside the residence, but did not even keep them on 24 hours a day.

Cooking up a plot

The well-paid Souvenir team cooked up 28 different scenarios designed to entice Nuttall into coming up with a terrorist plot. But their introduction of an undercover officer (Officer A) who played the role of a well-connected, high-functioning terrorist and alleged Islamic spiritual adviser with major international connections did little to push Nuttall beyond his grandiose imaginings. All it did was make Nuttall and Korody feel like they finally had a true friend, and they relied on him for many things in their daily life. But endless efforts by Officer A to get Nuttall to write out a terrorist plan on a laptop proved fruitless; indeed, the only time Nuttall talked about extremist activities was in the presence of Officer A, who encouraged him to think about how to put his ideas into action.

Korody was never one to talk about such plans, but the Mounties insisted on bringing her into the mix as well, figuring that you need two people to fall under the definition of a terrorist group. Hence, Officer A insisted that Nuttall order Korody to attend meetings and RCMP-arranged reconnaissance missions even when Korody was way too ill to leave the house. As Judge Bruce found, “[t]he command team discussed ways of involving Ms. Korody in the scenarios, expressing the belief that ‘the only way to get charges [against her] is from her mouth,'” given that this recovering heroin addict would often say things that mirrored what Nuttall was talking about.

Concerns raised internally by some within the Mounties were generally dismissed, including the undercover team’s assertion that “Officer A had overly excited Mr. Nuttall about doing jihadist acts and was giving him the capacity to carry out terrorist acts for which he lacked the resources and contacts.” As early as March, 2013, Souvenir team members were expressing concerns about entrapment as well. But this did not stop Kalkat and team members from pressing Officer A to get Nuttall to stop talking his grand schemes and to focus instead on a simple plot like the placement of three pressure cooker bombs at the provincial legislature building for Canada Day. Indeed, the RCMP was committed to making it happen by that deadline, despite every effort by Nuttall to step away from the plans, despite his incessant callout for spiritual advice, and his persistent doubts that this was the right thing to do. Officer A prevented him from getting advice from an imam, preferring to refer him to the very “extremist” conclusions that are rife on the Internet.

The RCMP often expressed frustration at the slow pace of Souvenir. Simple things like downloading a map of Victoria proved impossible for Nuttall; he never thought to purchase a paper map. Judge Bruce concluded:

“[I]t was only the RCMP that was interested in a cheap, quick and easy means of carrying out violent jihad. Mr. Nuttall continued to express a desire to carry out several grandiose schemes that, even if possible, would take years to organize and far more resources and know-how than he or Ms. Korody possessed or could reasonably acquire.”

In May, Kalkat updated his superiors by reminding them Nuttall posed “no public safety concerns” and that Officer A had complete control of Nuttall, who would do nothing without the say-so of his “friend.” Officer A continued to provide Nuttall with incorrect interpretations of Islam (telling him, among other things, that the duty of every Muslim is to die a martyr).

As Officer A kept working on Nuttall to come up with a simple terrorist act, Nuttall continued to dream big, with plans to shut down Guantanamo Bay by, among other things, hijacking a VIA passenger train that no longer existed. As Judge Bruce notes in her decision, much of Nuttall’s understanding of the terrorist world came from watching Hollywood movies like Rambo III.

As the Mounties’ self-imposed Canada Day deadline loomed large, the undercover operatives:

“[d]iscussed creating a challenge scenario where Officer A would essentially take away Mr. Nuttall’s dream of being part of this jihadist organization if he did not focus on a real plan and show some dedication and initiative….[Superintendent Bond] agreed that the next scenarios were designed to focus Mr. Nuttall on a feasible plan even though he recognized the entrapment issues would be challenging to avoid if this occurred.”

One member of the team, Corporal Matheson, raised doubts, writing:

“The last thing we want to tell the target is that he needs to go away and come back with a real plan. There may come a time for that when we want to decisively challenge the target’s intentions. At this stage, however, the target may come back with another plan simply because we told him to. This would be coercion at best, and at worst it would be us making a terrorist out of someone who might not otherwise be.”

Planning a press barrage

As May headed into June, the Mounties were already preparing press conferences for the July 1 scenario, even though, as Judge Bruce points out, “Curiously, these discussions occurred prior to any concrete plan emerging from the undercover operation.” There was still no indication that Nuttall was prepared for, or about to engage in, a terrorist act beyond all of his big talk, with no potential for action absent the prodding and participation of the undercover team.

The RCMP, meantime, was seeking legal advice on how best to set Nuttall up to meet the requirements of terrorism charges. Kalkat asked for legal advice on whether the Mounties could simply establish a checklist to determine whether they would be able to meet all the elements of the offences. The answer from one legal adviser in Ottawa, as summarized by Judge Bruce, was “a checklist could not be provided and the undercover shop’s request for one demonstrated their lack of understanding regarding the complexity of the terrorism offences.” With respect to Nuttall’s partner, Korody, the legal adviser posited that the Mounties’ attempts to bring her into the mix, thereby creating a “terrorist group,” was “not a particularly compelling situation given the nature of their relationship. You require evidence to satisfy the statutory definition of terrorist group: one or more persons whose objective is to commit or facilitate a serious violent act, to intimidate the public, for a religious, political or ideological purpose.” At that point, the only group that satisfied the elements of the offence was composed entirely of RCMP officers.

While Nuttall continued to express serious doubts, especially with respect to the potential for killing innocent people, and requested spiritual advice, Officer A reassured him that he should just follow his heart. Their troubling relationship and the role of the RCMP is summed up by Judge Bruce:

“Officer A told Mr. Nuttall that if a good plan was formulated he would finance it and take care of all of the logistics. Effectively Officer A was counselling Mr. Nuttall to come up with a better terrorist plan. This promise of help did not seem to placate Mr. Nuttall who broke down in tears. Officer A consoled him and said that all would be fine and they would do it together ‘by baby steps one at a time.’ Mr. Nuttall responded that he needed direction from Officer A and he asked what he should be doing between now and the next time they met. Significantly, Mr. Nuttall said that he was not going to carry out any jihad until he had the spiritual guidance he was looking for in regard to whether killing was prohibited or permitted by the faith. In response, Officer A refocused Mr. Nuttall on working towards a jihadist plan and Mr. Nuttall became newly infused with enthusiasm about coming up with a good plan this time and wanted his hard drive back to begin working on it.”

Cult-like RCMP practices

While some within the RCMP felt this was going nowhere fast and should be shut down, others continued to press for a plan that Nuttall could embrace. Officer A engaged in cult-like practices, isolating Nuttall by preventing him from being with family and acquaintances and advising against attending the mosque. As Nuttall worried about killing people, he was equally concerned that Officer A, portraying the big terrorist whose organization has invested time, blood and money into this operation, would be displeased. And so he tried to meet Officer A in the middle with plots that sounded significant but would not shed blood. When he came up with scenarios like “symbolic” Qassam rockets without warheads that would cause minor property damage but little else, Officer A was not pleased. Instead of embracing a less lethal plan like this, Officer A of the RCMP:

“[r]eminded Nuttall about his earlier statement that killing all taxpayers was part of the plan…Mr. Nuttall agreed that soldiers were fair game but insisted the recon would help to ensure no innocents were harmed by the rockets; and he commented that everyone was a potential Muslim convert and this caused him to doubt his plans for jihad. In the end, he maintained a need for spiritual guidance from someone who was qualified to interpret the Quran on these issues.”

But Officer A continued to divert Nuttall away from any opportunity to receive the kind of advice that would have once and for all addressed his real concerns and, perhaps, stopped him from spouting the rhetoric that the Mounties found so problematic to begin with. Officer A continued to provide inaccurate religious justifications for violence, a particularly vile tactic that exploited vulnerable people who had given him complete trust. As the B.C. court decision found:

“The defendants were recent converts to the Muslim faith and constantly struggled with issues of what was permitted and what was prohibited by Allah and the Quran. On several occasions Mr. Nuttall had demonstrated indecision about whether it was prohibited to kill anyone even apart from innocents. He often said that the rockets could be symbolic only and not contain any warhead. Yet he was now being counselled towards violent extremism by the police.”

As this farce went on, the RCMP should have confirmed what Judge Bruce identified as:

“Mr. Nuttall’s ineptitude even for the simplest tasks and Ms. Korody’s detachment from what was going on. It should have been readily apparent to the RCMP that Mr. Nuttall was incapable of crafting a plan of action to support a terrorist plot…. it should have been apparent to the police that Mr. Nuttall had the gullible nature of a young child.”

But the Mounties wanted a big takedown and the gratitude of millions of Canadians for saving the day on a national holiday. They continued to set up further scenarios, including badly botched “reconnaissance” missions and shopping trips that were frustratingly bizarre. In addition, one Mountie’s report to the National HQ “mentioned the possibility of obtaining an authorization for the commission of offences such as participation in and facilitation of a terrorist activity,” something that the Mounties got free reign with in the subsequently passed, Trudeau-supported C-51.

Pressure for pressure cookers

The Mounties continued to pressure Nuttall into accepting a pressure cooker scenario, which he seemed to reject literally right up until the last minute, when he and Korody appear to have gone through with the placement of the devices (rendered inert by the undercover team that helped put them together!) because they feared they would be killed if they pulled out of the plot. Judge Bruce confirms that their fear, in the context of the relationship with Officer A and other members of the team portraying themselves as dangerous terrorists, was credible and real.

But the Mounties still had to gather some kind of evidence. They insisted Nuttall draw up a plan on his computer, which he never had the focus to do. They removed them from the “distractions” of their home to a hotel to focus on the plot. Every time Nuttall came up with obstacles to the plot, he was assured that all details would be handled by Officer A. They also continued to deflect from Nuttall’s doubts, with Judge Bruce writing that “Mr. Nuttall expressed concern about targeting women and children and both Officer C and Officer A assured him that they would take care of that problem.”

Meantime, memos from within continued to express doubts. Corporal Matheson wrote:

“Within the preceding few hours we learned that the targets had access to money and had chosen not to use it for bomb parts. Providing more money to get the targets past their reluctance to purchase bomb parts would not provide good evidence. Secondly, if we were to give the targets money for a fictitious purpose with the belief that the money would actually be used for bomb parts, we ourselves might be breaking the law in so far as we might be financing terrorism.”

While internal memos indicate Sgt. Kalkat knew the pair could now be arrested prior to July 1 based on suspicion they posed an imminent risk, they were not picked up. That would have taken away from the drama of planting the harmless devices under the RCMP’s watch, and certainly watered down the news angle that resulted in the banner headlines that recalled the Boston marathon bombing of earlier that spring.

Desperate to get the plot going

Desperate to get the plot going, the Mounties then proceeded to be part of what Judge Bruce describes as:

“[t]he most chaotic and disorganized shopping trip conceivable in spite of several specific directions passed on to the defendants about where to buy items on their list. Even though Mr. Nuttall’s shopping list consisted of a relatively small number of ordinary objects and supplies (batteries, pressure cookers, nails, an electric drill and a driver set), it is quite apparent that absent Officer A’s constant prodding and refocusing Mr. Nuttall could never have completed the job. Over and over he would forget what he needed and what he already had. Officer A was required to make pointed suggestions and give specific directions in regard to the shopping list to ensure that Mr. Nuttall moved forward with the required purchases. Mr. Nuttall was easily distracted and needed to be continually reminded about what had to be done. Ms. Korody was of very little assistance; for the most part she slept in the rear seat of the vehicle. At one point she left the vehicle to vomit….It also became apparent during the shopping trip, as well as during the private time the defendants spent alone at the Sundance Motel, that there were serious impediments to their carrying out this terrorist plan that were only resolved because of what the RCMP did for them.”

In another sign of the cruelty of targetting the extremely vulnerable and gullible Nuttall and Korody, Bruce notes Sgt. Kalkat:

“[g]ave no thought as to how the defendants’ dependence on methadone would impact their ability to think clearly about their actions. In my view, both Ms. Korody and Mr. Nuttall often appeared to be in a dazed state during the videotaped scenarios. Ms. Korody commonly slept through most of the meetings with Officer A. Their state of consciousness should have been a real and substantial concern during the undercover operation but it was ignored by the police.”

In essence, the Mounties devised a plan for which they choose the date, the means, the location and the logistics. There had been no pre-existing plot that needed to be infiltrated and stopped. But the state cannot be allowed to conduct such sting operations, and as the Supreme Court of Canada notes (in the landmark “Mr. Big sting operation” Hart decision that the Mounties clearly refuse to accept):

“The state must conduct its law enforcement operations in a manner that is consonant with the community’s underlying sense of fair play and decency. It cannot manipulate suspects’ lives without limit, turning their day-to-day existence into a piece of theatre in which they are unwitting participants. Such an approach does violence to the dignity of suspects and is incompatible with the proper administration of justice.”

Ultimately, Judge Bruce found:

“[t]he defendants had proven themselves to be marginalized, isolated people who espoused extremist jihadist views but were neither motivated to act on their beliefs nor capable of taking steps to accomplish acts of violence in support of their beliefs. Some of the officers involved in Project Souvenir appeared to hold this view of the defendants and advocated a different course of action than the one spearheaded by Sgt. Kalkat.”

Mounties counselled extremist views and violence

Judge Bruce was also appalled at the role the Mountie splayed as “spiritual advisers” to Nuttall, noting:

“The fact that Officer A chose to give religious advice at all is objectionable; however, preaching ideas that promoted the use of violence and allaying the defendants’ doubts about killing people makes his conduct far more sinister. When Mr. Nuttall said that he and Ms. Korody had serious doubts that killing people would please Allah, Officer A gave him the same spiritual advice about pre-determination that violent extremists use to radicalize people…. Knowing that Mr. Nuttall had serious doubts about carrying out a mission that could kill innocent people, Officer A told him that there was no time to obtain spiritual guidance.”

Like good capitalists who wanted the bang for their buck, she notes:

“The RCMP would not have been willing to abort their plan for the July 1 planting of the devices at the last minute after so much preparation had gone into getting the operation to this point and after many thousands of dollars had been invested in the project….There is no evidence that on their own or when they were alone Mr. Nuttall and Ms. Korody crafted plans to carry out jihadist plots. It was only when they were with Officer A and the other undercover officers that they talked about committing acts of violence for a terrorist purpose. For months during the undercover operation Mr. Nuttall did nothing but talk about jihadist plots and the police became very impatient and frustrated with his apparent inability to take any positive steps towards accomplishing anything.”

RCMP: Fraud, deceit, threats, exploitation

From the beginning, the RCMP engaged in deceit, fraud, implied threats in the absence of an ongoing criminal venture, exploited vulnerabilities and friendship, and engaged in clearly illegal conduct. Judge Bruce writes that:

“In my view, Sgt. Kalkat’s decision to push ahead with the operation despite the lack of motivation shown by the defendants, his concerted efforts to eliminate any dissenters from his team, and his desire to bring the project to a speedy conclusion without due regard for the criminal nature of the acts committed by the undercover officers, cannot be regarded as good faith… The RCMP’s preoccupation with motivating the defendants to commit an act of terrorism appears to have distracted them from more important considerations such as the legality of their actions. All of these circumstances render the illegal acts committed by the police more egregious and, in combination with the overall conduct of the police, an abuse of process. One must not forget that there was little risk to the public to justify illegal acts by the police. The RCMP did not act to break up a pre-existing plan to carry out a terrorist plot. There was no evidence that the defendants had taken steps to formulate a terrorist plot; were in communication with known terrorists or terrorist organizations; or possessed any expertise that would have been of value to a terrorist organization. The police were not infiltrating a sophisticated terrorist organization. The illegal acts committed by the police were not directed at the defendants or designed to frighten them into committing the offence. However, it is equally offensive for the police to commit illegal acts that enable an offence in circumstances where they knew the defendants could not have committed the offence absent police assistance.”

When the 2013 arrests occurred, RCMP Assistant Commissioner John Malizia crowed:

“These arrests are another example of the effectiveness of our integrated national security enforcement team, who worked tenaciously to prevent this plan from being carried out. We detected the threat early, and disrupted it.”

While this is a sickening, sad plot, Canadians may expect more of the same under the Trudeau government, which supports the very C-51 that legalizes such abominable behaviour. Indeed, the Trudeau government wasted no time in showing its support for the RCMP creating and organizing terror plots. It immediately appealed Judge Bruce’s decision, re-arresting Nuttall and Korody following their brief release from three years in custody, and placing them under a terrorism peace bond.

Meanwhile, the people who plotted the terrorist act are running Canada’s national police force.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. ‘national security’ profiling for many years.

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Mr. Big invalidated once again

The case of John Nuttall and Amanda Korody, a pair of would-be terrorists who were entrapped and enticed by a Mr. Big sting to plant a fake bomb at the BC legislature, points, once again, to the flawed methodology of Mr. Big itself. Some are calling this case a “one-off” because of the gullible nature of the defendants and the unlikelihood that they would ever have committed this ‘crime’ had they not been given the full means to do so by the RCMP. I must praise BC Supreme Court Justice Catherine Bruce for throwing out their conviction. However, I would question the assessment that this case is a one-off.

What is similar in all Mr. Big stings is the key to why it succeeds in getting confessions and in drawing people into criminal acts. It uses the threat of violence and implied violence: BOTH. In the case against Atif Rafay and Sebastian Burns, the pair were directly threatened by the fake mob boss with loss of life if they were to be arrested and taken into custody. The boss said he was afraid that, if taken into custody, they would give evidence against the gang itself. Hence they had to confess to Mr. Big to make the charges go away because Mr. Big would rather see them killed than to have the gang compromised. The RCMP itself has admitted to such threats in this case.

The two cases, while different in almost every aspect (one being an investigation, the other an inducement), nevertheless possess the same key to success. If a person fears for his or her life, they are liable to do things that will compromise them. Just look to the behavior of people in concentration camps who are/were coerced to kill others because their own lives were threatened. Fear of death is a great motivator.

Beautiful Letter From Malachy Rice after seeing David & Me

Mr. Klonsky:
After watching your son’s documentary I felt compelled to reach out to Mr. McCallum.  However, I was unable to find contact information and am hoping that you will forward my comments to him.  You sir, are to be commended on raising such a fine young man, who deserves commendation in his own right.

Dear Mr. McCallum:

I recently saw the documentary Fight for Justice:  David and Me.  Its story, which is your story, is painful and horrific.  I know that the pain I felt in learning your story is not even an iota of the pain you, your family, and friends felt for far too long.  Yet it is also a story of inspiration, because of your determination to define your life even while behind the bars of a cell.

There are some who may dismiss your story based upon the belief that the claim of  your false confession is itself false.  However, such people most likely do not have the benefit of personal experience that lends credibility to your claim.  You and I lived our teenage years in drastically different places.  As young adolescents, you lived in a city gripped by the vice of a crime epidemic while I grew up on idyllic Cape Cod.  Although we grew up in different places, we grew up in similar economic circumstances, as my family belonged to the working class poor.

In my early teenage years, I mowed lawns during the summer to earn money and was accused of stealing silver from the home of one of my customers.  Admittedly, the offense for which I was accused is trivial compared to the offense you faced; however, this experience provided me with a perspective I have not fully appreciated until I learned your story.  To this day, I remember the fear I felt when a police detective grilled me about doing something I knew that I did not do.  I was fortunate in that my involvement in the case ended with one interview.  I also benefitted from a couple of things you did not:  1.) I was interviewed with my mother present, and 2.) the color of my skin (I am white).

In no way am I trying to compare our experiences, but only to provide a context for how I can empathize with your experience.  Learning your story made me face a question I had never asked myself:  what if I had been convicted of that offense?  Would I have been able to go to college on an academic and athletic scholarship?  If I had not been able to go to college, then I obviously would not have been able to attend a prestigious graduate school, again on academic scholarship.  There is no question that without my education that my professional accomplishments would never have happened.  I raise my academic scholarships not to boast, but rather to use them as an illustration.  Despite my abilities, my life may have been sidetracked in ways I cannot imagine if I had been convicted of an offense for which I was accused but entirely innocent.

However this is not the purpose of my writing.  The point of the above paragraphs are simply summarized by, but for the Grace of God there go I.  The reason I am writing is to thank you.  I want to thank you for being the man that you are.  To thank you for your courage and grace.  Most of all, to thank you for your spirit.  Admittedly, the gratitude I express is selfish.  It is selfish because I am grateful for your story because it epitomizes the power of hope in uncertain times.  Our economy is stagnant, our public discourse is uncivil and even more stagnant, and we live in a country divided in too many ways; like race, class, and gender.  Yet your story of facing insurmountable odds with dignity, and refusing to relinquish hope, offers a salve to our wounded times.  It is a story of hope and faith in a time when we need hope and the ability to believe more than ever in my lifetime.

I am profoundly sorry for the injustice you endured.  It pains me to know of the loss of your freedom during what is consider the best years of your life.  However, I do not think those years were lost.  As difficult as it was for you to spend those years, you spent them in order to ultimately inspire hope.  I cannot imagine the darkest nights you spent in prison, of the pain and loneliness you felt, and there is nothing I can do to assuage that pain or dispel that loneliness.  All I can do is offer a humble and sincere thank you for enduring them.
Thank you for your courage and for enduring the incredibly difficult passages of your life’s journey, and for your willingness to share your journey.  For your journey enriches us all, and will make profound differences you never imagined and may never know.

Malachy Rice

Ivan Henry awarded compensation by BC Court

Last week, the BC Court of Appeals awarded eight million dollars to Ivan Henry, wrongly convicted of a string of rapes committed in the mid 1980’s, in recognition of 27 years of incarceration, suffering and the destruction of his life (including the overdose death of his daughter, Kari). I don’t need to go into the details of a case that is readily available on Google. What is of interest to me now is that this settlement comes after the City of Vancouver and the federal government conceded that Henry was wrongly convicted while the province of British Columbia insisted on forcing Henry and his legal team to go through another costly judicial charade. Judge Christopher Hinckson ruled that prosecutors in this case were liable for the suppression of exculpatory evidence. (Many jurisdictions in the United States afford complete immunity to prosecutors. New York State is only on the verge of passing a bill that would allow for oversight in questionable cases.) In addition, the police themselves were guilty of creating a fraudulent ‘lineup’ where a recalcitrant Henry was held in a headlock by a police officer.

Prosecutor immunity amounts to prosecutor impunity. No public servant should be allowed to avoid scrutiny of their work. The protection of prosecutors is one of the main indirect causes of wrongful convictions. The reason for this is obvious: if the prosecutors have nothing to lose, they will put together dubious and crooked cases because they have everything to gain in prestige and advancement by a conviction. No risk is involved.

I met Ivan Henry, in 2011, when Rubin Carter joined me for a book launch of Eye of the Hurricane at Capilano University in North Vancouver. He and his large family wanted to meet Rubin who was only too happy to oblige. The Henrys must still have that group photo that was taken at the event. I knew that Ivan was still carrying a great weight and continued to do so when I met him two years later at UBC Law School with David Milgaard. One of the heaviest weights–and David McCallum is dealing with this right now–is the time it takes for a wrongly convicted person to receive compensation. The exonerated, many of them in their sixties like Mr. Henry, need to get on with their lives and not spend years uselessly reliving the trauma. The parsimonious justice ministers and district attorneys string these people out for unconscionable periods of time. There is simply no excuse for this behaviour; if the shoe were on the other foot, say a justice minister’s son or daughter was wrongly convicted, I wonder how long the settlement would take?

After this recent decision, Susan Anton, the BC Attorney General, said she would study the case. Does this mean she might appeal it again? Will this serve justice in any way? I say get on with compensating Ivan Henry (now 69 years old) and recognize the full extent of the tragedy that has been visited on an innocent man. Congratulations, Ivan. May you find some comfort in the remaining years of your life!

Prosecutor’s confession

April 20, 2016: second anniversary of Rubin Carter’s death.

Recent article with respect to Kevin Cooper’s San Diego, CA) pending execution, A.M. Stroud, prosecutor from Louisiana, weighs in on the dangers of his own prosecutorial misconduct:

Assistance has come from an unlikely corner — a prosecutor from Louisiana who tried a similar case. The move comes in part because A.M. Stroud III has publicly acknowledged that he ignored evidence that would have proven Glenn Ford’s innocence. Ford was exonerated in 2014 after spending 30 years on that state’s death row. He died of lung cancer a year later.

“Instead of searching for the truth, I was determined to convict Mr. Ford,” Stroud said. “Because of my actions, an all-white jury convicted Mr. Ford and sentenced him to death in December 1984. Thereafter, appellate courts upheld Mr. Ford’s wrongful conviction. As a result, Mr. Ford spent 30 years on death row in the maximum security penitentiary at Anglola, Louisiana, one of the most horrible prisons in the country.

“To be frank, when I prosecuted Mr. Ford for a crime he did not commit, I was arrogant, narcissistic and caught up in the culture of winning. I did not seek truth or justice. I sought only to win,” said Stroud.

The prosecutor has appeared on “60 Minutes” and in other media to apologize for his actions and warn other prosecutors from making “revenge for victims the dominate motivation and winning at all costs the goal.”

These words validate Rubin “Hurricane” Carter’s belief that many wrongful convictions involve prosecutorial misconduct. Stroud’s actions were typical, his remorse atypical. Good on you, Mr. Stroud.

Jian Ghomeshi and the Law

The Jian Ghomeshi case, the accusations of sexual assault brought against the CBC host, and the trial itself, point out something I’ve referred to countless time in this blog. Whatever police and prosecutors might say to the contrary, the primary purpose of the law is not a tool to uncover truth.

We may not like the  judge’s decision nor the defense lawyer’s tactic of putting the accusers on trial, but the verdict was correct in the context of the legal game. It’s plain that Gomeshi engaged in rough sex–even physical viciousness–so people, especially advocates for victims of sexual assault, believe that he evaded proper punishment for his crime. They believe the complainants who maintained that the ‘sex’ took place without their consent. They are mistaking their interpretation of events, however accurate, for the workings of the law.

The case against Ghomeshi was fatally weakened by the stories of the complainants. They maintained contact with the defendant despite having been traumatized by his behaviour. In some instances, they attempted to cover up these contacts. Let’s say, for argument’s sake, that the behaviour of the complainants was understandable, that they were attempting to maintain some kind of control over the situation and their psyches. While this interpretation may be true, the law deals more successfully with external behaviour than internal states of mind. From this perspective, if one were to judge the actions of the complainants as if he or she were observing their external behaviour without interpretation, I think they might understand why the judge made the decision that he did.

On the other hand, I am repulsed when magistrates make moral judgments against people, just as I think that Judge Mertel’s scolding of Sebastian Burns was erroneous. These moral judgments assume a greater knowledge than a judge could possibly have. He conflates an internal state with an external behaviour, i.e. the women were attempting to deceive the court. But why would three women, two of them whose identities were protected, go to such trouble simply to deceive a court? Were they seeking revenge? The questions are very much to the point but the verdict of the trial has nothing to do with intuition.  The bottom line is “What is provable?” Neither Ghomeshi’s nor the complainants’ motivations are relevant; they are assumptions. What is known in a court of law is what can be factually proven. For better or worse, the defense attorney focused her cross examinations on the facts. A conviction against Ghomeshi, from that point of view, would have been a wrongful conviction. And yet, the truth behind this case may not have been addressed. It is irrelevant to the court. The paradoxical problem occurs when a person is wrongly convicted through legal technicalities and the truth is ignored. The irrelevance of truth cuts both ways.