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mr. big meet mr. gladstone

One of the founding principals of criminal law in Western countries is the avoidance of false conviction, as expressed in Blackstone's Formulation that it is "better that 10 guilty persons escape than that one innocent suffer.

One of the founding principals of criminal law in Western countries is the avoidance of false conviction, as expressed in Blackstone’s Formulation that it is “better that 10 guilty persons escape than that one innocent suffer.”

According to Wikipedia, when William Blackstone wrote these words some time in the 1760s he was expressing an idea that was already old, having appeared in Genesis, and in the 12th-century writings of Maimonides, who set the bar quite a bit higher, at 1,000 guilty to one innocent.

The presumption of innocence, the basis on which all Canadian criminal trials are held, derives from this imperative against unjust conviction. As John Adams, second president of the United States, said, “if innocence itself is brought to the bar and condemned ... the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection.’”

On Monday, a Washington State appeals court upheld the triple murder conviction of two Canadians, Atif Rafay and Sebastian Burns, based on a controversial RCMP investigation technique known as the Mr. Big scheme. Mr. Big is an elaborate ruse in which a group of undercover agents pose as a criminal gang and dupe the suspect into a confession.

Although police in the U.S., like those in the UK, are forbidden by law to use the method, the case against Rafay and Burns was allowed to proceed on the basis of evidence gathered by an RCMP Mr. Big team.

Mr. Big is an expensive, last-resort trick usually employed where the possibility of a conviction on other grounds is remote. It’s a brilliant technique for extracting confessions from suspects who have withstood normal interrogation methods, and no doubt some criminals have been convicted that might otherwise have walked free. But does it stand up to Blackstone’s Formulation?

In the Burns and Rafay case, there is compelling evidence over and above the Mr. Big sting to suggest that the two then-teenagers may have been guilty of killing Rafay’s parents and his sisters in 1994 to get their hands on a sizeable inheritance. Another then-teenager who knew the pair and claimed to have a hand in the planning of the crime testified against them.

On the other hand, they had a decent - though possibly manufactured - alibi, and there was no physical evidence linking the two to the crime. Despite a very messy crime scene - the Rafays were bludgeoned to death - neither Rafay nor Burns bore a trace of blood or any other source of the victims’ DNA.

In order to gather enough evidence to convict the two, undercover police posed as a crime gang, leading Burns to believe he was being recruited. Police posing as gangsters bullied, badgered, and bribed a confession out of the youth, without which no conviction would have been possible. In short, the Washington Court of Appeals has upheld the conviction of two Canadians based on evidence gathered in Canada in a highly questionable manner that would be illegal anywhere in the U.S.

This is not to say that Rafay and Burns are innocent. Who can say? The prosecution’s version of events was at least as believable as that of the defendants’, and Burns’ confession, however dubiously attained, lent credibility to that particular story. But was their guilt ever really proven to a degree that would have satisfied Blackstone, Maimonides, or Adams?

Here in Whitehorse, arguments wrapped up this week in the trial of Christina Asp, for the murder of Gordon Seybold. Again the prosecution based its case largely on the work of an RCMP Mr. Big sting. Asp has admitted to being present when, in her version of events, her boyfriend Norman Larue beat Seybold to death with a baseball bat and then torched his cabin. But the story she told Mr. (in this case Ms.) Big was that she too wielded the bat.

Between them, the trial lawyers in their closing remarks nailed the question. When was Asp lying? Defence, of course, says she was lying to Ms. Big. Crown says she’s lying now.

Either way, there’s motive. If you want a big bad crime boss to think you’re tough, tell her you beat an old guy to death and burned his house down. If you want a jury to think you’re innocent, tell them you didn’t.

The Mr. Big scheme is a brilliant way to catch criminals who might otherwise fall through the cracks. If Asp killed Seybold, if Burns and Rafay killed the Rafay family, and Mr. Big helped to prove it, that’s a success of the system.

But a confession made under the threat of displeasing a crime boss - potentially fatal as we all know - and the bribe of a job in the organization, if unsupported by better evidence, is no evidence at all. It was bought and paid for, it was given under duress, and when it comes down to a question of who the accused was lying to, what is there to go by but the presumption of innocence?

Blackstone never meant to suggest that letting the guilty walk free is a good thing. On the contrary, he was measuring something bad against something infinitely (or perhaps only 10 times) worse. But for a prosecution to rely solely on the assertion that the accused is lying to the jury, but was telling the truth to Mr. Big, would offer something closer to a 50-50 chance of wrongful conviction.

If you’re ever accused of a crime, whose odds would you prefer to face, Mr. Gladstone’s, or Mr. Big’s?

Al Pope won the Ma Murray Award for Best Columnist in BC/Yukon in 2010 and 2002. His novel, Bad Latitudes, is available in bookstores.