Murder without a body

Yesterday, the news we’d all been dreading was confirmed by Calgary police, and today a suspect was charged:

The man police have been investigating in the disappearance of a missing Calgary family has been formally charged with their murders.

Douglas Garland was arrested near Airdrie on Monday morning, as the search for five-year-old Nathan O’Brien and his grandparents, Alvin and Kathryn Liknes, turned into a homicide investigation.

He was escorted to the Calgary police arrest processing unit on Monday evening, prior to appearing before a justice of the peace.

On Tuesday, Garland was officially charged with two counts of first-degree murder in relation to the deaths of Kathryn and Alvin Liknes, and one count of second-degree murder in the death of Nathan O’Brien.

He is scheduled to appear in court on Wednesday, July 16, 2014.

When asked how police were able to lay charges despite not yet recovering the bodies of the victims, Calgary Police Chief Rick Hanson admitted it is a ‘complexity.’

“You can still find evidence that supports a homicide, unequivocally supports a homicide charge in the absence of a body.” says Hanson while on Global Calgary’s Morning News on Tuesday.

“Without bodies, you have to build a case which is based on pieces of evidence that have to pull together at a particular time,” adds Hanson. “You assess, you add evidence, you get new evidence in, you chase down some leads, you pull more information together… and every day you’re looking at what you’ve got.”

 

After processing the horror that someone took the life of an innocent little boy, many probably wonder how Garland can be charged with murder when none of the alleged victims’ bodies have been discovered. Needless to say, that will make prosecutors’ job of proving guilt beyond a reasonable doubt much more difficult – but not impossible.

Following the arrest of New Yorker Robert Bierenbaum for the murder of his wife fifteen years earlier – ABC News posted a fairly detailed piece explaining the burden to be met by prosecutors where there is no body:

To prove there was a death in missing-body cases, prosecutors must prove there has been no sign of the person’s existence. That means presenting close friends and family members who would say they haven’t heard from the alleged victim in a long time and that the missing person would not have just gone away without informing them. Prosecutors and investigators also comb through records in 50 states to show there has been no activity in the accounts belonging to the victim, such as Social Security funds, bank accounts and credit card activity.

“You have to develop an understanding of the victim’s life, the details of their life,” says California prosecutor Richard Holmes, who successfully convicted Alejandro Gilbert Ruiz in the disappearance and murder of his wife in 1980. “Who would they contact? Do they have any medical problems that would require constant attention? What are their habits? You have to do everything you can to bring the victim to life in front of the jury. Very few people drop off the face of the earth. You have to prove that the victim is unlikely to do so, disregard everyone they’ve known in the past, especially if they have nothing to hide from.”

Prosecutors also must illustrate the circumstances under which a murder could have occurred: evidence of a troubled relationship; the discovery of the victim’s blood in their house or the suspect’s house. A confession from the suspect to either police or other people is always welcomed by prosecutors. But that alone is not enough to win a missing-body homicide case. The law mandates that prosecutors should have enough evidence to prove their case without a confession because suspects often retract their statements.

[...]

Without the presence of a body, Pertler says, questions that normally would be uncontested, such as the occurrence and place of the death and the identity of the victim’s remains, become fuel for the defense. In missing-body cases, almost every piece of evidence presented by the prosecution can become the defense target for reasonable doubt.

“Most definitely they are the toughest cases you can face,” says Pertler. “With any murder case, there are certain elements that are no-brainers, like the death of so-and-so occurred in such-and-such a county and they died in this way. But without a body, you have the other side saying, ‘There’s no way you’ve identified these remains as belonging to the victim.’ You’ve got to hope that your case withstands the defense’s request for a directed verdict of acquittal from the judge [because of lack of strong evidence] and that your case passes with the jurors, who take their job seriously.”

[...]

Though they lack more direct physical evidence, missing-body cases, some lawyers say, ultimately can be stronger than standard murder cases with bodies and are more likely to withstand appeals. Because the body is missing, prosecutors must worry more about their case being thrown out before or during trial because of a lack of sufficient evidence. These obstacles, along with the fact that they have to prove there was a death by murder make prosecutors present a more efficient case.

“Circumstantial cases can often be stronger than direct evidence cases whereas the evidence you present is less susceptible to tampering,” says Joshua Marquis, who successfully prosecuted a missing-body case in Oregon in 1993. “You don’t have all the baggage that may come if police are not as careful as they should be at the scene of a crime. And I don’t worry about these cases being overturned on an appeal. Most judges won’t let you get past [the defense’s request for] a directed verdict of acquittal at trial if you don’t present a strong case. You combine that along with the fact that you convinced a jury to convict, it’s unlikely an appeals court will overturn the verdict.”

Bierenbaum was convicted, and as Christie Blatchford notes, there have been some successful missing-body murder prosecutions here in Canada:

There’s R vs. Pritchard, a decision affirmed by the Supreme Court of Canada. It’s a 2007 decision from the British Columbia Court of Appeal which involved a man convicted of first-degree murder despite the fact that the victim’s body has never been found.

There’s R vs. Ratte, another B.C. case where a husband was convicted of second-degree murder despite the fact his wife’s body was never found. The Supreme Court dismissed the application for leave to appeal.

There’s R vs. Wristen, a 1999 Ontario case where another husband was convicted of second-degree murder though the body of his wife has never been found; that was upheld by the court of appeal.

If Garland is convicted, it may bring some closure to that poor family – but only a little, if the bodies of Nathan and his grandparents remain undiscovered.  For any parent, not knowing for sure what happened to your child must be unbearable.

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Weekend viewing: “The Unfortunate History of the AMC Pacer”

It’s one of the most reviled cars of all time, but for a couple of years at least, it was a hit.  In fact, that was part of the problem: demand was so high that tiny American Motors ramped up production, and quality control suffered.

Admittedly I’m a sucker for old AMCs, but I always thought they looked kind of cool.  And a Pacer did serve Wayne and Garth well, after all.

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The greatest criminal mind Nova Scotia has ever seen

The only way this story could be any better would be if he’d been wearing one of these “FBI: Female Body Inspector” T- shirts:

A man in his 70s was observed impersonating a police officer at Aylesford Lake this past Canada Day.

The RCMP say a 74-year-old was patrolling the beach on Tuesday, flashing a badge and confiscating any liquor he found.

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Fred Pattje: Great Canadian, or GREATEST Canadian?

Someday, statues will be erected and songs will be composed about Nanaimo city counsellor Fred Pattje, who took it upon himself to, um, ban an event to be held on city property because it would feature anti-gay religious rhetoric one of the sponsors is a company owned by evangelical Christians.

Of course, some less enlightened folk might say the organizers of the event (which featured speeches by infamous, hateful radicals like Archbishop Desmond Tutu, Malcolm Gladwell and Laura Bush) should have been given the chance to respond to Pattje’s motion, or that maybe they should have been given more than four days’ notice.  But who has time for such legal mumbo-jumbo when you’re right and they’re wrong?

On May 9, Nanaimo’s city-owned Vancouver Island Convention Centre had been scheduled to host Leadercast, a telecast of an Atlanta leadership conference featuring speeches from South African anti-Apartheid activist Desmond Tutu, Canadian-born writer Malcolm Gladwell and former U.S. First Lady Laura Bush, among others.

But with only four days to go, Nanaimo Councillor Fred Pattje introduced a surprise motion withdrawing the event’s permit because it was “associated with organizations or people that promote or have a history of divisiveness, homophobia, or other expressions of hate.”

“It sends a message that I wish did not have to be sent, but here we are,” Mr. Pattje told the council.

Leadercast, which was broadcast in hundreds of communities across North America, is sponsored by the U.S. fast food chain Chick-Fil-A. Two years ago, Chick-Fil-A’s COO, Dan Cathy, attracted U.S.-wide condemnation from gay rights groups after he said that the acceptance of gay marriage was “inviting God’s judgment on our nation.”

Through an affiliated charity, WinShape, the company has also funnelled more than $5-million to anti-gay groups, although public backlash has prompted Chick-Fil-A to dramatically scale back such support for in recent years.

[...]

Mr. Pattje told the council he was motivated to get Leadercast’s permit withdrawn after receiving two phone calls from constituents and doing some subsequent Googling. As city staff were not given any time to research the 11th hour motion, and since Leadercast’s organizers had not been invited to testify, city council had to rely almost exclusively on Mr. Pattje’s account.

“Good decisions aren’t made on scanty information,” said lose dissident Mr. McKay.

Despite media reports that Leadercast was a “Christian conference,” it had no explicit religious overtones. While virtually all speakers were acknowledged Christians, the conference did not touch on same sex issues and the telecast’s official website does not even contain the words “Christ,” “God” or “prayer.”

When asked at council whether he had invited event sponsors to make their case before council, Mr. Pattje replied that it was “kind of beside the point as far as I was concerned.”

Spoken like a true Canadian patriot, carrying the spirit of university politics into adulthood.  Sure, maybe some people – even those largely supportive of GBLT rights – might say Mr. Pattje and most of his fellow councilors are two-bit fascists who deserve to have their asses sued off, and also prove that sometimes the often-infuriating Ezra Levant is exactly right.

But who cares about such details? We have souls to save! Or whatever the secular equivalent of souls are!

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Why France can ban the burqa

With the Hobby Lobby outcry sucking all the air out of the room, another major religious-freedom decision isn’t getting much attention:

Judges at the European court of human rights (ECHR) have upheld France’s burqa ban, accepting Paris’s argument that it encouraged citizens to “live together”.

The law, introduced in 2010, makes it illegal for anyone to cover their face in a public place. While it also covers balaclavas and hoods, the ban has been criticised as targeting Muslim women.

The case was brought by an unnamed 24-year-old French citizen of Pakistani origin, who wears both the burqa, covering her entire head and body, and the niqab, leaving only her eyes uncovered.

She was represented by solicitors from Birmingham in the UK, who claimed the outlawing of the full-face veil was contrary to six articles of the European convention. They argued it was “inhumane and degrading, against the right of respect for family and private life, freedom of thought, conscience and religion, freedom of speech and discriminatory”.

[...]

Her lawyer Tony Muman told the ECHR last November: “She’s a patriot” adding that she had suffered “absolutely no pressure” from her family or relatives to cover herself. While she was prepared to uncover her face for identity checks, she insisted on the right to wear the full-face veil, Muman said.

The European judges decided otherwise, declaring that the preservation of a certain idea of “living together” was the “legitimate aim” of the French authorities.

Isabelle Niedlispacher, representing the Belgian government, which introduced a similar ban in 2011 and which was party to the French defence, declared both the burqa and niqab “incompatible” with the rule of law.

Aside from questions of security and equality, she added: “It’s about social communication, the right to interact with someone by looking them in the face and about not disappearing under a piece of clothing.”

The French and Belgian laws were aimed at “helping everyone to integrate”, Niedlispacher added.

 

The Supreme Court of Canada has ruled that Muslim women may wear the veil while testifying in court in certain cases, so it’s hard to imagine a ban as far-reaching as the French one being upheld in Canada (nor in the United States or Britain, for that matter).  The different approaches actually illustrate the degree to which individual rights are emphasized on this side of the Pond, compared to continental Europe.

I can’t say I’m a fan of the burqa or other restrictive religious clothing, but I also think it’s not that great a leap from a government having the power to ban it, and having the power to make you wear it.

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Who’s afraid of Hobby Lobby?

On Monday, the U.S. Supreme Court issued a decision exempting closely-held, for-profit corporations from having to pay for health plans that cover certain forms of contraception, should the owners have a religious objection to same.

A predictable outcry from the left (and plenty of gloating from the right) resulted.  But Doug Mataconis (whose readers will know he has no religious objections to birth control – or anything else, really) argues that the decision is quite limited in scope, and was probably inevitable under the Religious Freedom Restoration Act signed into law by President Clinton:

First of all, the Supreme Court did not rule today that all for-profit corporations may make claims under the Religious Freedom Restoration Act. Instead, it limited its opinion to “closely held corporations,” which are typically defined as corporations where a majority of the shares are owned by five or fewer people (although the number can vary from state to state). Most closely held corporations are small businesses that don’t even have enough employees to fall under the requirement that employers provide coverage to their employees under the PPACA. Some, however, like Hobby Lobby, are larger corporations that still happened to be owned by a small number of people. …

…Reading the language of the statute, one has to admit that they had a strong argument in their favor in that regard and it’s difficult for me to say that the Court was wrong in its interpretation of the law here. Part of what the law requires is that the Court balance the religious claims asserted by the employers with the interests asserted by the government. In this case, the interest in question would be providing increased access to birth control to women. Even if you agree that this is a legitimate and important government interest though, it’s plainly obvious that there are means by which the government could accomplish this goal without requiring employers like the Greens to violate their religious beliefs. The most obvious means, of course, would be some form of direct subsidy to employees but there are other means as well. In addition, the Court found that the mandate in question placed a “substantial burden” on the religious liberties of the Greens and those similarly situated to them. Given this, the balancing test came down clearly in favor of the Greens.

Third, as noted above, the Court did not say that RFRA gives owners of companies like Hobby Lobby the right to refuse a whole host of items typically covered under a health insurance policy just because they might have a religious objection to those procedures. So, this case is not going to lead to Jehovah Witness employers refusing to cover blood transfusions or transplants. The Court also said that the holding should not be seen as meaning that a private employer of any kind could avoid liability for a claim of illegal discrimination based on their religious beliefs. This would seem to be addressed to concerns regarding people trying to use religion to avoid liability under laws banning discrimination against people based on sexual orientation. Obviously, what this decision actually means for future cases will depend on the facts of those cases and the Judges that hear them. However, it’s important to note that, just as it did in the Heller gun control case, the Supreme Court seems to be sending a signal here that its holding is not as broad as some advocates for one side or the other might hope or fear.

[...]

As for the opinion itself, I think the Court got the result right for the most part. In the end, a closely held corporation is really nothing more than a partnership with tax advantages. What ever you might call it, it is still a business that is owned by a small amount of people. If Hobby Lobby were a partnership or sole proprietorship, there would be no question that the Greens would be within their rights to assert a religious objection under the RFRA. Given that, it doesn’t strike me as being all that radical to say that they retain those rights when they enter into a different kind of business form that, ultimately, was chosen so that they could expand the company to the national operation employing thousands of people that it is today. We are still talking ultimately about the individuals who own the company and their rights, which is why this decision would not make any sense if you applied it to a publicly traded corporation owned by tens of thousands of individuals and institutions like Apple, or Exxon Mobil. …

There are perfectly reasonable objections to the Hobby Lobby ruling, but I don’t think it brings America any closer to The Handmaid’s Tale any more than the recent flurry of pro-gay-marriage rulings is turning the country into Sodom.

Speaking of which…

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In defence of Hillary’s defence work

The conservative Washington Free Beacon dug into Hillary Clinton’s representation of an accused rapist during the mid-eighties, and posted this audio recording from an interview given a few years later:

The Free Beacon‘s Alana Goodman argues that Clinton’s representation of this man, and her subsequent discussion of the case, raise serious ethical questions about the presumptive presidential nominee.  And to be fair, the fact that she discussed the case publicly, in such detail, is indeed questionable conduct for a defence lawyer:

From a legal ethics perspective, once she agreed to take the case, Clinton was required to defend her client to the fullest even if she did believe he was guilty.

“We’re hired guns,” Ronald D. Rotunda, a professor of legal ethics at Chapman University, told the Washington Free Beacon. “We don’t have to believe the client is innocent…our job is to represent the client in the best way we can within the bounds of the law.”

However, Rotunda said, for a lawyer to disclose the results of a client’s polygraph and guilt is a potential violation of attorney-client privilege.

“You can’t do that,” he said. “Unless the client says: ‘You’re free to tell people that you really think I’m a scumbag, and the only reason I got a lighter sentence is because you’re a really clever lawyer.’”

Clinton was suspended from the Arkansas bar in March of 2002 for failing to keep up with continuing legal education requirements, according to Arkansas judicial records.

This really isn’t what she’s getting attacked for, though.  And The Volokh Conspiracy‘s Jonathan Adler is troubled by Ms. Clinton’s zealous representation of client accused of a serious crime – something the legal system needs people to do – being used against her all-but-declared presidential run:

Much, if not all, of the criticism of Clinton resulting from this story is misplaced.  She was asked (by the prosecutor, no less) to represent a criminal defendant.  Her client was accused of raping a 12-year-old girl.  From what I can tell, Clinton believed her client was guilty but was nonetheless able to obtain a favorable plea deal because the government had mishandled incriminating evidence.  A forensic lab performed tests on blood stains found on the defendant’s underwear, but discarded the relevant piece of clothing (literally leaving a pair of underwear with a hole cut out).  Lacking the necessary physical evidence to convict, the prosecution offered a plea deal.  Some of the relevant court documents are available here.  A previously unreleased interview with Clinton about the case is available here.

What should we make of this story?  Perhaps nothing more than that Hillary Clinton represented someone in need and fulfilled her duty as a member of the bar to provide a zealous defense of her client.  This is not something for which she should be attacked.  We are all the worse off if the message sent to young lawyers is that representing guilty or unpopular clients is likely to be a political liability down the road.  Ably and effectively representing a criminal defendant — even one you believe to be guilty — is not “scummy” or inappropriate. Forcing the state to prove its case before it deprives an individual of their life, liberty or property is a noble endeavor.  So while I think the story is newsworthy, I think most of the attacks on Clinton for this episode are misplaced, and a bit opportunistic. [Note that some attacking Clinton are also calling for more more due process protections for college students accused of rape.]

[...]

The bottom-line here is that Hillary Clinton’s work on this case as a young attorney 40 years ago is interesting and newsworthy, but that’s about it.  Unless and until more damaging evidence emerges, there’s no basis for the new attacks on her.  Anti-Hillary folks should look elsewhere.

Contra The Washington Free Beacon, there is nothing “scummy” or “semi-sociopathic” about what she did (and, no, I don’t find the uncomfortable laughter on the audio tape interview with Clinton a decade-or-so after the fact to be troubling either — listen to it for yourself.)  She engaged in able and (as far as we know) ethical defense work — and defense work is a noble calling.  The WFB may be correct that it’s not a winning political argument to defend the work that defense attorneys do.  If so, that’s a sad commentary on our political system, and not something thoughtful commentators should celebrate or exploit.

Adler and his libertarian Volokh Conspiracy colleagues aren’t Hillary supporters, and neither am I.  (Fact is, the more I look at both major parties’ potential nominees for 2016, the more I find myself wanting Mitt Romney to run again.  And I didn’t even back Romney last time around.)  But in this case, it seems like she did her job and did it well.

Related: in April Adler savaged the Republican Governors’ Association for a campaign ad against the Democratic nominee for South Carolina Governor, which attacked his criminal defence work, and bemoaned the growing trend of politicians and activists – not just conservatives and Republicans, for the record – going after lawyers for doing their work:

Representing unpopular causes or clients is never easy, but it is necessary.  Organized efforts to blunt the careers of those who take on such efforts are shameful.  It would be one thing if Sheheen were accused of unethical conduct in his representation of his clients.  It is quite another to attack him for defending those who, however horrific their crimes, needed a legal defense.  A lawyer is responsible for his or her own conduct, and is not responsible for the sins of the client.

The RGA is not the first to attack lawyers for having agreed to represent unpopular clients or causes, but that hardly makes the ad any more defensible.  Others on the right wrongly went after attorneys who agreed to represent Gitmo detainees.  Folks on the left assailed Bush nominees who represented corporations or defended administration policies and attacked King & Spalding and Paul Clement for agreeing to defend DOMA.  Some members of Congress are also currently attacking district court nominee Mark Cohen because he helped defend Georgia’s voter ID law.  All such attacks are misguided.  Left unchecked, they pose a threat to the adversary legal system.  As Paul Clement wrote when he resigned from King & Spalding:

Defending unpopular positions is what lawyers do.  The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.

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