Blood in the Water

by Silver Donald Cameron

  “I’m told there’s satellites passing over us each and every day, day in and day out, okay? I’ve heard of a company that provides a service to the police and the military that if you give them a location, a date and time, they’ll go back and they’ll check their satellite images and there’s a very good likelihood that the satellites that they have passing over would have taken an image of that location at that particular point in time, okay?

  “They can blow those images up and it will give a clear picture of what was taking place. Now I don’t know if the investigators have considered doing that, but if they were to go back and contract one of these satellite companies, and get an image of that collision taking place between those two vessels, what would that image show the investigator?”

  “The collision,” says James—and that’s all he ever says about the idea. If you got a photo of the collision, it would show the collision. Period. What more is there to say?

  At Richardson’s request, James reviews his day. On June 1 he rose at 3:00, was picked up by Dwayne at 4:25. The crew loaded bait on the boat and left the Premium Seafoods wharf in Arichat at about ten minutes to 5:00. The Twin Maggies steamed to Cape Auget and started hauling traps. They had several strings of traps, including a string of 125 traps running in towards Petit de Grat, and they finished hauling them between 7:00 and 7:30. They were back at the wharf in Arichat at 12:05, as usual.

  Richardson needs him to slow down, because he’s getting only little bits of what James is saying. He asks James to review the day again, starting from the time they left the wharf at 4:50. James does so, in great detail. Richardson doesn’t know the area, and apparently doesn’t have the benefit of a map. He also doesn’t have much of an ear for French, so his attempts to follow James’s lobstering itinerary provide some inadvertent comedy. James talks about setting fifteen traps in an area known as “Hautfonds,” the Shallows; Richardson can’t decipher that name.

  “Old—?” he says.

  “Hautfonds, they call that the name,” says James.

  To Richardson, it sounds Chinese.

  “Au Fung?” he says. “F-U-N-G?”

  “Yeah, that’s it,” says James. “We got fifteen there at Hautfonds.” He continues, but Richardson is completely lost, so they start again.

  “Tell me everything about that, leave nothing out, from the time you left the wharf…”

  The conversation goes on. No, he didn’t see Phillip Boudreau, he saw the blue boat that he believes was a shrimper going into Arichat for ice. Tell me about your afternoon, says Richardson. So James does, twice. He denies that the Twin Maggies saw Midnight Slider at all on Saturday; he insists that the two boats collided the previous day, in heavy fog. He says Phillip rammed the Twin Maggies twice, waving a baitchopper, a long heavy knife comparable to a machete.

  “He rammed the bow of the boat because he was either on dope or drunk or what, but he ran into the bow of the boat with his boat, and then he turned around and he hit it again. He showed me the chopper. He said, ‘I’m going to cut all your traps.’ He had the chopper in his hand. He wasn’t an easy fellow, I’ll tell you.”

  “He wasn’t what?” says Richardson, flummoxed again. On Isle Madame, “not easy” means not easily pushed around, stubborn, forceful in pursuing what one wants.

  “He was a bad fellow,” says James. “Maybe he’s hiding in the woods, you don’t know.”

  As the interview draws to a close, Richardson asks whether James would be willing to take a polygraph examination, a lie detector test. A polygraph, says Richardson, is “very accurate.”

  “Yeah,” says James, “but they don’t work all the time.”

  Richardson persists: A person who is being truthful will have no problem with a polygraph examination. Would James be willing to take such a test?

  “If I have to, I will. I have no choice.”

  No, says Richardson. It’s voluntary. Would he be willing to do it?

  “I’m telling you, if I’m forced to, I’ll have to.” And that’s all James will say. Soon afterwards, Richardson takes him home. The interview has taken just under two hours. The screen goes blank.

  * * *

  —

  Back in the courtroom, Justice Kennedy dismisses the jury for the day, and then expresses his concern about the Mountie’s suggestion that James should take a polygraph exam. It is, he says, “manifest that the officer overstated the reliability of the polygraph. Now he was doing it for a purpose, but I worry about the jury having some sense that if Mr. Landry had only taken a polygraph he could have cleaned this whole thing up. In fact, results of polygraph examinations are not admissible in court in this country, and they’re not admissible for good reason. They’re not nearly as reliable as the officer would have suggested, but the problem is that triers of the facts might very well think they’re definitive when they’re nothing of the sort. So I may say something to the jury in the morning about the polygraph.”

  Both the prosecution and the defence agree. Luke Craggs also wonders about a more general issue.

  “This goes back to the concern I had at the outset,” Craggs says, “that police will say things that are either hearsay that they gathered as a result of the investigation, or things which flat-out aren’t true, such as the polygraph—or you may recall the earlier example the officer gave about satellite imagery being available, and overstating the availability of that imagery. These are interrogation techniques, and I think it’s important that the jury understand that they are interrogation techniques.”

  Justice Kennedy agrees.

  “I could tie that into a repeat of what I said at the very beginning: that it’s what Mr. Landry says, not what the officer says, that they are to consider.” He could also remind them that this interrogation took place very early in the investigation, so the officer asks James to consider how his story will look when Phillip’s body is recovered and examined—which didn’t happen. When the jury returns in the morning Justice Kennedy will address these matters, reminding the jury that the only actual evidence in the video is what James Landry says; what the police say is not evidence.

  There is something surreal about this. As a spectator in courtrooms, I sometimes feel I am watching actions taking place in an alternative reality. For example, anyone who watches courtroom dramas on television has heard judges say things like “The jury will disregard that remark.” The trial then continues as though the jurors have obediently wiped those words from their cranial hard drives. But in fact the jurors can’t un-hear the remark; it has lodged in their memory, and it will have an effect, try as they may to disregard it. Similarly, when Nash Brogan introduced that extraordinary petition of Isle Madame citizens calling for Dwayne Samson’s release on bail, he didn’t really expect the judge to send Dwayne home. But by demonstrating that the people who knew Dwayne best considered him a trustworthy man in a bad situation, he was ensuring that everyone in the courtroom understood how spectacularly out of character it was for Dwayne to be accused of any misdeed at all, let alone murder.

  All of which creates some serious questions when a jury watches a video replay of an interrogation such as James Landry’s. Confessions are by far the most persuasive form of evidence, and the police will go to a lot of trouble to obtain them. Constable Richardson’s approach has been based on the Reid technique, developed in the 1950s by a former Chicago policeman turned security consultant named John Reid, who was also involved in the development of the polygraph. Reid developed his interrogation technique in part as a more civilized alternative to the traditional third degree, which obtained confessions by using serious physical threats and actual torture—beatings with rubber hoses, sleep deprivation, and the like. Not surprisingly, many third degree confessions were false.

  The Reid technique is more subtle, but it too relies heavily on coercion, as Nash Brogan’s original description of the police procedures makes clear. Reid interro
gations start by holding the accused in a bare room on a hard chair, waiting for hours for something to happen. The room is often unheated or overheated; throughout the June 2 interrogation, James is constantly complaining that the room is stiflingly hot. Holding a suspect over a weekend allows the police to prolong the isolation and discomfort.

  When the interrogator finally arrives, he stands, looking down on the suspect, and declares that the police now have evidence that clearly shows the suspect is guilty. It’s obvious to everyone. So tell me about it, and don’t lie. If the suspect wants to remain silent, the officer disregards that and continues pressing the suspect to talk. If the suspect tries to claim innocence, the interrogator overrides, interrupts, and ignores the comments. Next, the officer produces an account of the case—what happened, how it happened, the obvious guilt of the accused. The officer may lie, dissemble, mislead, and threaten in order to get a confession.

  Finally, the interrogator turns to “moral minimization,” sitting down and talking sympathetically with the suspect. I understand why you did what you did. Your wife nagged you, kept wasting money, wouldn’t discipline the kids. You lost your patience. Could have happened to anyone. I’ve felt that way myself. You’re not a bad person. Just tell me about it. I promise you’ll feel better. In an astonishingly high proportion of cases, the Reid technique results in a confession, which the officer goes on to flesh out, record, and have the suspect sign under oath. But a shocking number of those confessions are false.

  In the United States, the Supreme Court confronted the shortcomings of the Reid technique as far back as 1966, in the celebrated Miranda decision. In that ruling the court held that, to guard against bullying interrogations in a hostile setting, people arrested must be informed of their right not only to remain silent but also to have a lawyer present during questioning. “If you do not have a lawyer, one will be provided to you.” How often have you heard that sentence in American police shows? You never hear it in Canadian shows, because Canadian law doesn’t provide such safeguards. James Landry, for instance, repeatedly said that his lawyer had advised him to say nothing, and that’s what he wanted to do. Sergeant Richardson simply ignored those wishes and went on with the interrogation.

  One disturbing result of a Reid interrogation is that a jury watching the video will hear a great deal of false information from the interrogator, and no matter what the judge says, the jurors will probably remember it. They may or may not realize that it’s false, and in their deliberations they may or may not, with the best will in the world, distinguish between what they’re allowed to remember and what they’ve been ordered to forget.

  The truly appalling feature of the Reid technique is its tendency to generate false confessions and wrongful convictions. The Innocence Project is a non-profit legal organization based in New York that works to reverse wrongful convictions through DNA testing. In a study of three hundred wrongful convictions reversed by DNA evidence, the project found that 25 percent of the original convictions involved false confessions, self-incriminating statements, or guilty pleas.

  As a result, the Reid technique lay under a heavy shadow even in 2013, when James Landry was being interrogated. The previous year, Alberta Provincial Court Judge Mike Dinkel was faced with a confession obtained by Calgary police after an eight-hour Reid interrogation during which the accused fruitlessly asserted at least twenty-four times that she wanted to remain silent. The interrogation, Dinkel found, “had all the appearances of a desperate investigative team that was bent on extracting a confession at any cost.” He threw out the confession, finding that the Reid technique “has the ability to extinguish the individual’s sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning. I denounce the use of this technique in the strongest terms possible.” He ruled that the confession obtained from the interrogation was involuntary and therefore inadmissible.

  In 2015, the RCMP officially discarded the Reid technique in favour of a new Phased Interview Model for Suspects, an approach that interviewing specialist Sergeant Darren Carr described as “less Kojak and more Dr. Phil.” The new phased interviews, which were adopted “forcewide,” said Carr, are “all about getting the person talking, letting them say what they have to say and focusing more on things like provable lies and slowly dismantling the story rather than accusing them.” Perhaps the most important difference is that the new approach is focused on gathering information rather than getting a confession. As Carr put it, with the new technique, “we aren’t blindly chasing after the confession.”

  But that development would take place in 2015. On June 7 and 8, 2013, Dr. Phil was nowhere in sight. Kojak and the Reid technique were alive and well and living in Antigonish, Nova Scotia, where James Landry sat in a bare interrogation chamber, waiting to record another conversation with Brian Richardson for a jury of his peers to review.

  9

  COURTROOM 3: JAMES LANDRY’S STORY

  NOVEMBER 26, 2014

  ON WEDNESDAY, NOVEMBER 26, Justice Kennedy begins by telling the jury that the presentation of evidence is coming to an end, and that he will soon deliver his charge to them. By the afternoon he’ll be able to give them “some idea of what your future holds.” He also instructs them to disregard Sergeant Richardson’s suggestion in the interrogation video that James should take a polygraph examination. In Kennedy’s view, the officer shows “exaggerated confidence” in the accuracy of lie detector tests.

  “Polygraph evidence is not admissible in Canadian courts,” Justice Kennedy says. “We don’t allow it to come into the courtroom. And there’s a reason why we don’t allow it, because it’s not nearly as accurate as the officer suggested.” In Canada, he says, “when we’re determining credibility, we do that with juries, not polygraphs. So my suggestion to you is that you ignore any reference to that polygraph.”

  Shane Russell introduces the next video, Exhibit 26, which is Sergeant Richardson’s interrogation when James was arrested on June 7, a week after Phillip’s death, and charged with second degree murder.

  Richardson begins by confirming that James knows what he’s been arrested for and that he had a chance to speak to a lawyer. Did he understand the lawyer’s instructions to him?

  “Yeah, he told me not to spoke a word, not to tell you nothing. So that’s what I’m gonna do.”

  Richardson acknowledges that advice, and repeatedly assures James that he doesn’t have to say anything. He also reminds James that anything he does say might wind up in court. James repeats several times that he’s not going to say anything. Richardson acknowledges the comments, but continues the interrogation. Things have changed since the earlier conversation, he says. On that occasion, James was free to leave at any time. Now he’s not free to leave. All three of the Twin Maggies’ crew have been arrested and charged with second degree murder; the investigation has continued and has turned up a range of evidence; and the evidence shows that James was lying in his earlier interrogation. The police know that there was an altercation Saturday morning; that shots were fired; that the Twin Maggies rammed Midnight Slider and ran over it.

  “That’s totally contrary to what you told me,” Richardson says. “There is now no doubt whatsoever that you and the other two crew members are responsible for Phillip’s death. Craig was arrested yesterday. Dwayne is under arrest. He’s being charged with second degree murder as well, okay?”

  Richardson keeps on talking, trying to get James to say something, anything. He talks about Phillip, calls him a tyrant who was poaching lobsters, cutting traps, “causing a lot of grief for a lot of people in that area. It was only a matter of time before something happened. He in some regards was the author of his own misfortune.” James is a hardworking fisherman trying to provide for his family, and Phillip is “taking away from you and your family. We know what he’s been doing.”

  “He’s been doing that for ten years,” James grunts. />
  In Courtroom 3, Justice Kennedy stops the video playback. He wants the jury to remember that Richardson’s extensive comments and questions are not evidence. The only evidence here is what James says. The interrogator is trying to get a statement from James, and he says various things “that the other evidence doesn’t reflect. He’s saying things to James Landry, some of which will coincide with the evidence in this case, and some of which almost certainly won’t.” In other words—in keeping with the Reid technique—the officer will tell James the truth if the truth is useful. If a lie is useful, he may well tell a lie. But Justice Kennedy is not so rude as to explain the point that baldly.

  The video resumes. Richardson slowly gets a few grudging responses from James. James has been fishing for forty-eight years, says Richardson. No, fifty-two years, James corrects him. He started with his father when he was thirteen. Five years ago, when he turned sixty, he signed his licence over to his daughter.

  “You worked hard,” says Richardson.

  “Worked hard,” James agrees. “I had three jobs, me, to pay my licence from my uncle.”

  And then a guy like Phillip goes out and cuts your traps.

  “Twenty in one day he cut, and ten the next day. Listen, I’m not the only one that hated him either.”

  Richardson goes on and on, explaining how he understands James’s frustration, how he can see that James would be enraged to come upon Phillip cutting his traps, how it’s natural that James’s rage would lead him to do something he wouldn’t have done if he hadn’t been pushed to his limit. But, says the officer, other people are affected by the consequences. Craig is forty, with a young family. Dwayne has twin eight-year-old girls. They’ve got their entire lives ahead of them; they’ve got children depending on them. If James had been thinking of that, he wouldn’t have done what he did.