Neuberger & Partners LLP - Truscott Case | Video Transcript

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ANCHOR: After 45 years of being labeled a convicted killer, Steven Truscott may be able to clear his name. Canada's justice minister says he'll announce this week whether Truscott's 1959 conviction for the murder of a Southern Ontario girl will be overturned.

[GRAPHIC: Truscott as a child]

ANCHOR: Just 14-years-old when he was charged, Truscott was originally sentenced to death.

[GRAPHIC: Victim's photo]

ANCHOR: But that was commuted to life in prison. And joining us in studio to talk about Truscott's case is criminal attorney Joseph Neuberger. Good morning.


ANCHOR: What are the options for the justice minister in this case?

JOSEPH NEUBERGER: Essentially he has two options. He can order a new trial, which would quash the conviction and it would go back before a jury in order to assess the evidence based on guilt or innocence. Or he could revert it to the Court of Appeal for consideration and one of the verdicts possibly there could be an acquittal as well.

ANCHOR: If he orders a new trial, considering the amount of evidence in this case and how long has passed, is any crown prosecutor likely to actually take it to trial again?

JOSEPH NEUBERGER: You know it would be a shame if it wouldn't. I mean I, I think by ordering a new trail it really works to the benefit of Mr. Truscott because this is an opportunity to appear before the court, have a jury of his peers now hear a case which would be procedurally fair and evidentially fair.

This is such an interesting case analysis from, you know, 2004 for a trial lawyer, because if you look back over the course of 45 years it's quite amazing how far we've come. Back then briefs were not disclosed to defense. Witness statements were not disclosed. There's so much evidence that was not disclosed to the defense that you can only come to the conclusion it was procedurally unfair.

And this is similar to the dissent that was in the Court of Appeal in 1966 when there was a reference. And when you factor all of that in together, a trial now would inevitably result in an acquittal just based upon the evidence itself, what is still available.

ANCHOR: So if that is the case, what's the larger impact for the Canadian justice system? This thing will have ramifications right across the board.

JOSEPH NEUBERGER: Well I think what's interesting about it is decisions which go back some 45 years, even 50 years; it's possible to have a fair review of it. There was a brief in place in the archives. There is many of the original statements.

There is still investigations that were done by police officers which weren't disclosed and weren't part of the evidence. You have much of the forensic or pathology evidence still available.

So what it says is you can go back many, many, many years in time and still review the fairness of a trial. It's quite interesting from that perspective, as frankly it should be. Time shouldn't be a factor in trying to undo an injustice.

What is also an important implication is it's--you always have to look at scientific evidence, forensic evidence, pathology, things that are developing sciences. Back then there was a large issue on timing of death. When we look at it now based upon what we know from forensic science, it's impossible to pinpoint 15 minutes of time that individual definitely died within. And so--

ANCHOR: Now--sorry.


ANCHOR: Now if he is acquitted, what steps does he have to take in terms of compensation because that really will be the next step after this?

JOSEPH NEUBERGER: Well if he's acquitted, first of all you have to take a look at the decision. In this case you have to remember there was a 700-page analysis done by an inquiry by Justice Kaufman [phonetic].

[GRAPHIC: Truscott as a child]

[GRAPHIC: Victim photo]

JOSEPH NEUBERGER: Then if he's acquitted either by trial or by the Court of Appeal, you have to take a look at their reasons.

[GRAPHIC: Truscott as a child]

JOSEPH NEUBERGER: Was this procedurally unfair? Is this an individual who's definitely cleared of the crime? And was there some real unfairness that existed at the time of the trial? If that's the case, he spent ten years in jail before getting parole, was under his parole warrant for a number of years. There certainly is compensation which is due.

And when you look at the evidence and the way the prosecution was handled, it's very similar to cases where you see Milgard [phonetic] and other decisions and--of courts where there's a real focus on one individual. This individual was arrested within 24 hours. Compensation is definitely available. It's something that can be addressed. Lawyers will argue about it inevitably but it's something that has to be addressed for this individual. If--

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