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Defending Cory Armishaw

Part of our special report "Truth, Lies and Confessions", June 24, 2012

Thumbnail image for smile1.jpgDefence lawyers are often a journalist's best friend.  So when Cory Armishaw's lawyer, Craig Parry, didn't return my phone calls, I was initially surprised, and then increasingly pessimistic about the possibility of doing a television story about Cory's case.  The 21-year-old man from Guelph, Ont., was alleged to have shaken three-month-old Jaydin Lindeman to death in 2006.  He later confessed to the killing during a police interrogation - one that used many elements of the Reid Technique, a controversial method that's increasingly being criticized for playing a role in eliciting false confessions.  And Cory's confession looked to be another one on a growing list.  The judge threw out his confession - along with the entire murder case against Cory.

Given the recent spate of successful, high-profile interrogations and confessions in the news, Cory's case was an important challenge to the positive spin put on the subject of police interrogations, and The National was keen to report on it.  But as is typical, inquiries to the Crown, and even to the Guelph courthouse to obtain trial materials, including the crucial video and transcript of Cory's interrogation by OPP Staff Sgt. Jim Smyth, were quickly forwarded to the attorney general's office, and responded to in the usual way - no comment, and no access to the public court files without making an application in front of a judge, a process that would take months.

The defence team was my only option.  I called Craig's junior on the case, Kirsten Van Drunen.  She was incredibly helpful and open to talking to me, but insisted I deal directly with Craig.  He'd get back to me, she assured me, but he just had a lot on his plate. 

So, as my calls went from enthusiastic, to persistent, to desperate, then bordering on stalking, my phone finally rang.  It was late in the day: Craig said he'd been in court, and was full of apologies for taking so long to get back to me.  And he'd be happy to help.

He was, in fact, a godsend.  He was willing to share copies of all the materials he'd preparedCory outside.jpg for Cory's defence, and in an act of extraordinary prescience, (or perhaps because his wife is a journalist), he'd made a special trip to the courthouse to get a copy of Cory's interrogation video that he could share with the media.  Most important of all, he said he'd talk to Cory for me about the possibility of doing an interview.  Needless to say, Cory has a well-earned distrust of others after all he's been through.  Within a few days, though, Craig delivered on that, too.

My esteem for Craig only grew once I learned what he was up against in his work defending Sandy coffee.jpgCory against his second-degree murder charge.  A confession is considered "the kiss of death" for a criminal accused - a near-impossible case to win.  So, as most defence lawyers would, Craig assumed he'd be negotiating a straight-forward plea bargain for his new client.  But Cory and his mom, Sandy Armishaw, gave Craig clear instructions; Cory is innocent, and he is not making any deals.

Once he reviewed the case against Cory, Craig soon realized that, aside from the confession, the prosecution didn't have much to go on.  There was no specific evidence pointing to Cory as the perpetrator.  In fact, he had left for his job at a furniture manufacturing plant early in the morning on the day Jaydin got sick and was taken to hospital.  Jaydin's mother, Kayla Lindeman, originally told police - twice - that Cory wasn't alone with the baby and couldn't have been responsible for what happened, and only changed her story to implicate Cory once she became aware that the police suspected her in the baby's death.  All the police had against Cory was his confession.

With advice from famed wrongful conviction specialist James Lockyer, Craig contacted the finest experts in the world to defend Cory's case, and spent years lobbying Legal Aid Ontario for funding to hire them to produce reports and bring them to Guelph to testify at Cory's trial.

As an additional, personal challenge, Craig's wife, Cherri, gave birth to twin girls just nine months prior to Cory's trial.  Sarah and Megan were born premature, each weighing less than 1000 grams, and the smaller twin, Thumbnail image for megan_0276.jpgMegan, was in and out of hospital with a number of life-threatening complications.  Happily, both girls, and their two older sisters, were at home by the time Cory's trial started.  But the ongoing care they needed meant that while Cherri looked after Sarah and the two older girls, Craig stayed with Megan, who was hooked up to an oxygen supply, beeping monitors, and a gravity feeding tube that required Craig to wake up every three hours during the night to feed her.  During the trial, Cory and Sandy Armishaw joked with Craig about his lack of sleep, but deep down, Craig suspects they were actually terrified about what kind of representation they were getting.  Turns out they had nothing to worry about.  

By September 2011, Craig was fully prepared for Cory's trial.  Apart from challenging the confession, the bulk of the expert evidence he'd lined up was to be used to dispute the Crown's theory of Jaydin Lindeman's cause of death.  His experts, neuropathologists Dr. Waney Squier in Oxford, England (read her full report here), and Dr. Jan Leestma in Chicago, pathologist Dr. Patrick Lantz in North Carolina, and Detroit-based biomedical engineer Dr. Chris Van Ee, all disputed the Crown's charge that Jaydin died of shaken baby syndrome.  In fact, they all concluded that little Jaydin wasn't murdered at all.  Rather, the absence of any fractures, bruises, grip marks or other evidence of violence, combined with their review of the hospital reports, pathology and all the circumstances surrounding Jaydin's death, indicated that he died of acute brain swelling, most likely as a result of his older sister falling on top of him before he was taken to hospital.

In the end, though, the issue of Jaydin's cause of death was never brought before the court.  What was expected to be a six- or seven-week trial ended after just two.

with Joe.jpgThe case ended quickly because of Craig's pointed and passionate attack on the methods used by the OPP sergeant, Jim Smyth, to obtain a confession from Cory.  As Craig told Joe Schlesinger during the interview, the more he watched the interrogation video, the more offensive he found it - for the way Cory was offered no option but to admit guilt, and especially for the way Cory was tricked into believing that the police had incontrovertible forensic evidence that proved he killed Jaydin.  It was an entirely false claim, but Cory had no reason to doubt it.

This is where another of Craig's experts had a critical role to play.  Craig arranged for Dr. Bruce Frumkin, a Miami-based clinical and forensic psychologist  who specializes in the psychology of interrogations, false confessions, and the Reid Technique (used by most North American police interrogators), to travel to Buffalo, N.Y., where he spent a full day evaluating Cory Armishaw.  While Cory presented well in the verbal and social spheres, Frumkin's testing also discovered that he did not process information very quickly, and his IQ score was near the bottom of the normal range compared to others his age.  Frumkin also used the Gudjonsson Suggestibility Scales test to conclude that Cory is a highly suggestible individual, more prone to being misled by law enforcement, more susceptible to police interrogation tactics, and consequently at greater risk than the average person of giving a false confession.

There was also a telling, real-life moment during Cory's assessment in Buffalo, when Bruce Frumkin got up to leave the conference room to use the facilities.  Cory nearly panicked, worried that he'd be found in violation of his extremely restrictive bail conditions, which prevented him being outside his house without the supervision of one of his court-approved sureties.  Frumkin included that event in his report, but the Gudjonsson Suggestibility Scales test has not yet been ruled admissible in Canadian courts, and wasn't ruled on in Cory's case.  Fortunately, they didn't need it.

Thumbnail image for ARMISHAW INTERROGATION.jpgCraig's initial arguments contesting the validity of Cory's confession completely convinced Justice Kenneth Langdon that they had been elicited by Smyth through the use of improper threats and promises, and as a result of interrogation tactics, including the use of fabricated scientific evidence, which overcame Cory's especially vulnerable will to resist the pressure.  

Justice Langdon threw out the confession, and because the Crown had no other evidence against Cory, the case was thrown out, too.  It was a storybook ending in the courtroom that day - almost.  As Craig tells it, he and his junior, Kirsten Van Drunen, were thrilled and relieved when they heard the judge's decision, but they noticed Cory still sitting quietly next to them. The legalese of the judge's ruling - on a blended voir dire having to do with a Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Cory and Sandy.jpgs. 10 (b) Charter right to counsel violation and the failure of the Crown to prove beyond a reasonable doubt that Cory's statement was voluntary - had gone a bit over Cory's head.  Kirsten rushed to explain to Cory that they had won.  He was free.  Then the tears came, followed by Cory's mom, who climbed over the bar to where the others were sitting and gave her son the biggest, longest hug of his life.

                                                    ***            ***            ***

During the production of this story, Michael Rafferty was convicted of the abduction, rape and murder of eight-year-old Tory Stafford.  Predictably, Rafferty's defence lawyer, Dirk Derstine, was peppered with the usual questions from the media: "How could you defend that monster?"  "How could you do that for a living?"  All I could think was, thank you, Dirk Derstine.  Because for all the Michael Rafferty's out there, there will always be a Cory Armishaw who desperately needs a defence lawyer, and not just a good one, but - as in this case - a great one.  Defence lawyers are all that stand between us and a police state; between us, and even more wrongful convictions than our excellent justice system has already produced.  Craig Parry was all that stood between Cory Armishaw, and a life in prison for a crime that he did not commit - for a crime that likely never even happened.  hold document.jpgCory is a man of few words, but I think he put it best when I asked him what he thought of Craig's work defending him against that heinous charge.  He just said, "Craig was awesome."  For all that, and for helping us tell Canadians about a serious problem in the way police interrogate criminal suspects - innocent or guilty, I couldn't agree more.

bonnie2.jpgProducer Bonnie Brown has worked at CBC News The National since 1998.  She also has a law degree from McGill University.

Read Cherri Greeno's story "Looking for a Miracle," about Thumbnail image for Thumbnail image for girls_0373.jpgthe devastating decisions, fears and hopes that came with the pre- and post-natal care of her and Craig Parry's twin girls, Sarah and Megan, in Kitchener, Ont.'s Grand Magazine. They're all doing fine, by the way.

Read the Ontario Superior Court of Justice decision R. v. Armishaw, 2011 ONSC 5624 (CanLII)

Go back to our Truth, Lies and Confessions home page to watch the video report and view more online content.