A Brampton man acquitted of murder after a judge raised serious concerns about the police tactics used during the investigation “was entirely the author of his own misfortune,” the Peel Police Services Board, former police chief and lead detectives allege in a statement of defence in a multimillion-dollar lawsuit.
Eric Morgan is suing the board, former police chief Michael Metcalf and five Peel homicide detectives for about $25 million after he spent more than three years in pretrial custody before being acquitted of murder in 2013.
His freedom came after Ontario Superior Court Justice Fletcher Dawson took the unusual step of instructing the jury to acquit Morgan after finding police had used “abusive” and “threatening” tactics against key witnesses and “manufactured” evidence incriminating Morgan.
But in a statement of defence filed last month, the police board, Metcalf and the five detectives on the case claim Peel police were at all times acting “in the interest of public safety.”
Their defence claim emphasizes the results of a recent ruling by the Ontario Independent Police Review Director (OIPRD), which found there was insufficient evidence to lay any misconduct charges because the tactics officers used to pressure witnesses “were consistent with their training.”
Those tactics — aggressive interrogation often referred to as Reid technique — have been the subject of a growing chorus of concern over what some experts say is an elevated risk of false confessions and wrongful convictions.
The latest condemnation of Reid-style interviewing comes from the Association in Defence of the Wrongly Convicted (AIDWYC), which this week criticized the OIPRD’s handling of Morgan’s case in a post on its website, saying the decision not to lay charges essentially endorses these interrogation tactics.
“It’s a tacit, if not express, approval of the techniques resorted to by the police,” Russell Silverstein, a Toronto lawyer and director on AIDWYC’s board, said in an interview.
Rosemary Parker, spokesperson for the OIPRD, said the OIPRD does not comment on individual cases.
“Speaking generally, complaints to the OIPRD are substantiated or unsubstantiated on reasonable grounds according to standards set out in the Police Services Act,” Parker said in an email.
Morgan was arrested in 2010 and charged with second-degree murder in the death of Mervyn Spence, who was a casual acquaintance. Spence was gunned down in November 2006 outside Brampton’s Malibu Marie’s nightclub. A well-known events promoter, Morgan had thrown a party that night to celebrate his 39th birthday.
No physical or DNA evidence linked Morgan to the scene; Peel police made the arrest based predominantly on the testimony of two eye witnesses.
But Dawson — who oversaw Morgan’s retrial, after the first resulted in a hung jury — expressed grave concern over what he viewed as problematic police actions used during interviews with key witnesses, including “overly aggressive and abusive tactics.”
In one interview, a detective used “leading and suggestive” questioning that showed he had an “agenda,” Dawson said. In another, Dawson found Morgan’s strongest alibi witness, Brian Cox, became “psychologically broken down” after an eight-hour “relentless onslaught” by Peel police and recanted testimony that supported Morgan’s innocence.
Dawson called Cox’s story change “the direct result of threatening and oppressive police conduct.”
At one point during the court process, Morgan was offered a one-day sentence for a guilty plea to manslaughter, but turned it down because he said he would not admit to a crime he didn’t commit.
Morgan’s lawsuit alleges Peel police used “highly improper and negligent investigation tactics” and that detectives had “tunnel vision” motivated in part by trying to achieve a 100 per cent homicide solvency rate for the year. According to a 2009 statement by the head of Peel Homicide, Spence’s homicide was the only 2006 case remaining for Peel police to solve.
But the statement of defence says Peel police had reasonable and probable grounds to arrest Morgan, and denies that investigators threatened, coerced, pressured or influenced witnesses in the case.
The defence claim alleges that any damages or losses allegedly suffered by Morgan are the result of “his own negligence” — including that he “failed to co-operate with the police investigation” and “perpetuated the culture of non-co-operation with police in his community.” It also alleges Morgan “misled and/or lied to police during the course of their investigation,” including that he and Cox, Morgan’s alibi, lied to police about leaving the club together immediately after the shooting.
The defence statement also alleges that Morgan had gang connections that were relevant to the case and that police knew Morgan had been communicating with those gang members throughout the night of Spence’s murder.
David Shulman, one of Morgan’s criminal lawyers, calls the allegations wrong and “victim blaming.”
Morgan was the event promoter on the night of the murder, which meant he was in touch with virtually everyone who attended his party — including some people who became suspects, but also others who became Crown witnesses, Shulman said.
Immediately after his arrest, Morgan waived his right to silence, offered to take a polygraph test and gave police the names of seven individuals he believed could confirm that it was physically impossible for him to have been involved in Spence’s death, Shulman said.
“He wasn’t required to talk to police or give this information, but he believed that his arrest was a big misunderstanding that would be cleared up if he was forthcoming. Eric trusted that the police would interview these witnesses fairly,” Shulman said in a statement to the Star.
In addition to suing, Morgan complained to the OIPRD. The probe, which included reviews of videos depicting the witness interviews in question and interviews with the officers, found the detectives used pressure tactics that were consistent with their training.
The report concludes the detectives had to “walk the line” to learn the truth or convince a reluctant witness to talk and their tactics were in line with Peel’s training and practices. “Each (officer) had extensive training and experience in interviewing,” reads the investigative report.
The OIPRD’s ruling points to a systemic issue, says Timothy Moore, a York University psychology professor who researches false confessions and the Reid technique.
“If abusive and oppressive tactics are consistent with how officers are being trained then the obvious inference to draw is that the training methods are at fault,” Moore said.
The Reid technique police interrogation includes an aggressive, confrontational and accusatory style of questioning, and it is typically used on suspects to assess guilt or produce confessions. The tactic assumes the subject of the interview is guilty — or that there is a strong likelihood of guilt — so the interview is conducted to obtain incriminating evidence or a confession.
Critics have said this technique can elicit false confessions when used on suspects. Research inspired by Morgan’s case has also shown forceful, Reid-style questioning on witnesses can produce false accusations.
During the OIPRD investigation, all the Peel officers involved denied they were employing the Reid technique during the interviews. The investigation also found only one of the officers connected to the case had any training in the Reid technique, and that officer’s involvement was limited to one interview that Dawson said was conducted in a fair manner.
Joseph Buckley, president of John E. Reid and Associates — the company that teaches the Reid technique — denies criticism that the interrogation style leads to false confessions. Among the guiding principles of the technique is to “always conduct interviews and interrogations in accordance with the guidelines established by the courts.”
“False confessions are not caused by the application of (the Reid) principles, they are caused when investigators ‘step out of bounds’ and engage in behavior that is inappropriate — threats of harm, promises of leniency, etc.,” Buckley said in an email to the Star.
The OIPRD report stated that Peel did not perform its own internal investigation into Dawson’s critical comments about its officers’ conduct. Peel would not confirm to the Star that no internal review was done, citing Morgan’s ongoing lawsuit.
One of the detectives named in the suit, Daniel Johnstone, has since been promoted in rank to Detective Sergeant.