Thursday, August 2, 2012

Interview Material Could Be Key To Murder Trial

Amid all the forensic material gathered in the case of slain Chinese university student Lin Jun, an interview with a research subject known as “Jimmy” may seem insignificant.
But the motions to keep that interview confidential — introduced Friday by accused killer Luka Magnotta on the one hand, and the researchers on the other — are garnering attention across the country as they bring into direct opposition the desire to prosecute a heinous killing by all means available and the public interest in safeguarding the confidentiality promised to research subjects like Jimmy, who would otherwise remain silent.
If a judge quashes the motions and allows the interview to be included with other evidence, it will be a first in Canada, says Simon Fraser University criminologist John Lowman.
“I can’t imagine what they think is in that interview that would be relevant, which doesn’t meant there isn’t something,” Lowman said Tuesday. “But one has to ask what is in the other set of scales from the desire to prosecute this heinous crime … If criminologists are turned into (police) informers we cannot do our work. We would be left studying only convicted criminals — the failures — and it’s precisely the research we do with unconvicted criminals that is so important.”
Most of Magnotta’s case file is sealed pending his trial for first-degree murder, including the search warrant executed at the law offices of Lex Canada in Toronto on June 22, where police got hold of the interview, three weeks after Magnotta was arrested at an Internet cafĂ© in Berlin.
Magnotta’s Toronto lawyer, Luc Leclair, has declined to comment on why his client is trying to keep the interview out of the public domain. Magnotta often used the pseudonym Jimmy when seeking work as an escort or in pornographic films.
But the two researchers, University of Ottawa criminologists Christine Bruckert and Colette Parent whose work centres on the sex industry, are challenging the search warrant on the basis of “confidentiality privilege.” Like lawyers to clients, doctors to patients, journalists to sources, researchers must be able to promise their subjects strict confidentiality, Lowman argues — and defend that relationship in court.
In dozens of cases in the U.S., researchers have fought subpoenas and the courts have overwhelmingly upheld the confidentiality of their research. In only two cases have scholars gone to jail for contempt of court: Samuel Popkin of Harvard University went to jail for seven days for not divulging the source of the Pentagon Papers and Rik Scarce of Washington State University went to jail for 157 days when he refused to divulge his sources when studying animal rights activists, accused of blowing up a research facility.
But in Canada there has only been one previous case of a researcher being asked by the courts to identify a subject, former SFU criminologist Russell Ogden, who studied people who had assisted in the suicides of persons with AIDS.
When the Vancouver coroner in 1994 subpoenaed him to give evidence at an inquest, he refused. He argued that his research met the Wigmore criteria — a common law test administered to establish privilege: in short, that confidentiality was promised, essential to the relationship, used for a public good, and that breaking that confidence would produce more harm than benefit. The coroner agreed and no charges were brought against Ogden.
This second case, to be argued Aug. 31 in Quebec Superior Court, shows the need for Canada to come up with a framework similar to that of the “confidentiality certificates” granted in the U.S. by the Secretary of Health and Human Services where research on sensitive topics is protected from legal challenge, Lowman said.
Not all research in the U.S. is immune to legal challenge, however, as evidenced by the ongoing case of Boston College’s Belfast Project — an oral history of the Troubles in Northern Ireland based on 26 interviews with Irish Republican and Loyalist paramilitaries gathered between 2001-2006.
The British Government has subpoenaed two of the interviews in particular, and “any and all interviews containing information about the abduction and death of Mrs. Jean McConville” — a woman from Northern Ireland who, in 1972, was abducted and killed by the Provisional IRA. The case is still before the courts, but while senators and congressmen in the U.S. press for the subpoenas to be withdrawn, Irish parliamentarians warn the matter could derail the Northern Ireland peace process.
“When you ask about the horrendous crime against Lin Jun, yes it is,” Lowman said. “But that’s what’s in the other pan on the scales of justice.”

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