SPECIAL PROSECUTOR RELIED UPON DISCREDITED EXPERT IN MICHAEL BRYANT CASE



CALL FOR EXPERT ANALYSIS REPORTS TO BE RELEASED

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When special prosecutor Richard Peck withdrew all charges against former Ontario Attorney General, Michael Bryant resulting from Bryant’s killing of Darcy Allan Sheppard, he failed to warn the court and the public about the credibility and bias of the prime video expert in the case.

Peck based his decision in large part due to the analysis of former Vancouver police officer Grant Fredericks whose work has been scathingly discredited as flawed, and biased in favour of law enforcement officials.

Grant Fredericks was a Vancouver police officer from 1988 until 2000. He is now an instructor at the FBI National Academy, an advisor to the International Association of Chiefs of Police, and a principal instructor for the non-profit Law Enforcement and Emergency Services Video Association (LEVA).

Fredericks’ work has come under fire on both sides of the border as it has been repeatedly discredited. In the case of the death of Robert Dziekanski at the hands of the RCMP, Richard Peck acted as the special prosecutor. The Dziekanski case resulted in the dismissal of [Fredericks’] expert testimony and raised questions about “his cozy relationship with the Vancouver police.”

In a United States case involving the death of Otto Zehm, also at the hands of the police, the Justice Department argued that Fredericks offered his services to police and came to his conclusions before he finished analyzing the video of the incident.

The Center for Justice in Spokane, Washington reported:

“The gist of the Justice Department’s rebuttal is that Fredericks has a long record of bias in favor of embattled police officers and police departments, and that he regularly shapes his expert testimony accordingly.”

These shocking revelations raise credibility and bias issues surrounding the expert video evidence in the case against Michael Bryant. They create a perception of conflict of interest and special treatment for the former chief administrator of the justice system in the province.

ROBERT DZIEKANSKI

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Fredericks testified as the video expert for the RCMP during the Braidwood Inquiry into Robert Dziekanski’s death as a result of RCMP officers employing five Taser shocks upon Dziekanski.  Fredericks claimed that his video analysis showed that Dziekanski was aggressive toward the officers and that he  took “three distinct steps forward towards” an RCMP officer.

His analysis supported the RCMP’s claim that Dziekanski‘s behaviour was aggressive and threatening. The RCMP claimed Dziekanski picked up a stapler and he stepped toward them, justifying the Taser shocks used against him.

However the lawyer representing the Polish government, Don Rosenbloom, brought in two experts to dismiss Fredericks’ flawed methodology and analysis. Rosenbloom also pointed out that TASER International was a “featured sponsor” of a LEVA training conference.

In his final report, Thomas Braidwood, a retired B.C. Court of Appeal justice, completely dismissed Frederick’s analysis.  Braidwood wrote “I am not prepared to rely on Mr. Fredericks’ analysis for two reasons.”  Braidwood cited the reasons as Fredericks’ “verification methodology was flawed” and “he has no special expertise in determining steps from shoulder movements”.

Braidwood went on to conclude:

“Mr. Fredericks agreed that his opinion about forward movement is based only on his observation of the stabilized video. Because of the counter, he could not see Mr. Dziekanski’s legs or feet, and he has no special expertise in biomechanics or the study of human motion.”

And

“In the absence of such expertise, his opinion deserves no greater weight than the opinion of any other careful observer. I have watched this segment of the Pritchard video many dozens of times, and I have been unable to detect the three methodical step movements Mr. Fredericks described. Even if I am wrong and Mr. Dziekanski did take three distinct steps forward, Mr. Fredericks’ opinion is of questionable significance, since he repeatedly refused to estimate distance, even a distance as small as one inch.”

 

OTTO ZEHM

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Fredericks also did a video analysis in the death of Otto Zehm. Zehm was a janitor who died from injuries he received at the hands of Spokane police officer, Karl F. Thompson Jr. in a convenience store. According to an article in the Spokane Spokesman-Review, Fredericks was “accused of whitewashing the infamous Otto Zehm videos.”

In the Zehm case Federal prosecutors alleged that Fredericks essentially helped to construct the false narrative the police department promoted that Zehm was using a 2-liter bottle of pop as a weapon. Fredericks’ analysis denied the existence of baton strikes that were clearly visible to the naked eye.

According to the Spokane Spokesman-Review:

Federal filings from 2012 argue that Fredericks came to that conclusion rather quickly, calling police unsolicited after he saw excerpts of the videos in the media to offer his opinion that Zehm had weaponized the pop bottle. Fredericks was hired – in a joint sort of way by the department and by the city’s risk management division – to review the videotapes, and he was reassuring the police department before he even finished his review.”

“Prosecutors offered a scathing assessment of his work and credibility in response, accusing him of lying to them, painting a picture of him as biased in favor of the police even before he’d seen any evidence, and accused him of a “patent history of inaccurate representations and inconsistent statements.”

 

TAMIR RICE

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Fredericks prepared a report based on video enhancement and analysis of the video that captured Cleveland police officer Timothy Loehmann’s shooting and killing of 12 year old Tamir Rice only moments after arriving at the scene.

Media reports noted that Fredericks’ report didn’t “include any new or substantive information about the shooting, but a handful of frames include text overlays that explain what is taking place.”

Vice reported that Fredericks’ report “quickly drew criticism because some of the comments added to the frames could be interpreted as supporting police claims that Loehmann was justified in shooting Rice.”

Local reports noted criticism by lawyers representing the family of the child:

“The frames contain editorial comments that attempt to make excuses for the officers,” Chandra wrote. “Tamir, for example, may be lifting his arm in shocked reaction to being shot. The effort to characterize the evidence is hardly fair play and is one of many reasons the Rice family and clergy throughout Cleveland lack confidence in the prosecutor’s fairness in this matter.”

Ultimately the Grand Jury refused to indict Loehmann but the city of Cleveland agreed to pay Tamir Rice’s family $6 million to settle a federal lawsuit filed over the boy’s death. It was the largest amount the city had ever paid in a police shooting death.

 

PASKALIDIS V.CAPRICE HOSPITALITY INC., 2011 BCSC 1699

In this case Fredericks worked for the defendant who was accused of breaking the plaintiff’s jaw. Fredericks tried to use the video to say there was no contact between the two and therefore it could not be determined if the defendant is the one who broke the plaintiff’s jaw.

Justice Ehrcke noted that “Mr. Fredericks’ evidence was helpful in so far as he explained some of the technical aspects of the security video footage. “

However Ehrcke did not rely upon any of Fredericks’ opinions. “The part of his evidence that I did not find helpful was his opinions about what is depicted in the videos.”

“In my view, his expertise did not put him in a significantly better position to interpret what is shown in the videos than any other careful observer.”

Ehrcke referred to Fredericks’ opinion as “unfounded” because it often conflicted with evidence from eyewitnesses and what Ehrcke saw in the videos himself.

 “Overall, I find that Mr. Fredericks’ opinion evidence about what he thinks he sees in the videos is largely unfounded and unhelpful. I place little weight on it, particularly when it conflicts with the testimony of witnesses who were present at the time of the events in question.”

“Again, I find that Mr. Fredericks’ opinion evidence about what he thinks he can or cannot see on the videos is of little assistance in determining whether Mr. Paskalidis was struck, and if so, by whom.”

 

DARCY ALLAN SHEPPARD

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Michael Bryant’s killing of Darcy Allan Sheppard is one of the most famous cases in Canadian history. Bryant’s defence attorney, Marie Henein said “I was informed that the Bryant case had generated more national media stories than any other criminal case before it.” Video of the incident was on YouTube shortly after Bryant killed Sheppard.

It’s not known if Grant Fredericks volunteered his services to Marie Henein as he did in the case of Otto Zehm or if she sought out Fredericks’ services herself.  There are many forensic video experts in Ontario but Henein chose Fredericks who was all the way across the continent in Spokane, Washington.

Henein knew the video was a key piece of evidence against Bryant. In her essay “Split Seconds Matter”[i] (from Tough Crimes: True Cases by Top Canadian Criminal Lawyers) she said “although at first blush it was troubling, the video surveillance would become the most critical piece of evidence for the defence.”

Henein claimed she “chose an analyst who was routinely retained by the prosecution” but she failed to explain that in cases where the defendants were members of law enforcement Fredericks most often worked to exonerate the defendant.

In “Spilt Seconds Matter”, Henein also drew attention to the practice of buying experts:

 “From the point of view of both the prosecution or the defence, there is no value to simply hearing what one wants to hear. Buying experts doesn’t buy you a whole lot; it certainly would not have achieved the result we set out to achieve.”

Henein praised Fredericks’ work as he produced exactly what she needed. “The results of the analysis were powerful, debunking many stories that had been floating around. It refuted eyewitness evidence – evidence that any experienced counsel will tell you has, notoriously and scientifically, often proven to be unreliable.”

In fact Fredericks’ analysis was so important Michael Bryant referred to it as the “linchpin” of the defence’s case. In his memoir of the incident, “28 Seconds”, he wrote “when it came to getting charges dropped, obtaining watertight expert evidence was the linchpin. “

He explained further that “the seminal expert was the video expert. He took what the police had provided–all those videos of shadows and figures and the Saab and its headlights–and made sense of it. He was able to break down the event to 1/100 of a second.”

In “28 Seconds”, Bryant also seems to concede that the expert analysis was fashioned around his account of what happened.

“The forensic evidence required a back-and-forth between lawyer and expert, and lawyer and client, to ensure that the expert evidence matched my imperfect sense of what happened.”

 

Fredericks’ analysis is controversial in Bryant’s case because he seemed to see things that contradicted eyewitnesses or that eyewitnesses missed, such as the possibility of Bryant’s car stalling multiple times, as Bryant claimed, and that a swing by Sheppard at Bryant could have been missed by the video, even though the video showed no swing.

The most troubling aspect of Fredericks’ choice as the “seminal expert” is that Richard Peck was also the special prosecutor in the Dziekanski case.  Fredericks testified and his testimony was discredited on May 25, 2009, exactly one full year before Peck withdrew charges against Bryant yet Peck relied upon Fredericks’ analysis in the Bryant case, even when it contradicted eyewitness statements and what most people saw when they watched the video.

In Jennifer Wells’ e-book, “Lost Boy: The death of Darcy Allan Sheppard “, Peck’s agent in Ontario, Mark Sandler acknowledged that the prosecution was aware of Fredericks’ involvement in the Dziekanski case,

 “A frame-by-frame breakdown of the video was commissioned by the defence, which retained, Sandler says, the same video expert who testified at the commission of inquiry into the Tasering death of Robert Dziekanski at Vancouver Airport in 2007. Richard Peck was the special prosecutor in that case. According to Sandler, Bryant’s defence team “made that person available” for an interview. The interview was conducted by Peck.”

The Ontario Ministry of the Attorney General has hidden away all of the expert evidence surrounding the video of Bryant killing Sheppard. It has claimed “solicitor-client privilege” in denying Sheppard’s father access to any files. The shocking revelations surrounding the credibility of the most important expert in the case raises serious questions about the investigation and the decision to withdraw charges.  How could the special prosecutor rely upon a defence expert who often works to exonerate law enforcement officials and whose work has been discredited for employing flawed methodology?

One of the fundamentals of the Canadian justice system is that “not only must Justice be done; it must also be seen to be done.” The simple appearance of bias is sufficient to overturn a judicial decision. Michael Bryant’s case creates an appearance that the system works differently for a former attorney general. It creates an appearance that the justice system was and can be manipulated. The perception of bias and the interest of the citizens of Ontario require transparency in this case. All of the expert evidence must be released and independently evaluated.

Surveillance video of Michael Bryant’s killing of Darcy Allan Sheppard

 

Police Video of eyewitness in death of Darcy Allan Sheppard

 

[i] Marie Henein. “Split-Seconds Matter.” Tough Crimes: True Cases by Top Canadian Lawyers. Eds.

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