The past four months have seen a change in the status of former Saskatoon police officers Ken Munson and Dan Hatchen, from targets of hostility in a city of strained racial relations, to symbols of hope for justice.

An April 12 cover story in the Western Standard ("Rush to Judgment," April 12, 2004) uncovered evidence that had been overlooked in the 2001 conviction of Munson and Hatchen for illegally confining a native man, Darrell Night, in January 2000, when they dropped him off instead of taking him into the police station and charging him with breaching the peace. The revelations were reported by the Saskatoon media, and public pressure is building for the men to be retried, even though they have already served six months in prison and lost their jobs with the police force. Now, the provincial justice minister is recommending ways for the cops to clear their names.

In May, Saskatoon-Wanuskewin Conservative MP Maurice Vellacott wrote a letter to Saskatchewan Justice Minister Frank Quennell, asking that the case be reopened in light of the new information. In a reply dated July 8, Quennell offered several suggestions for Hatchen and Munson. "The very fact that he referred us onward shows there must have been something to the new evidence," Hatchen says.

The evidence--that Night had actually recently lived in an apartment building in which the police testified he'd said he lived, two-and-a-half kilometres from where they said they dropped him off--is the first material evidence to shed light on what transpired in the police vehicle. Without it, jurors were forced to decide if the officers were telling the truth about whether Night had asked to be dropped off, or whether Night was being honest when he said that the officers did not consult him about walking home. The new evidence corroborates the officers' story that Night told them he had lived in an apartment block known as Clancy Village, a roughly 30-minute walk from where Hatchen and Munson dropped Night off.

In his letter, Quennell recommended that the new evidence be reported to the RCMP, which first investigated the case. Inspector Chuck Orem, acting officer in charge of RCMP criminal operations for Saskatchewan, confirms that investigators with the major crime unit are currently determining their course of action.

The justice minister also suggested two routes Munson and Hatchen might pursue in order to obtain a new trial: an appeal through the Supreme Court, which would involve applying for an extension of the expired time limit, or applying to federal justice minister Irwin Cotler to have the new information reviewed by an independent third party from Justice Canada. The federal minister has the power to order a new trial.

Munson and Hatchen say they had wanted to seek relief from the Supreme Court earlier, but could not afford the costs. Now, Vellacott and one of Hatchen's friends have established a legal defence fund, and are turning to the public for help. With just word-of-mouth publicity, the fund raised $1,400 in the first day alone. "People feel there is something amiss about this case, and these two are being scapegoated," says Vellacott.

Even some natives are getting behind the former officers. "They should have another trial because the first one was a joke," says Don Grey of Hillsboro, Oregon. Grey, now 28, was a teenager in Saskatoon when he got in trouble with the law. He says Munson spent many off-duty hours mentoring him. "They put Ken out as racist, but he had a humongous effect on me. To this day I phone and tell him, 'If it weren't for you I'd be in jail or dead of suicide.'"

Chris Axworthy, a law professor at the University of Saskatchewan, who was Saskatchewan's minister of justice at the time of the trial, says he is looking into the matter, "in light of the Supreme Court of Canada decision concerning temporary confinement." On July 23, Supreme Court justices found that it was not unconstitutional for police to temporarily detain individuals without arresting them--as Munson and Hatchen had done with Night. Joyce Milgaard, a representative of the Association in Defence of the Wrongly Convicted, has also stepped forward to help the officers, despite her long-standing criticism of the Saskatoon police force, arising from their misguided pursuit of her son, David Milgaard, and his eventual wrongful conviction in 1970 for murder. She arranged for a lawyer with the association to review transcripts of the Munson/Hatchen case; he has encouraged them to seek further appeals. "The important thing," Milgaard says, "is that there should be justice for all, and that includes police, not only citizens."

Case (NOT) closed

Monday, 20 December 2004
Candis McLean

Q. What time approx. did you last see Neil Stonechild alive on November 24, 1990?
A. Could be about 11:30 p.m.
Q. What condition was Neil in when you last saw him?
A. Pretty drunk. Well totally out of it.
Q. Is there anything else you wish to tell me?
A. No, that's all I can think of.
Q. Is this a true statement?
A. Yes.
--Statement of Jason Roy to Saskatoon Police Service Sergeant Keith Jarvis, Nov. 30, 1990.

The day after 17-year-old Neil Stonechild was found frozen, dead in an industrial park in the north end of Saskatoon, Jason Roy was weeks away from his seventeenth birthday. In his young life, Roy had accumulated a lengthy record of arrests for drug and alcohol use and had been in and out of state custody for years. Roy was arrested again, this November, for public drunkenness. But, as the last person known to have seen Stonechild alive, he would prove to be a vital witness in the 14-month, $2-million inquiry into the young man's death.

In the report from the inquiry, Report of the Commission of Inquiry into Matters Relating to the Death of Neil Stonechild, issued October 26, Justice David Wright would say of Roy: "I had ample opportunity to observe him during his testimony. He struck me as sincere and thoughtful and as still deeply affected by the death of his friend and what followed. While Roy's testimony contained errors and contradictions, this does not prevent me from finding credible his testimony relating to what he observed on the evening of November 24th and the morning of November 25th, 1990." Wright cited an Ontario Court of Appeal ruling, upheld by the Supreme Court, that even when a witness offers "prior inconsistent statements," it is up to the judge to "accept all, some, or none" of the testimony.

But Roy's testimony at the Stonechild inquiry differed so dramatically from the account that he gave police the day after his friend was discovered dead, it has caused many to ask why Justice Wright considered any of it to be legitimate. Why would the judge trust Roy's version of events over two officers that retired police chaplain Rick Lane calls "two of the cleanest people in lifestyle and attitudes I've ever had the privilege of working with"?

Roy was the only one to tell the inquiry he witnessed contact between police and Stonechild that night. Saskatoon Police Services (SPS) constables Larry Hartwig and Bradley Senger claimed that, while they had been dispatched to find Neil Stonechild that night, as he had been reported to be causing a disturbance at the Snowberry Downs apartment complex, they never did manage to find him. But the judge went with Roy's version, refusing to believe the cops' account. The evidence, wrote Wright, indicated: "a) that Neil Stonechild was last seen in their custody at approximately 11:56 p.m. on November 24, 1990; b) that he died of cold exposure in a remote industrial area in the early hours of November 25, 1990; and c) that there were injuries and marks on his body that were consistent with handcuffs."

On Nov. 12, 2004, as a result of the findings, the suspicion and accusations that had dogged Hartwig and Senger for years culminated in their firing, by Saskatoon Police Chief Russell Sabo. The force veterans, with more than 30 years of service between them, were "unsuitable for police service by reason of their conduct," Sabo told reporters in announcing his decision, citing their failure to "diligently and promptly report" information or evidence to officials about Stonechild being in their custody.

But fellow police officers are crying foul. So are many Saskatchewan residents who quietly echo the opinion of retired Saskatoon constable Larry Lockwood, who demonstrated in front of the police station after the release of the report, with signs reading: "No justice for Hartwig and Senger," "Judicial McCarthyism at its worst" and "Appeasement is only temporary." In confidence, Saskatoon cops admit that, in addition to the empathy they have for their colleagues, they have become fearful that they, too, could just as easily be brought down by the testimony of someone like Roy, someone with a lengthy criminal record, a history of substance abuse and a testimony full of contradictions and fabrications. One native man, who spends his time on the streets and knew Stonechild, but asked not to be identified, says it's easy to blame police for things because "they can't fight back." Hartwig says that, far from finding the truth, the inquiry made him and his partner into targets. "We expected to be vindicated through the provincial inquiry," says Hartwig. "However, not all of the evidence was disclosed."

"We went and hung around circle park mall till around 6:30 & niel said lets go to my moms and get some money from his mom so went over there and niels mom wasn't home so I sold my goves [gloves] to [Stonechild's brother] Marcelle and he went & bought us a 40 ounce of Silent Sam [vodka]. we [went] over to juli's and drank the hole bottle straight just me & Neil. we were just sitting around talking about whatever and he said lets go find Lucille [an old girlfriend], so we started on our way to Snowberry Downs [apartment complex]. I don't remember how we got to seven-11. we stopped there and tried buying something but I don't remember if they sold me anything; we started walking over there and stopped on the boulevard and we were arguing but I don't [know]what about. and we got to one apartment, looked for Lucille's sister but it wasn't there so we checked other apartments for the last name Neetz. but we couldn't find it any where so we got to the last apartment and we were about to check it then I must have stopped him and we stood there and argued for what I don't [know] and he turned around and said f----in Jay and I looked around and blacked out and woke up at juli binnings."
--Jason Roy's Nov. 30, 1990, handwritten statement to police, detailing the events of the night he last saw Neil Stonechild alive.

The day after Stonechild's body was found, Roy gave that handwritten statement to police concerning what had happened the evening he last saw his young friend alive. In it, he said he had argued with Stonechild at the Snowberry Downs apartment complex, while the two of them, both drunk, were trying to locate a friend. Then, he said, the two went their separate ways. Apartment residents had called police to report two drunken men hitting buzzers at random and creating a disturbance. The two officers that were dispatched were Hartwig and Senger. The computer log of the two officers' activity that night establishes that they went to Snowberry Downs and, once there, entered three names into the police database: Neil Stonechild, Tracy Lee Horse and Bruce Genaille.

The two officers insist that while they called up Stonechild's sheet on their in-vehicle computer terminal after receiving the call in order to get a physical description, they were ultimately unable to locate him. They ran into a man who told them he was Horse and another man, Genaille. They stopped to question both, believing they might be the young man they were looking for. Roy told the inquiry that he was the one pretending to be Horse, fearful of giving his real name to police, given the fact that there was a warrant out for his arrest for breaching a condition of his release from custody. But in his statement to police the next day, he mentioned neither that confrontation, nor having seen his friend in the back of a squad car, bleeding and fearful.

If it hadn't been for one officer, Constable Ernie Louttit, who had taken a personal interest in the Stonechild case, and had taken the file home and, ultimately, forgotten about it, Roy's initial statement to police--and the vast contradictions between it and his testimony years later--would never have been known.

SPS Sergeant Keith Jarvis had been questioning Roy as part of his own investigation into the mysterious death of the handsome and popular Cree teen. By all accounts--including the Police Associa-tion's--that investigation was inadequate. The provincial coroner, who also had the ability to call an inquest, chose not to. Because there was no evidence of foul play, the police file was destroyed sometime, years later, in one of the police force's regular purges of old files.

Over the next 10 years, five native men turned up dead, frozen, in remote parts of the city. In 2000, when Darryl Night, a Cree Indian, came forward claiming that he had been dropped off near the city limits by two police constables, Dan Hatchen and Ken Munson, public outrage over accusations that cops might be abandoning natives in the cold, led the province to order the RCMP to investigate the spate of freezing deaths. But that effort was unable to solve the mystery behind Stonechild's death. It wasn't until the RCMP investigation in 2000 that records show that Roy started telling authorities about a police car.

Q. It [your statement to Saskatoon police] goes on to say, "We stopped there [at 7-Eleven] and tried buying something." Now, did that happen or not?
A. No.
Q. Any reason why you made that up?
A. We had no money.
Q. Yeah, but why would you lie to the police about that?
A. I don't know.
--Jason Roy's testimony, under cross-examination by Saskatoon City Police Association lawyer Drew Plaxton at the Stonechild Inquiry.

In February 2003, then Saskatchewan minister of justice Eric Cline established a judicial commission, headed by Wright, to inquire into Stonechild's death and the investigations carried out by the SPS and RCMP. The inquiry was thorough, with more than 60 witnesses called in total. But, the most critical testimony, perhaps, was that of Roy.

Even now, Roy's stories are rife with inconsistencies. As Aaron Fox, Hartwig's lawyer, argued in his final submission, a friend of the two boys, Cheryl Antoine, who had been at Julie Binning's residence when Roy returned there in the early morning hours of Nov. 25, 1990, testified that Roy said he "thought" he may have seen Neil in the back of a police car, but did not mention any injuries. To Antoine's knowledge, when Stonechild's mother, Stella Bignell, contacted Roy after her son's disappearance, Roy didn't tell her that he had seen Stonechild in the back of a police car, nor did Antoine.

Binning recalls Roy saying, upon his return to her home without Stonechild, simply that "he had lost Neil. He had--he just lost Neil on the way back." When they asked him how, she recalls Roy saying, "He might have been picked up by the police." They all stayed up a few more hours playing cards, she says, but Roy seemed not at all upset. He also admitted to Binning that night that he was really drunk and wasn't sure about what happened. After his friend's body was found, he told the inquiry that he never told the family about the police car out of respect for their grieving, and when he called police to report that he had been with Stonechild the night of his death, he again failed to mention anything about it.

Genaille, who was, according to computer logs, stopped by Hartwig and Senger after they were dispatched to find Stonechild, told the inquiry that he remembered the two officers asking him if he was Stonechild (in fact, he happens to be his cousin). They asked Genaille about a disturbance at a 7-Eleven store, not Snowberry Downs, he says. He waited five to 10 minutes while the cops ran his name through the computer, and he saw no one was in the back seat.

At the inquiry, however, Roy said he was certain he saw Stonechild in the back seat and that he had been "freaking out." He told RCMP investigators before that, that he had been "scared s--tless" by the sight. As Fox argued, "The statements attributed to Roy, his demeanour and conduct are all inconsistent with his having seen Neil in the back of a police car, bleeding and screaming for his life."

So how is it that, rather than deteriorating over the course of more than a decade, the recollection of a man who has been in substance-abuse treatment several times during that period has actually improved over time? He had help.

A year after the investigation by the Saskatoon police, Roy was put under hypnosis to help him recall what had happened the night he last saw Stonechild. Therapist Brenda Valiaho conducted a "visualization exercise" with Roy, and it was in that session, for the first time, that Roy remembered seeing Stonechild in the back of the police car. Memory experts Dr. John Yuille and Dr. Jim Arnold testified at the inquiry, however, that these kinds of recovered memories are frequently unreliable, as people's recollections are altered by beliefs, assumptions and outside pressures. That can eventually lead to a belief in a certain set of facts that, although honestly held, is not accurate. In other words, after the hypnosis, the subject himself may be convinced that something happened even when it did not. (Psychological studies show it isn't hard to implant false memories. In 2002, when two snipers were shooting people around the Washington, D.C., area, dozens of witnesses recalled seeing a white van. The snipers, it later turned out, were driving a dark sedan. Psychologists say the false memories were inadvertently planted by police during witness questioning.)

Q. "I looked around and blacked out, and woke up at Julie Binning's." That's what you told the police, right?
A. Yes.
Q. And there's nothing-you didn't see Neil anywhere in that statement. You last saw him at Snowberry Downs looking for his old girlfriend; right?
A. Yes.
Q. You told the police you passed out and woke up the next morning at Binnings'; right?
A. At this--at this--on this statement, yes, that's what I said.
Q. Okay, now, is that accurate or not?
A. No.
Q. Why did you lie to the police about that?
A. I was scared.
--Jason Roy, under cross-examination by Saskatoon City Police Association lawyer Drew Plaxton at the Stonechild Inquiry.

When RCMP officers asked Roy why he had not reported the police car following the death of his friend, he claimed he had told SPS about it, though his written statement indicates that to be untrue. Then, at the inquiry, Roy changed his story again, claiming he had been afraid to implicate police because, at the time of the death, he too had been on the run from a community home. Upon being questioned by Fox, Roy could not name the facility he was allegedly missing from, and there is no record of Roy being in any community home in the fall of 1990.

After Roy began recounting the story of the police car, he provided several friends a detailed description of the driver of the police car, describing him as well over six feet tall, with a moustache, curly hair and pop-bottle glasses. Commission counsel confirmed Roy's description of the officers with him in advance of the inquiry. Hartwig or Senger are both about five feet eight inches, have never worn moustaches, and neither wear glasses nor contacts. Once his testimony at the inquiry began, Roy changed his story and said he could not recall a physical description of the driver of the police car.

How credible was Roy's testimony, given the pattern of inconsistencies, errors and lies? Wright concludes that the cause of so much deceit can only have been caused by one thing: a hesitation to point the finger at the police force. "When called upon to provide a written statement of the events, [Roy] stopped short of implicating the Saskatoon Police Service," wrote Wright in the report on the inquiry. "His statement that he 'blacked out' was a convenient excuse not to reduce to writing the most important events of that night. Whether his decision was prompted by fear or an unwillingness to be involved any further with the police, matters not." The possibility that Roy's wildly varied accounts may have been because he was unsure of what he saw that night, or had imagined things, or lied, did not seem, to Wright, to be a possibility. "What is central to this whole question . . . is the plain proposition that [Roy] told the investigating [RCMP] officer the whole story," the judge wrote, adding that it was a proposition "supported by other evidence."

As I reviewed the evidence in this Inquiry, I was reminded, again and again, of the chasm that separates aboriginal and non-aboriginal people in this city and province. Our two communities do not know each other and do not seem to want to.
--Final Comments of Justice David Wright, report on the Stonechild Inquiry.

If one police officer was the exception to the cultural gap between aboriginals and non-aboriginals, says Melvin McGhee, an aboriginal social worker, it was Larry Hartwig. "Larry's firing was a great loss to the aboriginal community; he was an ally," he says. McGhee has dedicated his career to helping rehabilitate troubled youth, reintegrating them into society. Once, when McGhee himself was charged after assaulting a non-aboriginal, he says he was fearful his career was over. But Hartwig, he says, "saw beyond the fact that I'm a 280-pound aboriginal ex-wrestler and got to the facts. He was nothing but respectful, with a great knowledge of the First Nations' culture."

For most of his 17 years on the force, Hartwig worked the west side of Saskatoon, with its large native population, and every year worked on an anonymous charity bringing food to the poor. "It's good for a cop who so often sees the tragic side of life to have a little kid pull on your pant leg and say, 'Mister, are you an angel?'" says Hartwig.

On the night of November 24, Hartwig and Senger, who used to be a psychiatric nurse, were paired together for the first time. Off the record, many cops say that if they were going to do anything unorthodox--let alone commit murder--they would ensure they had a partner they were certain they could trust, not one they had been with for just a few hours.

McGhee says that if anything is to blame for rising tensions between police and natives, it's the unfair portrayals of Hartwig and Senger perpetuated by the Saskatoon media and reaffirmed by the inquiry. "I believe with all my heart that Larry and Brad have been hung out to dry," he says. "They were scapegoats for this tragedy. The justice system should stand beside them and find the facts; instead they are breaking down the bridges between the aboriginal and police communities that were starting to build."

Pat Pickard describes herself as the "last straight--as opposed to street--person to talk to Neil" the night he went missing. Pickard ran a group home, from which Stonechild was missing. He called her on Nov. 24, 1990, just before he went out drinking with friends, to assure her he would be back the next day to turn himself in. She tried to convince him to come back immediately, but he refused. Pickard says she believes Roy's testimony about the squad car. But, she adds, although she was frustrated by the testimony of many police officers at the inquiry, many of whom said they could not remember much about that night 14 years ago and had lost their notes, she does not think that there is enough evidence to support the claim that Hartwig and Senger were involved in Stonechild's death. "There was no concrete evidence that they dumped him--no DNA, no one except Jason [Roy] saying he was in the car, and he couldn't even identify the cops," she says. The officers' car was never checked for blood, but coroners found no evidence of any blood on Stonechild's clothing. "One side of my brain says we're finally doing something about the rotten apples on the police force, but the other side says that if it had been two native people [accused of this] instead of police, there would be a big outcry for proof," says Pickard. "I'd like to say, 'Hurray, they're guilty, do something with them,' [but] we need to be very sure that we bring the right people to justice."

After the horrific discovery of Stonechild, an acquaintance of his paid a visit to his mother, Stella Bignell. Rumours had been swirling around the native community that the man responsible for her son's death was that man, Gary Pratt. Pratt had come to assure Bignell that the rumours weren't true and that he had nothing to do with her son freezing to death. But even today, word on the street is that a feud between Stonechild and the Pratt family had been simmering since September 1990, two months before Stonechild's disappearance.

Stonechild had been at a party, at which Pratt got into a terrible melee with several others. At the time, Pratt was at large from recognizance related to a charge of assault on his mother. The party's host, Eddie Rushton, had, according to Pratt, shot at him, and he fled.

Q. And can you tell us what took place, then, when you returned?
A. When we returned we had went through the back door and at the back door there was an axe and Randy Lafond had grabbed the axe and as we went in the back door Eddie--deceased Eddie Rushton and Pat Caisse were coming up from the root cellar where the guns were and Randy chopped-well, hit Eddie in the head with the axe and knocked him into the basement again and they went down there and, I don't know, it was just total chaos and mayhem and--
Q. Was Neil still at the house at that time?
A. Yes, he was.
--Gary Pratt, under cross-examination by Saskatoon City Police Association lawyer Drew Plaxton at the Stonechild Inquiry

After Pratt and his gang returned and had beaten up Rushton, Pratt's brother, Errol, threatened aloud anyone who would consider reporting the incident to police. Gary Pratt testified that he heard his brother shout something along the lines of: "You don't see anything here or you don't know anything, or you don't tell anything to anyone or you're dead."

In the fall of 1990, Stonechild and another man at the party, Pat Caisse, were in fact compelled to attend court to testify against Gary Pratt. In the end, their testimony was not needed: after several other witnesses refused to testify, the Crown stayed the charges.

Justice Wright notes in his report on the inquiry that there were no witnesses to put Pratt and Stonechild together on the night of Nov. 24, 1990, and there was no evidence that Stonechild was beaten up. But a friend of Stonechild's older brother Marcel, told the Western Standard that the "street word" at the time was that either Pratt or associates of his had taken Stonechild out to the industrial area. Instead of beating him, they left him in the middle of nowhere, in -28øC weather, where he died. "The people on the street, they know, they see everything," says the source, a 34-year-old native man who asked not to be identified. "Even today, if you go on the street, you'll find half the guys say Gary Pratt did it, but nobody wants to rat to the police. It's like an oath."

After the body was found, continues the source, "the whole Pratt family disappeared; they used to be big mall rats." Several of Saskatoon's large native families, says the source, were convinced of Pratt's involvement and were planning to "go after" the Pratt family, he says. But Bignell stopped them, fearing a "big family war."

Retired SPS officer Lockwood reports that a few months after the brawl at the party, Eddie Rushton died under suspicious circumstances, of an allegedly "self-inflicted gunshot wound to the head," after friends say they had been playing Russian Roulette with him. Errol Pratt was murdered with a baseball bat by a member of one of the family. But the violence between Saskatoon's big native families goes a long way back. Several members of the larger clans had clashed in the mid-eighties in a battle for control of Saskatoon's prostitution racket, says Lockwood, what police call the "hooker wars" of 1985. Things got very violent, says Lockwood, and members of the Stonechilds and the Pratts were alleged to have been involved. "Two factions got into a turf war over prostitution territories," says Lockwood. "There was a big shootout at Baldwin Hotel, windows shot out of houses, and we had to detonate two bombs in the city planted next to houses associated with members of different prostitution rings." Lockwood says that, in his opinion as a street officer of 27 years, "if Stonechild's death was a murder-and I'm not convinced it was--I would look for connections going back to the family feuding of the hooker wars."

Louttit testified at the inquiry that a few days after Stonechild's body was found, his brother, Jason, told him that Neil had been killed by brothers Gary and Danny Pratt, "that he'd been picked up at a party when he was very drunk in the north end, somewhere up by the 7-Eleven, and that he'd been beaten up and then--and dumped off," Louttit recounted. Reading from his notes made at the time, the officer told the inquiry, "Neil was with an unknown female, or unidentified female, first name starts with 'F,' she witnessed Neil get in the [Pratt's] car, very loaded." Asked if he had received any information in 1990 or 1991 that Stonechild had been in a city police car on the night that he disappeared, Louttit replied that if he had, he would have pursued the matter to get to the bottom of it. "I have no problem arresting a police officer that's taken part in a crime," he told the inquiry.

For her part, Bignell denies the allegation that she stopped a "war between families," and says that Pratt and her son were friends who "had their differences," but they had been resolved. And while her lawyer, Donald Worme, told reporters that Bignell was pleased that police chief Sabo had fired Hartwig and Senger, Bignell says that's actually not how she feels. Bignell says that she is not happy with the outcome of the inquiry at all. She refuses to make the leap from Roy's fragmented recollection of seeing her son in a police car, to assuming that Hartwig and Senger must be responsible for his death. "I wanted the inquiry to find out who took my son out there," she says. "And yet after all this time, we still do not know. Justice was not served."

TAKING FORENSICS 'OUT OF THE REALM OF SCIENCE' AND MAKING IT 'CHILD'S PLAY'

Gary Robertson, the photogrammetrist, was hired to measure marks that were apparent in the post-mortem photographs of Stonechild's body and, later, to compare these measurements to the measurements of handcuffs used by the Saskatoon Police Service in 1990. As a result of the investigation, the RCMP identified two suspects: Cst. Lawrence Hartwig and Cst. Brad Senger.
-- Justice David Wright, Final report of the Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild

After reviewing the evidence before him, Justice David Wright admits that only constables Larry Hartwig and Bradley Senger know what was in their minds on the night of Nov. 24, 1990. But, to him, the evidence established that three things had likely happened: that Neil Stonechild was last seen in the two officers' custody, close to midnight on November 24; that he died of cold exposure; and that the marks on his body looked like he had been restrained, and hit, with handcuffs.

Wright had only the erratic testimony of Jason Roy to indicate that Stonechild had been in the custody of the cops. And on close review, forensic experts say that the evidence suggesting that Stonechild had been hurt by handcuffs is just as unreliable.

A widely publicized post-mortem photo of Stonechild, featuring two lines across the bridge of his nose, certainly seems to suggest the 17-year-old native may have been whacked in the face by a pair of police-issue Peerless cuffs. The photo was presented to the inquiry with a pair of handcuffs digitally superimposed over Stonechild's face to help illustrate the consistency of the marks with the structure of the cuffs.

"The old Chinese proverb, 'a photo is worth 1,000 words,' or whatever it is, is actually false," the man behind that photo, RCMP expert and Calgary photogrammetrist Gary Robertson, told the inquiry during his testimony. "If you don't have any known dimensions in a photograph . . . I always say it's worth a million lies." (Photogrammetry is the science of taking measurements from photographs to make maps of landmasses).

Sage wisdom, says Dr. Emma Lew, deputy chief medical examiner and director of forensic pathology services in Miami-Dade county, Fla. And Robertson's own photo is a case in point. "In my career, I don't know any of my colleagues who have used a photogrammetric analyst to evaluate lesions on bodies," says Lew. She received her medical training at the University of Saskatchewan and studied four years of pathology and one year subspecialty training in a forensic pathology fellowship program. Lew, who estimates she has analyzed more than 5,000 human bodies in her career, believes that Robertson's handcuff theory was an irresponsible leap. "I'm speculating that Robertson said, 'Oh these two patterns look like handcuffs--they're parallel, linear, and look about the same distance--therefore they must have been made from handcuffs.'"

Robertson admitted, upon cross-examination by Police Association lawyer Drew Plaxton, that he had not properly indicated the correct scale of the cuffs to the marks on Stonechild's nose, even though the scale of photo of the cuffs imposed over Stonechild's face would fundamentally impact how accurately the two rails of the handcuffs would match the marks on the nose. At the same time, Robertson also confessed in the Oct. 20, 2003, questioning that he had lied on his resum‚ and he had not actually completed a course in photogrammetry, but rather had a diploma as a mapmaker's technician and that he had lied about completing any engineering courses at university. Robertson said he had never actually analyzed human skin before--only pigs. His work until the Stonechild case had been limited to measuring distances between things like cars and buildings. Plaxton also asked Robertson if he had used photo manipulation to delete part of the handcuff so it would match the injury more closely. Robertson admitted that he had digitally cut away part of the handcuff to achieve the photographic result.

Lew's analysis of the marks on Stonechild's hands led to her conclusion that they were definitely not made by handcuffs either, but by the cuffs of his jacket pulled over his hands to keep them warm (Stonechild was found with his sleeves pulled over his hands). The weight of his body on his hands underneath him impressed the fabric into his skin, much as sleeping imprints pyjama fabric. Dr. Valerie Rao, the chief medical examiner for the city of Columbia, Missouri, agrees that the wrist marks were not handcuffs. "I've been a forensic pathologist for 25 years. I have done many, many cases with handcuff imprints, I have analyzed living and deceased people who have handcuff marks, and Stonechild didn't have anything that resembled a handcuff."

Simplistic assumptions about what an injury on a body looks like, says Lew, ignore facts about what happens to corpses in the hours and days after death. "There would be grave miscarriages of justice all over the place if laypeople were able to pronounce that certain wounds were made in a certain way, simply because they look like it, without consideration of post-mortem artifacts, including drying of the tissues," Lew says. Such uninformed speculation has taken the "process out of the realm of science and simplified it into child's play." she says.

In July 2000, Jason Roy told the CBC that he witnessed Stonechild "in the back of the police car with his face cut open, bleeding." But Lew says that the cuts on Stonechild's nose were probably fairly superficial at the time of the injury, but had stretched and blackened as the young man's body froze and thawed and the tissue dried. Examining high-resolution enhanced photos of Stonechild's body, pathologists deduced that the marks were likely the result of walking through high bush in a nearby ravine or collapsing onto the densely packed ice and frozen twigs and weeds. The lack of blood on Stonechild's clothing also suggests that the wounds were minor.

But, Lew acknowledges, relying on medical science alone may not have been of much use to the inquiry. "I understand that there are other factors and other agendas involved here," she says.
--Candis McLean