Any day now, perhaps in the next week or so, we can expect to hear from the Vancouver Police Department regarding forthcoming criminal charges stemming from the Stanley Cup riot last June 15.
The department, especially police Chief Jim Chu, has come under much criticism from the citizenry and media pundits for taking so long to lay charges against those who allegedly committed criminal acts while participating in the destruction that afternoon and evening.
But have the police handed a potential get-out-of-jail-free card to future defendants because of their choice of “expert” to analyze the evidence to be used to lay charges?
Police Insp. Les Yeo, who is in charge of the integrated riot-investigation team, announced at a September 28 news conference that 40 charges were “on track” to be delivered within a month to Crown counsel for approval.
Yeo said then that police expect that another 500 to 700 charges are expected to be laid after police finished reviewing 1,600 hours of video evidence and upwards of one million still photographs being analyzed in Indianapolis. That analysis was originally scheduled to be completed by about October 9.
At the time, Yeo said that police had arrested 83 people in connection with the riot.
With the issuance of “production orders”, or warrants, to multiple media outlets in Vancouver in order to obtain further video footage and still photographs, announced in late September as well, police obviously hope to further increase the 500-to-700 criminal-charges target number.
That is a staggeringly high number, especially given that the provincial government–commissioned review of the riot—conducted by John Furlong and Douglas Keefe and released on September 1—blamed the destruction on a core group of 1,000 “troublemakers”. Police previously said four dozen investigators were looking at evidence implicating 1,123 suspects.
The police are, obviously, pinning their hopes for the future success of those charges on the reliability of the photographic evidence available, mostly video, with all of it being assessed at a lab located on the campus of the University of Indianapolis.
But is their choice of an expert analyst going to derail some, or many, of the charges if those facing prosecution, and the permanent stigma of a criminal record, decide to contest their prosecutions by hiring a lawyer and challenging the evidence that, in the possible absence of credible eyewitnesses, is almost the sole basis for the charge in the first place?
And will scathing criticism of that same expert’s video-analysis testimony in an internationally publicized commission of inquiry—and his being caught in an embarrassing denial during cross-examination in that same inquiry—come back to haunt them in terms of his credibility?
The expert in question is Grant Fredericks. Coincidentally, or maybe not, he is a former Vancouver police officer now living in the U.S. and making a living as an instructor in video analysis and an “expert witness” in criminal trials.
Fredericks obtained a bachelor’s degree in broadcast communications in 1982 from Gonzaga University in Spokane, Washington, before moving to Vancouver, where he became a reporter for CKVU television in 1983. He worked there until February 1988, then became a Vancouver police constable in December of that year.
He remained with the VPD for more than 11 years, until March 2000, when he left to devote himself to his video-analysis business. While with the Vancouver force, partly because of his TV experience and his acquaintance with local media people, he essentially ran the fledgling forensic video unit that was used to analyze electronic evidence after the city’s first Stanley Cup riot, in June of 1994.
In an interview on CBC Radio’s The Current on June 17 this year with host Erica Johnson, Fredericks boasted that his unit’s work essentially led to a 100-percent conviction rate with those charged after the 1994 disturbances. “Every single person we charged was convicted, primarily through guilty pleas. We only actually went to court on one person.”
But simple analog camcorder video devices of the 1990s have become today’s digital video recorders, and analysis of the newer footage has become much more complicated.
“Every single DVR case is a research project to determine what the best method of processing is based on how the images were produced in the first place.”
In other words, they have to get it right during the analysis stage to stand up to any possible tough probing by merciless defence lawyers.
Police Chief Chu is on the record as saying, during an August 17 news conference, that without “a full examination of all the evidence” police would be risking “weak cases with acquittals, bad case law, and little or no penalties”.
Unfortunately for Fredericks, the Vancouver police, the Crown, and (two years ago) the RCMP—and even Christy Clark, in her current populist, get-tough-on-crime, cameras-in-the-courtroom stance—aspects of that technical prowess were pretty much dismissed during the two-year Braidwood Commissions of Inquiry into the death of Robert Dziekanski at the hands of Taser-wielding RCMP members at the Vancouver International Airport in 2007.
Fredericks came in at the last minute to testify as an expert for the RCMP. He claimed that his extensive examination of the only available video of the events leading up to Dziekanski’s tasering and subsequent death showed that he took “three distinct steps forward towards [an RCMP officer]”.
This would support the RCMP’s contention that the Polish immigrant was combative or displayed threatening behaviour, thus justifying their use of multiple Taser shocks.
But the lawyer representing the Polish government, Don Rosenbloom, brought in an expert witness in photogrammetry, Mark Hird-Rutter, who testified—as related in Braidwoods final report, issued on May 20, 2010—that Fredericks’s conclusions were predicated on “flawed methodology”. He said “it would be wrong to use them to determine the movement of Mr. Dziekanski”, and he testified that Fredericks’s use of perspective geometry to determine distances is “mathematically very weak”.
He also criticized Fredericks for using only two sets of measurements “to determine the scale change between [video] images (when the industry standard is at least 10)”.
Another witness for the defence, Duane MacInnis, an expert in the field of incident reconstruction and with an applied specialty in forensic photogrammetry, dismissed Fredericks’s opinion about Dziekanski’s forward movement as “not technically supportable because of measurement errors”. (For more on this, see pages 194-200 in the Braidwood commission’s final report.)
And Commissioner Thomas Braidwood, a retired B.C. Court of Appeal justice, agreed wholeheartedly. In dismissing Frederick’s testimony in his final report (“I am not prepared to rely on Mr. Fredericks’ analysis”), Braidwood cited as reasons: “His verification methodology was flawed…I accept the opinions of Mr. Hird-Rutter and Mr. MacInnis on this issue”, and “He has no special expertise in determining steps from shoulder movements”.
Because of that, Braidwood wrote: “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 [airport] 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.” (For more on this, see pages 244 and 245 here.)
Perhaps more embarrassing for Fredericks was the May 25, 2009, exchange during the inquiry between him and Rosenbloom at the start of the lawyer’s cross-examination of Fredericks.
Given the subject matter of the commission, Rosenbloom thought it natural to ask Fredericks if he was aware that TASER International, whose product safety was the principal focus of the first stage of the inquiry, was a major corporate donor to the Law Enforcement and Emergency Services Video Association (LEVA). Although Fredericks has his own video-analysis company, he is also the senior instructor for LEVA, which set up the video-analysis lab and teaching facility at the University of Indianapolis where the Vancouver riot footage has been inspected.
Questioned by Rosenbloom, Fredericks testified under oath that he assisted in obtaining financial support for the LEVA program, but in answer to the TASER funding question, he replied: “I dont—no. I don’t think TASER even knows it exists and I’ve never had any involvement with TASER International—ever.”
Asked by Rosenbloom if he knew that “TASER has any involvement with the LEVA program”, Fredericks responded: “I can tell you that TASER has never ever, in any way at all, had any involvement in the lab that I’m involved in, in any way whatsoever.”
Queried as to whether or not TASER had any involvement with LEVA as an organization generally, Fredericks said he saw a TASER vendor table at a conference once, then reiterated: “And I do know that they have no financial involvement with LEVA and with the lab, and never have had.”
Asked yet again whether or not he knew of any TASER involvement with LEVA, Fredericks said: “No. I can tell you that I was intimately involved in the financial preparations of that lab, and TASER was never involved.”
Rosenbloom then produced a copy of a LEVA website page that showed TASER as a “featured sponsor”, in his words, and asked again, “speaking of LEVA, the organization, and their training program. Let’s forget the lab.…I have just presented to you a document that shows that the featured sponsor of the LEVA training program is TASER International, is it not?”
Fredericks’s reply: “No. That’s completely untrue.” The lawyer then showed another “document” that showed TASER as a “featured sponsor” of what Fredericks acknowledged was a LEVA training conference. A third document—supplied to Fredericks by Rosenbloom “just to nail this down”, as the lawyer put it, was from a LEVA web page entitled “To Become a Corporate Sponsor Member”.
Rosenbloom: “It lists the current corporate sponsors. TASER International is listed on page 2, and in fact is highlighted as the feature sponsor of the organization.”
A seemingly uncomfortable Fredericks talked about how TASER might have paid some money to show up on the page and rented a vendor's table at the conference but denied any knowledge of how much, if any, money went to LEVA.
The purpose of presenting this inquiry exchange is not to suggest in any way that Fredericks was untruthful under oath. The commissioner had nothing to say on the matter of TASER funding for LEVA. The point is that Rosenbloom wanted to paint a picture of Fredericks before he even started in on the technical aspect of his cross-examination. That and his own expert witnesses finished the job he set out to accomplish. (To read the entire entertaining transcript of the cross-examination, read pages 65 to 90 here.)
Photogrammetry may have little or nothing to do with the evidence presented in any possible future trials of Stanley Cup rioters. But the fact is that Fredericks presented himself as sufficient an authority to be considered an expert in that area (although that status was denied by the commissioner, who only granted him standing with “expertise in various aspects of photogrammetric measurement”) and testified that “a good number” of his expert-testimony cases in the past involved video measurements like the ones he performed for the RCMP in the Braidwood inquiry.
His methodology for those measurements was shot down by experts, with the final agreement of the commissioner.
That dismissal of his expert testimony, combined with his cozy relationship with the Vancouver police and his performance under questioning about the sponsorship by TASER International of the organization for whose University of Indianapolis lab he is lead instructor could have an effect on the weighing of evidence in future trials.
The Vancouver police are hoping trials won’t be necessary in the vast majority of the upcoming riot cases.
But their use of Fredericks and his LEVA-trained cops might give canny lawyers pause to reflect on the possibility of advising their clients to fight the riot charges.
Will those lawyers, perhaps with experts of their own—maybe even the same experts used to discredit the testimony of Fredericks during the Braidwood Inquiry—cause an enormous traffic jam in the court system and perhaps get their clients, guilty or not, off the hook when it comes their turn to face justice?
Wasn’t that just what Chief Chu was afraid of when he said he wanted full technical examination of all available evidence to avoid “weak cases with acquittals, bad case law, and little or no penalties”?