Is the “new development” in the Clayton Miller case credible? Morning File, Tuesday, July 11, 2017

News

1. Clayton Miller

Yesterday, Wagner’s law firm held a press conference to announce “new developments” in the Clayton Miller case.

Before getting to those “developments,” let’s quickly review the circumstances, as related by the law firm (I don’t think this part of the description of events is contested):

Clayton Miller, a 17 year-old-boy from New Waterford, Cape Breton, was last seen by his parents, Maureen and Gervase, the evening of Friday May 4, 1990. That night approximately 60 New Waterford teens, including Clayton, gathered at a party outdoors in New Waterford at “The Nest.” Sometime before 10:00 p.m., six members of the New Waterford Police (NWP) — at the time, a force with a reputation for being particularly rough — raided the party, arresting ten youths in total.

When Clayton still had not returned home by 1:00 a.m., the Millers started to worry. On Saturday May 5, 1990, Gerald Coady and Baxter Thorne walked along the stream by The Nest, in search of a case of beer they’d dumped the night before. They found nothing. Sheila MacLean also walked along the stream through The Nest that day. She found nothing. Nor did any other individual who passed through the Nest that day.

On May 6, 1990, Clayton’s body was found face down, in a shallow stream by The Nest. He was wearing a bright red sweater. The NWP did not preserve the scene, and took no photographs.

The Miller family accuses the New Waterford Police of murdering their son, and then at some later time moving the body back to the stream, where it was found Sunday.

New Waterford is a long way from Halifax, and 1990 was a long time ago. I have no understanding of the town, the people involved, or the terrain, and I haven’t read the reams of documents collected over the past 26 years. Which is to say, take the following with a grain of salt.

I do know, however, that this is an extremely emotionally polarizing issue. I attended yesterday’s press conference and live-blogged it on Twitter, I hope fairly dispassionately and objectively —  I don’t have a dog in this hunt. As the press conference wound down, I asked for comments and opinions from readers, and boy howdy did I get them. Dozens of them.

The comments fall into two camps, which I’ll call the Miller Camp and the Police Camp.

Those in the Miller Camp believe, and say they have the evidence to back it up, that Clayton was murdered by police, that his body was moved to the brook sometime late Saturday night or early Sunday with the aim of making his death appear to be accidental. Further, they say every subsequent police or justice department investigation into Clayton’s death is part of the coverup, and that those in the Police Camp lie and use intimidation tactics, including the threat of violence, to silence those who question the police version of events.

Those in the Police Camp basically argue the opposite: Clayton’s death was a tragic event, but beyond that nothing untoward happened. The Millers are looking to blame someone for the loss of their child, and wildly accuse anyone and everyone of being part of an unfounded conspiracy. Repeated investigations have found no substance to back up the Millers’ allegations, and we should all let it drop and move on.

This is difficult territory to navigate through. Just trying will invariably piss off a bunch of people. But here goes.

I think there’s probably much to say about the culture of disaffected teenagers having a raging alcohol party in the waste lands of an abandoned coal field. There’s nothing unique to New Waterford about this — it defines North American teen culture; I did similar things myself — but my guess is there’s a distinctive New Waterford aspect to it, and I’d like to know more about it, especially about how it was perceived, tolerated or not, and policed by adults. My understanding is that the New Waterford Police had a nasty reputation for being especially violent, even towards harmless teenagers just sitting in the woods getting drunk. Is that actually true? I’ve had people tell me the exact opposite (that police politely drove drunk kids home), but I’ve heard about the rough reputation from enough people I know and trust that I think it’s probably true.

Regardless, the police were sent into the woods to disperse the party, and the kids scrammed. From a description of the terrain I heard yesterday, there are ledges, steep hills, and drop-offs all around the property (which is now Colliery Lands Park). It’s completely believable that among 40 or 60 kids running from police in the dark over such terrain, one could fall and hit his head or otherwise end up dead in a rough stream crossing the property.

The Miller Camp points to the numerous people who walked across the property on Saturday.

Gerald Coady and Baxter Thorne went Saturday morning to retrieve a two-four of beer they had stashed in a concrete culvert the night before. The beer wasn’t there, so thinking it had washed downstream, they followed the brook looking for it. They couldn’t find it, so they reversed their path along the stream and left. They saw no body in the stream.

Sheila MacLean was also on the property on Saturday. She said she chased a child she was with right to the edge of the stream. The next day, she said, when she saw where Clayton’s body was, she realized that the body was in the same spot she was at on Saturday, where she had seen no body.

Daniel Perfect and another boy went to the site Saturday to collect empty cans and bottles for their recycling value. They said they walked along the embankment the entire length of the stream and saw no body. They also said they ran into an older man, in his 40s, who was likewise collecting recyclables, so he apparently didn’t see a body either.

Constable Darren Drinovz, who was not working Friday night, went to the site on Saturday. He seems to have contradicted himself as to whether he got out of his car and walked along the creek or not, but either way, he reported no body.

I am no doubt missing other people who walked the property Saturday. It’s adjacent to town, the kind of place many people would walk through on a weekend day.

When Clayton’s body was found Sunday, he was wearing a bright red sweatshirt. Is it really possible that he could have been lying in the stream for a day and a half, and all these people walked through the property and along the stream and yet never saw him?

In fact, it is possible.

People think they are far more observant than they actually are. And especially after a death, there’s an element of “no way did I miss that” that would affect grieving friends and community members. It seems completely unbelievable that a dead body wearing a red shirt in a relatively open area could be missed by multiple people walking by, but I’ve seen such circumstances before.

That may have changed yesterday, however. The “new development” announced at the press conference was the videotaped testimony of Bryan McDonald, a Cape Breton Search & Rescue captain, who said he and his team of 10-15 people searched the area on Saturday with the specific purpose of looking for Clayton, yet found nothing.

It’s one thing for untrained people looking for cans and bottles to miss a dead body in a stream, and another thing entirely for trained search and rescue workers specifically looking for a body to miss it.

But is McDonald’s account credible?

I don’t know. McDonald said he and his team conducted a search in the area for up to four hours. It doesn’t seem likely to me that such a large operation could take place immediately adjacent to a densely populated residential area, and in an area that apparently lots of people visited throughout the day, and yet no one made note of the Search & Rescue operation. But perhaps they did, and I’m just not familiar enough with the case records to know that it was common knowledge.

Still, why is this only coming to light 26 years later? Why didn’t McDonald speak up sooner?

McDonald says he assumed all along that the various investigations into Clayton’s death were aware of the S&R operation.

The problem is that in the intervening 26 years, many members of the CB S&R have died or moved on and can’t be found. Lawyer Ray Wagner said yesterday said his firm has located one other CB S&R member who was with the group in 1990, but for whatever reason, that man has not agreed to talk to the lawyers.

I asked the law firm for the videos of Wagner’s interview with McDonald that were shown at the press conference, and they kindly provided them. I’m posting them here in full so anyone interested can watch them and form their own conclusions. Part 1 deals primarily McDonald’s credentials; the meat of the interview is in Part 3.

My view is that there might be something to McDonald’s testimony, but this interview isn’t enough to establish it. Wagner needs corroborating evidence, either the testimony of another S&R member or documentary evidence that establishes the CB S&R team actually canvassed the area on Saturday. Until that corroborating evidence is produced, I can’t be satisfied that McDonald is remembering events correctly.

Of course, even if it’s established that the Search & Rescue team did canvass the area Saturday and didn’t find a body, it doesn’t necessarily mean that it wasn’t there and they just missed it — although I find that highly unlikely, as I’ve seen enough Search & Rescue teams in operation to know that they do thorough work.

But even if it can be established with convincing proof that the Search & Rescue searched the area and there was no body, it’s another thing entirely to demonstrate that the police killed Clayton and moved his body to the stream after the Search & Rescue team did its work. There would need to be evidence for that as well, and proof of incompetence or butt-covering, while suggestive, is not evidence.

Moreover, by McDonald’s testimony, the [now deceased] chief of the New Waterford Police was aware that the Search & Rescue team had canvassed the area Saturday, so does it make sense that police would move the body to the scene afterwards? I think not, unless the argument is that a rogue element of the police force, or even a single officer, did so.

Here’s where I give the Police Camp-friendly view of things: The Millers tragically and unexpectedly lost a son, and they want to blame someone for that loss.

Whatever the facts of Clayton’s death, there’s another element of this case that fascinates me: the deep-seated resentment in New Waterford that still reverberates from the collapse of the coal industry. The local economy suffers through no fault of the populace, and governments have failed to either take that economic struggle seriously or find a way to fix it. The people are rightly angry, and the Clayton Miller case is a way to channel that anger against perceived authority — the authority of a too-aggressive police force, the authority of provincial justice officials, the authority of outside media and anyone else who raises a skeptical eye towards the Millers’ version of events.

But while anger is understandable, by itself it doesn’t produce truth. For that, we need evidence. And the SIRT review of what evidence we do have found that charges of police involvement in Clayton’s death and a subsequent coverup are unfounded. It’s worth reading that SIRT conclusion in its entirety.

There’s a view among some in the Miller Camp that SIRT is also part of the coverup. I don’t find that a credible view. Although of course anyone can make mistakes and (as #2 below suggests) there may be institutional constraints, SIRT director Ron MacDonald does his job diligently and aggressively researches police misconduct when he finds it. As I’ve discussed as recently as last week, SIRT’s aggressive investigation of Corey Rogers’ death while in police custody has led to the Public Prosecution Service recusing itself from that case.

However.

Here’s where I offer up an opinion contrary to most of what I just wrote.

After researching the Dead Wrong series, I’m of the opinion that police misconduct, including the planting of evidence, is more common than acknowledged. I’m an avid listener to Jason Flom’s Wrongful Conviction podcast, where each week Flom and exonerated prisoners go through incredible stories of being framed by police, of coerced testimony, of confessions being beaten out of suspects, and worse. Such police misconduct happens all across the United States, from big cities to rural communities and everything in between. It happens to black people, white people, immigrants, poor people, rich people. And no, Canada isn’t immune to this: The Association in Defence of the Wrongfully Convicted has managed to free dozens of people from prison; as worthy as their work is, they’re under-resourced and are only scratching the surface of what I believe is an immense problem. I’ve written extensively about the Glen Assoun case, and I believe there are several other wrongful convictions in Nova Scotia.

At issue here is the public acceptance of our police and justice systems. At what point do we lose faith? What if we knew that one per cent of the people convicted of crimes were in fact innocent? How about 10 per cent? Twenty per cent? Would you trust that system?

And so there are very large societal pressures to make sure that the police, courts, and police oversight boards are trusted. Criticism and charges of corruption are met with condemnation and worse.

I tend to believe those who tell me (privately) they have been intimidated and threatened over their involvement in the Clayton Miller case.

Do I know that the New Waterford Police killed Clayton Miller and then moved his body to the stream to make it look like an accident? No, I don’t. But I certainly think it’s possible.

Still, no matter how well-founded my belief that there’s lots of police misconduct that is being ignored and swept under the rug, that does not translate into proof of a particular instance of it. For that, I’ll need concrete evidence.

And so far, the Millers and their lawyer Ray Wagner haven’t produced that concrete evidence. That doesn’t mean they won’t — Wagner promised three more press conferences over the coming months, revealing more information he says he’s uncovered or is about to uncover.

We’ll see. I remain open to it. It’s just not here now.

2. SIRT

“Plans are in the works to create a single, civilian-led agency to police the police in Atlantic Canada, though a debate is brewing on whether bigger changes are needed to build trust in the region’s law officers,” reports Michael Tutton for the CBC:

Senior government officials in the four provinces have confirmed the plan is to expand Nova Scotia’s Serious Incident Response Team into a region-wide investigator.

[…]

However, some observers say the four provinces should go beyond cost considerations and make bigger changes to strengthen civilian oversight of the police.

The existing watchdog in Nova Scotia has a mandate to investigate cases that involve death, serious injury, sexual assault, domestic violence or other matters of “significant public interest” that may have resulted from the actions of a police officer, and to decide if charges should be laid.

John Sewell, a former mayor of Toronto and an author on police issues, said if the Atlantic provinces want to expand SIRT, they should also give it the ability to make recommendations on how police can improve their performance.

3. Custio Clayton

“A cloud still follows Custio Clayton after one spring night in Montreal,” reports Philip Croucher for Metro:

Clayton says he was racially profiled by Montreal police during a traffic stop April 4 — during which a veteran officer accused him of being a drug dealer hiding marijuana inside a 2017 Yukon Denali.

The boxer says the only things found in his rental vehicle were two baby car seats, a booster seat and his gym bag.

“I’ve never smoked a day in my life,” he said.

More than three months have passed since he was pulled over for “being Black,” Clayton said, and his call for a public apology remains unanswered.

The Halifax Examiner interviewed Clayton about the arrest in April.

4. Whale rescue fatality

“The Campobello Island community is mourning Joe Howlett, the man who was killed Monday while trying to rescue a whale in the Gulf of St. Lawrence,” reports Anjuli Patil for the CBC:

Fisheries and Oceans Canada confirmed there was a fatal incident on July 10 involving an individual aboard one of its vessels.

[…]

[Campobello Island mayor Stephen] Smart said Howlett, a father and husband, had been working to rescue a whale at the time he died.

“He did it for years, he was good at it and had a lot of successes. I’m sure for him, I sure it was just another day at work … he was a very brave man, a very good man and was doing something he believed in,” said Smart.

5. Marblehead

“A new elapsed time record was set for the 363 nm Marblehead to Halifax Race, established by the Mills 68 Prospector when they finished today at 18:28:50,” reports Sailing News. “Following the start yesterday in Marblehead, MA, Prospector completed the course in 28:28:50, beating the old record by 2:18:02.”

As of 7am this morning, all the other boats were still at sea:

Government

City

Tuesday

No public meetings.

Wednesday

Regional Watersheds Advisory Board (Wednesday, 5pm, Alderney Public Library) — here’s the agenda.

Province

No public meetings this month.

On campus

Saint Mary’s

Wednesday

Thesis Defence, Applied Science (Wednesday, 10am, Science 345) — Masters student Beibei Liu will defend her thesis, “MicroRNAs Contribute to Enhanced Salt Adaptation of the Autopolyploid Hordeum Bulbosum Compared to its Diploid Ancestor.”

In the harbour

3am: Alpine Eternity, oil tanker, arrives at anchorage from Beaumont, Texas
4am: Atlantic Star, container ship, arrives at Fairview Cove from Liverpool, England
5:30am: Faust, car carrier, arrives at Autoport from Southampton, England
9am: Atlantic Huron, bulker, sails from National Gypsum for sea
10am: Alpine Eternity, oil tanker, sails from anchorage for sea
4:30pm: Atlantic Star, container ship, sails from Fairview Cove for New York

Footnotes

Just Tuesday?