Railroaded – A Spectator True Crime Exclusive / By Steve Buist
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Within 24 hours of Justice Stephen Glithero’s decision to stay the charges against Dennis Monaghan and Graham Court, the Crown decided it would not appeal.
Four weeks later, the chiefs of the Halton and Hamilton-Wentworth regional police asked the OPP to conduct a criminal investigation of the two forces and the Crown in light of Glithero’s findings.
The OPP was called in, then-Halton chief Peter Campbell said, “to see if the statements made by Judge Glithero about the Crown and the police amount to criminal misconduct or if there has been any chargeable wrongdoing.”
Five OPP detectives were assigned to the investigation, which ran from Aug. 1, 1997 to Feb. 28, 1998. More than 50 banker’s boxes of material were collected from the two police forces and the Crown offices in Hamilton and Milton.
[T]he investigation, dubbed Project No Show, resulted in a 318-page report, much of which was devoted to transcripts of the interviews.
Nine members of the Hamilton and Halton police forces were interviewed, along with two former members of the Halton Crown attorney’s office.
Almost all the police personnel were retired by the time of the OPP investigation.
[I]n the case of retired Hamilton police officer William Harris, two OPP investigators travelled to an undisclosed location in Florida to interview him at his winter retreat.
The interview lasted 26 minutes.
The OPP’s interviews were conducted between Dec. 10, 1997 and Feb. 11, 1998 and, according to the OPP report, “all statements were obtained voluntarily.”
The 318 pages reveal an OPP investigation that was shockingly superficial, woefully inadequate and bordering on inept.
In one interview, the Halton police force was misidentified as Haldimand, and the date for another interview didn’t even have the correct year.
Crown attorney Paul Stunt — who led the prosecution of Court and Monaghan in 1991 and was the subject of stinging criticism by Glithero — was interviewed by an OPP investigator at his Oakville law office on Feb. 11, 1998.
Unlike with other subjects, there’s no transcript of an interview with Stunt included in the Project No Show report. The entry relating to Stunt consists of a short prepared statement that amounts to less than four full pages in the report.
The entry concludes with the notation: “Stunt refused to sign statement.”
Stunt did not respond to The Spectator’s interview requests, which included a written list of questions.
What is worth noting are the people who were not interviewed by the OPP.
Monaghan and Court were not interviewed about what happened to them from the fall of 1989 until their successful appeal in 1995.
There’s no indication the OPP contacted the lawyers for the two men to get their side of the story about the missing evidence.
There’s also no indication the OPP contacted Glithero to ask him about his remarkable findings.
The transcripts of the interviews reveal a number of examples of leading statements and softball questions lobbed by the OPP investigators to fellow police officers.
[F]or example, here is an exchange between OPP investigator Bob Scott and Harris about the night of the missing audiotape and Schlosser’s recounting of the incriminating statement Monaghan made while they were driving along Barton Street:
Scott: “You’re ticked off, which I can understand, I would be too, OK, and you’re going to start on him and he says, ‘Wait a minute, I’ve got something for you and wait till you hear this.’”
Harris: “‘I’ve got something for you.’ That’s exactly what he said.”
Scott: “OK, so you take that and Buck (officer William McCoy) takes that out of the car.”
Scott: “And you all go back to the Hamilton-Wentworth Regional office.”
Scott: “Buck makes a copy of that tape and you listen to it, does that sound correct?”
Harris: “I don’t know whether he made a copy or not, I know we listened to the NAGRA (a tape recording device). We sat in the little office there.”
Scott: “OK, but you never see the other tapes.”
Harris: “No, no.”
[L]ater, another OPP investigator helped Harris develop his answer concerning statements he made on the stand when questioned by Earl Levy, Monaghan’s defence lawyer, about the missing tapes. When Harris offered a rambling answer about why he might have been “confused” in response to Levy’s questions, the OPP’s Clyde Vivian stepped in.
Vivian: “Is it fair to say then, Bill, that response, your understanding of the question, the response was rather generic in nature … dealing with not a specific tape but the tapes in general, that your knowledge was they would be locked away back at the office?”
Harris: “That’s correct. That’s the only thing I can think of. There is no way I would perjure myself over a dumb tape that’s got nothing and that I knew could be checked on after. I think I was confused as to the terminology of the question, that’s all.”
And, moments later:
Vivian: “And you have no knowledge of where that tape would be?”
Harris: “No idea.”
Vivian: “Did you even speak to a Crown attorney in regards to it that you can remember?”
Harris: “I may have spoke to (assistant Crown) Laurie Vechter about it, I can’t be sure, I really can’t.”
Vivian: “And you may not have spoken to Laurie Vechter about it.”
Harris: “I may not have. I can’t recall, I really can’t.”
[D]espite Harris’s fuzzy memory, there was already a passage in the Ontario’s Court of Appeal’s 1995 decision outlining the information Harris exchanged with Vechter about the tape — not only that it existed but that the tape contained no denial by Monaghan of his involvement in the Racco murder.
Further, Vechter had sent Harris’s statements to Court’s lawyer and Harris had been copied on the letter.
In a recent interview, Harris said he believed the OPP’s investigation of him was thorough, although he also said he wasn’t aware it was a criminal investigation.
“They were thorough,” Harris said. “They were a couple of good guys; they knew what they were doing.”
Harris also said he did not hide evidence in the case of Court and Monaghan.
“In 30 years as a cop, I never, ever — win or lose — tried to hold back evidence,” Harris said. “Never, ever would I do that.”
In another interview, an OPP investigator started a question this way: “OK, I’m going to ask you now about a point, straightforward. I’m not trying to cross-examine you or anything. Please understand that this is strictly an interview.”
But it wasn’t just an interview.
It was part of a criminal investigation into the actions of the police and the Crown.
One of the people interviewed by the OPP was Les Graham, who had recently retired as an inspector with Halton police and who had been the lead officer of the original Racco murder investigation in 1983.
When the OPP interviewed Graham in February 1998, he was three months into a 12-month conditional sentence for attempting to obstruct justice in connection with a different police incident.
[A] judge found Graham guilty of scheming to destroy a videotape showing a Halton police officer slapping a murder suspect twice in the head during a 1995 interrogation. There’s no mention of the incident in the OPP report and Graham was asked no questions about it.
Ironically, the OPP had to conduct a second interview with Graham because the tape of his first interview was blank.
Graham was asked if he believed the Racco murder had been solved in 1985 with the convictions of the two Musitanos, their nephew and Billy Rankin.
“Yes, we believed that we had the shooter,” Graham said. “We believed that Billy Rankin was the shooter and we also believed at that time that he was accompanied by Peter Majeste.
“We were not sure that we had all the players in the conspiracy; however, we believed that we had the shooter and his accomplice,” Graham added.
“Although charges were not laid against Majeste because we just couldn’t prove that and he was used as a witness in the prelim and that was the best we could do with him at that time.”
[O]n Dec. 10, 1997, the OPP interviewed Robert Pearson, a retired member of Hamilton police.
Pearson was the commander of Hamilton’s intelligence unit at the time Court and Monaghan were arrested for Racco’s murder.
He supervised officers Harris, McCoy and Wayne Moore.
He was unable to recall which of his officers was Schlosser’s handler — a relatively simple detail — which suggested Pearson’s evidence wasn’t going to be particularly useful.
Pearson was asked if he attended
meetings with the three investigating officers.
“Those guys, it was obvious to me that they knew what they were doing and they didn’t need any help from me,” Pearson said.
“That particular unit was staffed by types of officers where you could give them little or no supervision and rely on the fact that the job they were given was going to be carried out and you would hear about it when it was finished, whether they were successful or not,” Pearson added.
Glithero identified 17 distinct instances of serious nondisclosure of evidence that systematically deprived Monaghan and Court of the right to a fair trial.
The OPP’s report essentially ignored 16 of those 17 issues and instead focused almost exclusively on one: What happened to the missing tape from the doughnut shop on the night of Nov. 29, 1989?
[V]irtually no questions were asked about the statements of officers, suspects and other witnesses that had been blatantly edited to implicate Court and Monaghan or exonerate others.
Virtually no questions were asked about why information that could have exonerated Court and Monaghan was kept from them, or why information that would have pointed to others was also kept from them.
No one asked whose fingerprints were on the gun, bullets and cheque that were recovered, given they weren’t the fingerprints of either Court or Monaghan.
Simply put, the OPP never asked the one fundamental question that arose from Glithero’s conclusions: How could it be that so much crucial evidence that would have helped Court and Monaghan was kept from them?
Instead, almost all of the investigation centred on the missing tape. Pages and pages of transcripts were devoted to discussions of the police protocols for handling such pieces of evidence.
Even there, the OPP learned precious little that was new.
None of the three officers in the police van monitoring the conversation — Moore, Harris and McCoy — took notes of what they heard because they said it was too dark.
All three of them said they heard no denial by Monaghan of his involvement in the Racco killing; all three of them said they never listened to the tape or even remember seeing it; and all three of them recall trying to find the tape after they learned it was missing.
None of them could even be sure that the tape had been removed from the machine at any point.
In some cases, the OPP investigators never bothered to explore apparently blatant contradictions in witness statements.
McCoy was a technical specialist assigned to Hamilton police’s intelligence section.
He was responsible for setting up and monitoring the electronic surveillance of Court and Monaghan.
McCoy told the OPP investigators the clarity of the conversation from inside the doughnut shop was excellent.
“We had no problem listening to it, so it wasn’t a matter that we had to listen to it right away,” McCoy said. But three years earlier, as part of the appeal process, McCoy was interviewed in the Crown law office about the missing tape and the doughnut-shop conversation.
“He was asked whether there was any possibility that Monaghan and Schlosser could have said anything about the murder which would not have been picked up by the transmitters, and he answered that it was possible,” Glithero wrote in his decision.
“He further advised the Crown appeal counsel that the receivers would not have picked up anything said in and around the safe, which was in the back of the building, as the conversation would have been muffled.
“At another point in the notes, McCoy is noted as saying that the quality of the transmitter in the office area was good, but that the parties were not close to it for more than 10 to 15 seconds according to his recollection and that the conversation in the back area was muffled.
“At another point, he is noted as saying that the conversation became muffled as the two walked back to the rear of the building,” Glithero wrote.
[T]he OPP investigators never asked McCoy about the discrepancies in his statements.
Moore, the officer who acted as the handler for informant Aldon Schlosser, told the OPP investigators at one point that the recording capabilities of the two recorders in the doughnut shop were “consistently good.”
But then he told them later “the conversations at the back of the place were almost inaudible.
“I mean, they were dicking around with the safe, they were doing this, ah, there was very little that was of any value,” Moore said.
The OPP investigators never asked Moore about the discrepancy.
In his statement, Stunt, the lead prosecutor of Court and Monaghan in 1991, said he became aware of the missing tape some time during the appeal process after the two men had been convicted.
But during his OPP interview, McCoy said he believed Stunt had made a comment about the missing tape prior to the 1991 trial in a conversation involving McMillan.
“The only thing I can remember,” McCoy told the OPP, “there was a remark made and it was made by Mr. Stunt to McMillan and I was sitting on the outside of this, and it had to do with disclosure I think and it was ‘Well, we’re not bringing the tape up and we’re not introducing it. I don’t think you need to make disclosure on it.’
“I recall something along that line, it wasn’t those words, but there was some little remark dropped that I overheard,” McCoy said.
One of the officers interviewed by the OPP was Doug McMillan, who was involved in the Racco murder investigation.
When McMillan was interviewed, he said Stunt would have been aware early in the 1991 trial that Monaghan’s lawyer had raised the issue of the missing tape and his client’s denial.
“I seem to remember Paul leaning over and saying ‘We better look into this,’” McMillan told the OPP investigators.
From Stunt’s statement included in the report, there’s no indication he was asked about the discrepancy.
McMillan told the OPP he was the one responsible for taking the material from the original trial of the Musitanos, which comprised six volumes of evidence, and editing it down to two volumes for the trial of Court and Monaghan. These volumes, which are provided to the Crown and the defence, are known as “briefs” in legal circles.
[B]ut McMillan also told the OPP he gave all six of the original Musitano volumes — unedited — to Stunt and that disclosure of relevant evidence was the Crown’s responsibility.
“As far as the brief, he (Stunt) never directed me at any time to do a brief a certain way,” McMillan told the OPP. “He did, a number of times, make comments about ‘I don’t want this case mushrooming into the Musitano case.’”
“Now what did you think he meant by that?” the OPP investigator asked.
“It was my understanding Paul Stunt wanted to keep this down — and I could see his reasoning on it — down to this as a murder by these people (Court and Monaghan),” McMillan replied.
At the conclusion of his interview, McMillan said he was “shattered” when the charges were stayed against Court and Monaghan.
“Do you still believe that Court and Monaghan are responsible for Racco’s murder?” asked OPP investigator Scott.
“Yes,” McMillan said.
“No doubt in your mind at all?” Scott asked.
“No, no doubt in my mind,” McMillan answered.
McMillan declined an interview request by The Spectator.
In a recent interview, Harris also said he remains convinced that Monaghan and Court are guilty of killing Domenic Racco.
“They were a pair of bad bastards,” said Harris.
“As far as I’m concerned, there’s two guys walking the street guilty of first-degree murder,” Harris said.
“I feel like the bad guy now,” Harris added. “We were the good guys, tracking down a murderer. Everybody forgets that.”
After a seven-month investigation, 11 interviews and 318 pages, the OPP could come up with only one new discovery.
“In essence,” the OPP concluded, “it has never been established that the tapes made from the doughnut shop that evening ever recorded.”
On April 3, 1998, the OPP released a terse three-paragraph statement announcing it had concluded its investigation of the Hamilton and Halton police forces as well as the Halton Crown.
The brief statement exonerated the two police forces and the Crown, finding “no evidence that the officers attempted to obstruct justice by destroying or withholding a vital piece of evidence” and “no evidence that information withheld from the defence was done deliberately and with the intent to obstruct justice.”
There was no explanation of the findings and no explanation why charges were not warranted against the police and the Crown. The OPP did not respond to The Spectator’s repeated requests over a three-week period seeking an interview.
“This whole thing is just a coverup upon coverup upon coverup,” said Monaghan in a recent interview. “I said this before: I have no faith in the police investigating the police.
“I don’t know what was in the minds of the OPP officers, but it sure wasn’t to find out incriminating information, as the judge blatantly put it — the abuse, the process, bringing the justice system into ill repute,” Monaghan added.
“There wasn’t even one question I saw that even suggested that. It was all just leading, almost like going through the motions.
“It was almost like they were buddy-buddy,” Monaghan continued. “It wasn’t an investigation. This isn’t how you interrogate a criminal or a potential criminal.”
Court said recently it’s “mind-boggling” no charges have been laid against the police or the Crown.
“The OPP’s investigation was biased, incomplete, had hidden agendas and contained evasive and non-direct responses,” Court said. “The investigation was not taken far enough for any type of resolution and then the report was suppressed until the issue was forced.
“I feel that once people are given the opportunity to see this report, I am confident that they will demand answers as to why this has happened,” he added.
“If these guys have wrongfully convicted us in the way they wrongfully convicted us, how does it not bring the administration of justice into disrepute?” Court asked.
“It wasn’t an investigation, it’s a coverup. It is literally a coverup.”
OPP “NO SHOW REPORT”
The redacted OPP “No Show” report appears in this document as three separate releases: in December 2011 a small portion of the report was released, in October 2013 another portion of the report was released following another appeal to the Information and Privacy Commissioner, and in May 2014 another portion of the reported was released following another appeal. Certain segments of the original report overlap in these releases. They are presented here in the form that they were made public.