Woman with IQ of 50 wrongly convicted of murder, then denied legal aid

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Alberta Legal Aid has refused to pay for the appeal of a murder conviction of a woman with an IQ of 50 – even after the Crown conceded it was a wrongful conviction.

Wendy Scott, 30, whose previous record consisted of nothing more serious than shoplifting, received an automatic life sentence after pleading guilty to second-degree murder, with no parole eligibility for 10 years. She was originally charged with first-degree murder in the stabbing death of Casey Armstrong at a trailer park in Medicine Hat four years ago. The first-degree penalty is life with no parole for at least 25 years; the guilty plea spared her a wait of at least 15 years for a parole review. Another woman has been convicted of the killing.

Ms. Scott's verbal comprehension has been assessed at the 0.1 percentile rank (the lowest one among 1,000 people) and her functional memory at the 0.3 percentile rank, according to court documents filed by her appeal lawyer, Deborah Hatch of Edmonton. She has been in prison for nearly four years and will be retried after a three-member appeal court unanimously threw out her conviction on Oct. 16 and ordered a new trial. Legal Aid refused to finance the appeal.

Ms. Hatch said the facts the defence and Crown agreed to said little more than Ms. Scott accompanied an individual to a residence where that person killed someone, and that she then left the residence with that individual. "In the transcript of her sentencing, the facts could not establish that she did anything that would make her a party to a murder," she said in an interview.

"You would think that a Legal Aid system that exists to ensure that the financially disadvantaged have access to justice would have the capacity to provide coverage to someone who has been wrongfully convicted. Especially when someone with diminished intellectual capacity is involved."

On Oct. 2, after the conviction was overturned, Ms. Hatch reiterated earlier requests for funding of the appeal. In response, Alberta Legal Aid's vice-president of client services, Deanne Friesen, told her in an e-mail: "I can confirm that we will not be providing retroactive coverage for Ms. Scott's appeal matter. Our Rules and Policies do not permit coverage to be granted retrospectively. Further, the opinions we have on file with the exception of your own have clearly indicated that they felt the appeal was without merit."

In Ms. Hatch's view, the case illustrates a crisis in legal aid funding in Alberta – a shortfall that exists in several provinces, criminal defence lawyers say. It also highlights that people facing stiff sentences have no guaranteed legal funding for an appeal – a common situation in Canada. And no extra care is taken for people with diminished intellectual capacity.

Alberta Legal Aid based its opinion that Ms. Scott's appeal had no merit on the viewpoint of her trial lawyer, Maggie O'Shaughnessy of Calgary, said Suzanne Polkosnik, the president and chief executive officer.

"We turn to the individual who is the most familiar with the case and the client, and that is the individual who defended them at trial," Ms. Polkosnik said. "That opinion came back that there was no merit." A lawyer at Legal Aid Alberta agreed with Ms. O'Shaughnessy. She added that Ms. Hatch had filed incomplete information, and not added to it, or appealed the rejection. Ms. Hatch replied that she used every procedure, sending letters and filling out forms even when told no review was available.

Ms. O'Shaughnessy did not reply to messages requesting comment.

"Our rules are quite clear with respect to whether we extend retroactive coverage," Ms. Polkosnik said. "If we have found that there is no merit to an appeal and later the appeal is granted, later on, coverage is not granted."

Ms. Hatch applied to the Alberta Court of Appeal for funding under a section of the Criminal Code that allows the court to order the attorney-general to cover legal costs in the interests of justice. The three appeal-court judges made the order unanimously last Thursday.

In the United States, indigent applicants have a right to legal aid for the first round of an appeal, said Anthony Moustacalis, head of the Criminal Lawyers Association. Under provincial legal-aid rules, the convicted person needs to show the appeal has merit.

Ms. Polkosnik said Ms. Scott's case had nothing to do with Alberta Legal Aid's funding problems.