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A Defence lawyer's perspective on issues in criminal law
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Illustrating legal concepts: New York man fakes his own death
September 16, 2020
Illustrating Legal Concepts
Although the story of a man who faked his own death in a court case from Nassau County, New York, is not Canadian criminal law report, it is interesting because it serves to illustrate a plethora of legal concepts relevant to Canada’s criminal law. Concepts include: identification, circumstantial evidence, proof and grounds for judicial interim release (bail). This case also illustrates the difference between the impression created by a news release and the hurdles to proving an actual criminal prosecution.
In the view of this Calgary criminal lawyer, the article titled: “Man who tried to Fake Death to avoid Sentencing was Caught by Prosecutor” may be a bit misleading. I say this because I suspect it may be quite difficult for the District Attorney to prove that the man tried to fake his death to avoid sentencing.
oxygen crime news
According to Oxygen Crime News, Robert Berger, a New York man, tried to fake his own death to avoid sentencing in relation to a pair of felonies.
Having never heard of Oxygen Crime News, I did a bit of research on the source. Oxygen Crime News is a pay television channel owned by NBC. Its programming purportedly consists of true crime stories. Of course, as with any Internet story (including this blog), it is incumbent on you to do your own research, use your own rational good sense and not to myopically accept anything you are exposed to online.
Robert Berger pled guilty to stealing a Lexus motor vehicle. He also pled guilty to attempted theft of a pickup truck. He was released on bail while awaiting sentencing. His case was to be heard in October 2019. At some point prior to his sentencing, Mr. Berger’s fiancé purportedly delivered a Certificate of Death to Berger’s criminal defence lawyer, who in turn delivered the Certificate to the Nassau County District Attorney. According to the Certificate, Mr. Berger “died by suffocation”. Based on this information, the accused’s defence lawyer requested that the charges be dismissed.
On first glance, the Certificate of Death was a fine forgery – even bearing a likeness of the seal of the Office of Vital Statistics. New York District Attorney Madeline Singas, however, was not convinced; she spotted a typo. Can you spot the issue?
According to District Attorney Singas, the accused’s “failure to use spellcheck” and proper “font” was his undoing. Ms. Singas contacted the New Jersey Department of Health, who confirmed that the Certificate was fraudulent. Ultimately, Mr. Berger was arrested in Pennsylvania and returned to face his charges in New York. Mr. Berger’s defence lawyer was relieved as counsel of record on grounds that he was victimized by his own client. Though Mr. Berger is now serving sentence with respect to convictions for the offences in which he pled guilty, he reportedly has bail set at $1 for his new charges. Other than the monetary requirement, the conditions of Mr. Berger’s release were not identified. Charges included offering a false instrument.
Bail: FROM A CANADIAN CRIMINAL LAW PERSPECTIVE
Applying Canadian criminal law, Mr. Berger’s case is quite interesting.
As a starting point, you might wonder how a man who allegedly forged a false document and fled the jurisdiction for the apparent purpose of avoiding criminal prosecution has judicial interim release?
In Canada, there are generally three grounds that must be addressed before a person charged with a crime can be released on bail: primary, secondary and tertiary grounds.
To begin with, it is important to remember that anybody merely accused of committing a criminal offence is presumed innocent until proven guilty. Also, it is important to remember that in most cases, the default response for any presumptively innocent person charged with a crime is release on bail pending the outcome of the case. Though it may be difficult to see from reading an initial news report, there are actually innocent and wrongly accused people. Also, there are actually cases where the prosecutions prospect of conviction is low. Our bail system is not intended for punishing the accused before the case is proven.
The primary ground concerns whether the accused is a flight risk. On the surface, since Mr. Berger apparently missed his sentencing and was located outside the jurisdiction, it appears he poses a flight risk. Notwithstanding that a person may be a flight risk, however, the Court must nevertheless consider whether conditions of release can mitigate the risk. Risk of flight is often addressed by conditions such as jurisdiction clauses, reporting conditions and/or other more powerful forms of monitoring such as ankle bracelet monitoring, curfew or house arrest.
The secondary ground reflects on whether the accused is a “substantial likelihood” to re-offend and endanger the public if released. Though Mr. Berger’s history suggests that he might pose some danger to the public (in terms of stealing a car), the news report does not provide enough information (such as his prior criminal record) to effectively evaluate this ground. The accused’s criminal record is relevant; for past behaviour may be an indicator of future behaviour. That said, even if there is a secondary ground concern, the Court must determine whether conditions of release are capable of mitigating risk. For example, a condition that Mr. Berger not be in any motor vehicle without the registered owner being present could assist law enforcement monitoring him within the community. The Court might also insist on strict reporting for Mr. Berger to ensure both his presence in the jurisdiction and his heath.
The final bail issue (tertiary ground) revolves around whether the public would lose confidence in the administration of justice if the accused was released. Evaluating this issue often involves looking closely at the apparent strength of the prosecution’s case. In my opinion, though the case reads as strong, this is likely not the case.
standard of proof
Based on the limited information in the news release, it strikes me that Mr. Berger has bail because the prosecution’s case may be difficult (even very difficult) to prove.
The criminal standard of proof is beyond a reasonable doubt”. Proof beyond a reasonable doubt requires the Crown to prove the case to a level requiring something much closer to absolute certainty than to proof on the balance of probabilities. With this in mind, the question is, how can the prosecution demonstrate that it was in fact Mr. Berger who forged the Death Certificate? Remember, it was Berger’s fiancé who delivered the document to the criminal defence lawyer, not Berger himself.
Can the Crown identify Berger?
From reviewing the article, it is possible that the only direct evidence identifying the accused would come from either Mr. Berger or his fiancé. If the Crown was in possession of a legally obtained confession from Mr. Berger, the case may be open and shut. However, since the accused pled not guilty, I assume that either Mr. Berger did not confess or that his confession is potentially inadmissible.
Absent a confession directly implicating the accused, I imagine the only other direct evidence would come from Berger’s fiancé. However, in my experience as a criminal defence lawyer, it strikes me that her evidence is far from certain.
Perhaps the two of them collaborated together? If this is so, Mr. Berger’s fiancé may not be a cooperative witness.
Perhaps Mr. Berger's fiancé was implicated in the fraud as well? For example, maybe she thought Mr. Berger was actually dead and fixed with an honest belief in this information, simply delivered what she thought was a true document to the defence lawyer. If that is so, she might not be able to directly implicate Mr. Berger.
Absent direct evidence from either Mr. Berger (via a confession) or his fiancé, the Crown may be forced to prove identification entirely by way of circumstantial evidence.
Circumstantial evidence is a kind of evidence that permits a trial judge to draw inferences. In Canada, to convict a person based entirely on circumstantial evidence, the logical inference of guilt must be the only reasonable inference available. Since it was Mr. Berger’s fiancé who delivered the document and not the accused himself, the defence would obviously argue that there are reasonable inferences other than the guilt of the accused.
Forensic Evidence Doubtful
Perhaps the police conducted a forensic examination of the forged document. A forensic examination could include dusting for fingerprints or swabbing for biological material (DNA). A fingerprint could be damning evidence providing a strong circumstantial inference that it was the accused who forged the document. Proving the owner of the fingerprint, however, is not always easy. This kind of evidence requires expert opinion. There are a variety of defences, to include differences between the known and latent, comparison flaws impacting the reliability of the expert opinion and a failure to prove who made the known print. My point is, proving this case by way of a fingerprint would still be challenging.
Similar to a fingerprint, evidence that Mr. Berger’s DNA was on the document could be damning. However, as with a fingerprint, the Crown would need to present a properly qualified expert. Also, the likelihood that Mr. Berger’s DNA is on the document is quite low; for this is not the kind of surface where one would expect to find biological material.
Though forensic examination could be very useful, in my experience as a criminal lawyer, it is unlikely that police would have taken this investigative step.
proof of the crime
Identification is not the only defence. The Crown must also prove that a crime was committed. To prove the forgery, the Crown must demonstrate beyond a reasonable doubt that the Certificate of Death was in fact a forgery. Though proving this is theoretically fairly simple, it is important to appreciate that criminal cases require the introduction of admissible evidence – which is not always that easy. The Crown may need to procure an expert capable of opining that the Certificate of Death was in fact a forgery. Once proven, the Crown would then need to demonstrate that it was the accused who either created the false document or was a party to its creation. Again, accomplishing this would likely require evidence from Mr. Berger’s fiancé.
This may sound simple, but remember, Mr. Berger’s fiancé may not be a particularly cooperative witness; for there is a good possibility that she is a party to the offence and even if she is not criminally involved, she may not be motivated to testify against her future husband. To reiterate, it is possible that she didn’t know he was still alive.
The charge of forgery and relying on a false instrument may be the least of Mr. Berger’s worries.
In Canada, “obstructing justice” occurs when a person willfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding. In Mr. Berger’s case, there was a pair of ongoing judicial proceedings that he allegedly attempted to defeat by faking his own death. His fiancé may be a party to the offence of attempting to defeat the judicial proceedings because she delivered the false document to the defence lawyer. If you think the Court looks dimly on crime in general, judges are acutely concern when the accused tries to fool them.
In R. v. Didechenko,  A.J. No. 1034 the Court dealt with an accused who obstructed justice by giving a false statement. The trial judge noted:
Obstruction of justice attracts a significant penal liability as the maximum sentence is 10 years imprisonment. The public policy reasons for this, significant maximum are obvious. The costs to municipalities, and to society, spent on law enforcement and crime investigation is significant. It does not need to be increased by individuals making false complaints about thefts in an attempt to exonerate their liability. I view obstructing justice as a serious offense in the Criminal Code. It strikes at the heart of the administration of justice in a free and democratic society, and must be dealt with aggressively. Again, the public policy reason for this type of significant maximum sentence is to provide deterrence, both on an individual and community basis. Denunciation and deterrence are the key factors in imposing a fit and proper sentence for obstructing justice.
As a Calgary criminal lawyer I am not only interested in educating the public about our criminal law but am interested in helping the public broadly interpret news events. The aforementioned case nicely serves two functions: it allowed me to explain a few legal and evidentiary issues, while at the same time permitting me to highlight that a case in the news may not reflect the quality of the case before the courts.
Calgary Criminal Lawyer
There are many Calgary criminal lawyers to choose from. If you have been charged, David Chow would appreciate the opportunity to earn your business. Call 403.452.8018 for a free remote consultation.
This entry was posted on September 16, 2020
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