Key evidence withheld, claims Staples suit Dunnville man spends 31 years trying to clear his name BY ALAN GILDAY CHRONICLE STAFF WRITER HAMILTON - Gary Staples has been living a nightmare.
Convicted and then acquitted of murdering Hamilton cab driver Gerald Burke in 1969, the Dunnville man has been trying to clear his name for the past 31 years.
In a lawsuit filed in April, Staples and the murder victim's sons have accused the Hamilton police of misconduct.
Staples spent a total of 22 months in Kingston Penitentiary before the conviction which sent him to prison for life was quashed on appeal.
During his second trial in 1972, Staples produced evidence which indicated he was in Dunnville at the time of the muder. He had been implicated and subsequently convicted during his first trial, primarily on testimony given by a former girlfriend who was facing charges herself and who was discredited during the second trial.
Staples, Burke's sons and members of the Innocence Project - an organization which works for the rights of the wrongfully convicted - have found new evidence which may finally bring Staples satisfaction.
Prior to the discovery of the new evidence, Staples had been working for the past few years to have key pieces of evidence tested using DNA analysis including a hunting jacket stained with blood. The evidence was reported missing from the police property room.
"I'm very tired," said Staples at a press conference in Hamilton on Tuesday morning. "I just want someone to say they're sorry because I didn't kill Gerald Burke."
Staples has filed a $6.1 million lawsuit against the Hamilton police department, which accuses the force of negligence, malicious prosecution, misfeasance in public office, conspiracy, assault and battery, and includes claims for punitive, exemplary and aggravated damages.
The statement of claim, filed by Staples and Burke's sons in the Ontario Superior Court of Justice on April 26, 2001, names the Hamilton chief of police, the Hamilton Police Services Board and five officers as defendants. The statement of claim has not been proven in court.
According to Staples' lawyer Sean Dewart, the police interviewed Wayne Salisbury, a man who was driving by the murder scene on December 5, 1969. Salisbury told police he and his wife saw three youths running from the car where Burke was killed. A 14 year old boy interviewed after Salisbury said he saw one person running from the scene.
In an internal memo entitled "The Damned Salisburys" discovered by law students working for the Innocence Project in October, 2000, the investigating officer told his superiors the Salisburys' evidence was not disclosed because it contradicted the evidence given by a key crown witness and would so confuse the jury that they would acquit just because of the contradiction.
In the memo, the officer admitted he was reluctant to write down the evidence at all because of the effect it could have had on the trial.
The memo was not shown to Staples' defence team. Throughout his trial, his appeal and the second trial where he was eventually acquitted, no mention of the Salisburys was ever made.
Law students Dean Ring and Colleen Robertshaw found the internal memo but were prevented from photocopying it by the police. "If the Hamilton police had permitted us to make a photocopy of the memo, we would be showing it to you today," said Ring, a former forensic analyst with the Ontario Provincial Police.
"This new evidence demonstrates that 30 years ago, members of the Hamilton police department who had taken an oath to uphold the law, deliberately suppressed evidence," Dewart said. "In their own words, they did so because they thought this evidence would lead to Gary Staples' acquittal. Because of what they did, Mr. Staples was convicted of a murder he had nothing to do with, and sentenced to life imprisonment. Even after he was ultimately acquitted in 1972, his life was a living hell and to the present he is shunned in his own community."
Gary's wife, Marie Staples, said her husband has been outcast by his own community and labelled the "man who got away with murder."
"We want the Hamilton police to admit they made a mistake and to do the right thing," she told reporters.
According to Dewart, the Hamilton Police believe there is nothing to investigate. "The Hamilton Police Services Board was served with the suit last week," he said. "We are seeking compensation for Gary Staples."
"To this day, Gerald Burke's sons, who were toddlers when their father was murdered, don't know who is responsible for the crime."
Dewart said the case is a milestone in the Canadian justice system because it's the first time a victim's family members have called for a full investigation.
Burke's son, Darrin Burke told reporters he's convinced Staples didn't kill his father. The Hamilton man and his younger brother Bob Denison never got to know their father. It was only through the case files which included painful autopsy photos that the pair learned a great deal about the man.
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