Meet the man who fights for Vancouver’s wrongly convicted

'I have to believe in the justice system, and I have to do my job'

January 6, 2016

By Jenni Elliott

If you’ve left your bedroom in the last month, you will have heard of Netflix’s new documentary, Making a Murderer. Based on the successful did-he-didn’t-he formula of Serial, the documentary focusses on Wisconsin native Steven Avery’s 18-year incarceration for a crime he was later exonerated from (he was subsequently incarcerated again, but that’s a whole other conversation). The world can’t get enough of real-life crime, it seems, with an international podcast-loving jury. But did you know that Netflix isn’t your only source of criminally-unjust entertainment? Vancouver has had its very own Innocence Project, which has been operating under your nose for years.

Mark Gervin is a full-time criminal defence lawyer and interim director of UBC’s Innocence Project. Currently overseeing 25 active cases—Gervin is literally trying to bust 25 self-proclaimed innocents out of jail—you can understand why he might not have listened to Serial yet: “I am knee-deep in these situations, I’m living it. I try to bring a few moments of levity to the spare time that I have. It’s difficult for someone like me to watch it.” We asked Gervin his thoughts on Serial and Making a Murderer—and the future of UBC’s Innocence Project.

Do you think these types of shows will affect the cases you take on?

We try not to take pressure from the public. We already put so much pressure on ourselves. Being a criminal lawyer you have to be very rational. You have to look at each case as it comes through the door and ask yourself, is there some way that we can advance this case? If the answer is no, then we can’t take the case. Even if you think that person is innocent, if there is zero way for us to advance that case—for example, if an important Crown witness has passed away or DNA that may assist in exonerating an accused may have gone missing—then we can’t take on the file, societal pressure or not.

I think these shows are great for programs like ours because so many people say to me: “You have no innocent clients.” They absolutely believe the police would not make a mistake, that the Crown would not make a mistake. They absolutely believe that if someone is in jail, they are in jail because they are guilty. These shows are starting to show the public that mistakes do happen, that innocent people are sitting in jail for crimes they never committed.

Making a Murderer shows just how difficult and emotionally-draining these cases can be for their lawyers. Could you speak to that experience?

It is devastating, but we are taught to keep our emotions out of it. If you are being ruled by your emotions as opposed to being ruled by the actual facts of the case, then you might start making mistakes on behalf of your client. You might want your client to succeed so badly that you don’t see both sides of the case. I say to my clients all the time: “I can’t guarantee you anything, I won’t guarantee you anything. The one thing I can guarantee you is I will work as hard as I humanly can,” and I do. If it doesn’t go your way, you may take a day to lick your wounds, but you also have to realize that there are five other people waiting for your help the next day.

So where can it all go wrong?

As soon as one of us thinks we are smarter than we really are. Say if I think my client is guilty and decide I’m not going to work very hard on this one, for certain that’s the guy who’s innocent. When you do criminal law, you are dealing with a human being who has family, friends, loved ones, aspirations, hopes, and dreams. Not only are you a lawyer, you are a lawyer who is representing someone who might lose a whole portion of their life to a jail cell. It’s a very real thing.

I try not to get caught up in whether I’m smart enough or not. I try to get caught up in following the process and working hard. Our justice system is one of the best in the world. It has many flaws like any other system, but we work hard to make sure the system proceeds properly. I have to believe in that, and I have to do my job.

For more, check out our feature on Ivan Henry, acquitted from a Vancouver jail after 26 years behind bars

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