The trials of Glen Race
Part 2 of a cross-border legal saga,
Saturday Insight contained the first four chapters of Glen Race’s story. In May 2007, the Canadian man with a history of schizophrenia killed three strangers — two in Nova Scotia, one in New York state — and travelled 5,000 kilometres from Halifax to the U.S.-Mexican border before he was captured. Race was convicted of murder in a New York trial at which no evidence of his mental illness was presented. Sentenced to life in prison, he was later sent back to Nova Scotia to face justice there.
CHAPTER 5: NOT A CRIMINAL
In Canada, there was no murder trial.
Race admitted to killing Paul Knott and Trevor Brewster and pleaded guilty in their deaths. At issue in court was whether he should be held criminally responsible for what he did.
Two Halifax Crown attorneys spent six months combing through the details of the case full-time. They examined all evidence, visited the New York crime scene where Darcy Manor was killed, and traced Race’s movements from Nova Scotia to Texas. In the end, they decided not to contest defence lawyer Joel Pink’s request for a verdict of not criminally responsible, or NCR.
The prosecutors, veteran Paul Carver and his cocounsel Mark Heerema, didn’t have much choice. Four psychiatrists — one appointed by the court, one hired by the Crown and two hired by the defence — had all reached the same conclusion after assessing Race. They believed he was psychotic when he killed Knott and Brewster, and that his mental illness prevented him from understanding the moral wrongness of his actions.
In Canada, when experts unanimously agree that an accused did not have the mental capacity to form criminal intent, the Crown typically does not contest the defence team’s request for an NCR verdict. Instead, both sides present psychiatric evidence in a short trial, after which the judge makes a finding on criminal responsibility.
NCR is the expected verdict in such cases. The trial is largely a formality, though an important one. It is seen as an opportunity to put the facts of the case on the record for the judge to consider, and to make sure the public is informed about what happened and why.
In November 2013, Race, who had been transported to Halifax to face the charges in Canada with permission from U.S. authorities three years earlier, appeared before Justice Kevin Coady in Nova Scotia Supreme Court. Three psychiatrists testified in his five-day NCR trial.
“If the NCR defence doesn’t apply to Mr. Race, it shouldn’t apply to anybody,” Dr. Stephen Hucker, a forensic psychiatrist and professor at the University of Toronto, said at the hearing.
Hucker was one of the two experts who had been slated to testify for the defence in the New York trial before defence lawyer Mark McCormick’s last-minute change of plans. Hucker had first met Race at the Clinton County jail in the months following the killings. After the New York verdict, Hucker had reviewed the latebreaking report by state expert Dr. Angela Hegarty that had derailed the American trial, and dismissed her conclusions.
In fact, Hegarty’s report and methods had been roundly criticized by the Canadian experts, and her opinions on Race’s illness — for example, that his symptoms were more consistent with a personality disorder than psychosis — had been contradicted by American doctors who assessed Race after his conviction and unequivocally concluded that he had schizophrenia.
Hegarty had argued in her report that Race exaggerated his illness and was coached in phone calls with his parents and brother about what symptoms to emphasize. Hucker and others had a different view: they believed Glen’s family was simply encouraging him to be open about his delusions and hallucinations, and not to mask them as he had been known to do.
The Halifax prosecutors did not call Hegarty to testify.
In closing arguments at the end of the weeklong hearing, Heerema set out to answer the question often on the public’s mind in NCR cases. In his words: “How could a justice system allow someone who savagely killed two people to not go to jail?”
What is not in dispute, Heerema said, is that Race suffers from schizophrenia, “an illness that indiscriminately picks its victims.” But in order to be found not criminally responsible, the prosecutor explained, an accused must meet a strict legal definition enshrined in Section16 of the Criminal Code. It is not enough simply to have a mental illness. The law says the disorder must have been present at the time the offence was committed, not before or after.
On that requirement, all forensic assessors agreed that Race was mentally ill when he killed Paul Knott and Trevor Brewster.
The second part of the law has two branches, and the defence must prove one of them: that the illness rendered the person incapable of appreciating the nature and quality of the act, or incapable of knowing it was legally or morally wrong.
All assessors agreed Glen Race failed the first branch. He understood that by attacking Brewster and Knott, he was causing their deaths. They also agreed that Race knew he was acting against the laws of Canada. However, all concluded he did not know that what he was doing was morally wrong. They believed Race was, in Heerema’s words, “not able to rationally engage in the decision of whether to choose his morality or the morality of society.”
The law does not require absolute certainty. The threshold for proving criminal responsibility is on the “balance of probabilities” — in other words, more likely than not, or more than 50 per cent. The burden of proof is on the defence.
The law says the courts should not disregard unanimous expert opinion unless it is seriously challenged by the evidence. Heerema, recognizing this decision would rest with the judge, laid out all the inconsistencies for consideration. He argued that what Race was able to accomplish in May 2007 was “remarkable” — travelling across the U.S. without a passport, killing covertly, covering up his crimes without being detected.
Race was “highly effective and highly capable,” Heerema said. His behaviour showed evidence of planning and goaloriented thinking. He had taken out library books on Mexico in the days before his killing spree. He had made unsuccessful attempts to travel south in the past. Heerema also argued the psychiatrists didn’t have a good answer to the question of why, if Race believed the world was inhabited by vampires and demons, he didn’t kill everyone he saw.
And even though the Hegarty report had been discredited, Heerema said he found the contents of the recorded telephone conversations she relied upon troubling — in particular, calls in which Race sounded more lucid when discussing trial strategy with his family than he did during psychiatric assessments.
“I would agree that Mr. Race sometimes shows a good ability to focus on specific issues without any apparently psychotic symptoms intruding,” Hucker wrote in his report. “It is, however, not inconsistent with a psychotic diagnosis that the person may for brief periods be able to focus on some issue of importance to them.”
The experts acknowledged some inconsistencies, but ultimately concluded that delusions drove Race to do what he did. They all agreed that while he did not show overt signs of mental illness during the killing spree, his behaviour wasn’t incompatible with his history, given his intelligence and his guarded and secretive nature.
In January 2014, Coady delivered the expected verdict: not criminally responsible.
Under normal circumstances, Race would have been detained indefinitely in a psychiatric hospital for treatment, with the possibility of one day being released if he became well and was no longer deemed a significant threat to society. But the arrangement with U.S. authorities that allowed him to go to court in Nova Scotia required that he be returned to the U.S. to serve his sentence, no matter how the Canadian proceedings ended. Within hours of the verdict, he was on an RCMP plane back to New York.
CHAPTER 6: THE FALLOUT
The Nova Scotia verdict made the outcome of the New York trial all the more enraging to Glen Race’s defenders.
“In my opinion, everybody screwed up — the prosecution, the defence and the judge,” said Joel Pink, Race’s Halifax lawyer.
Pink blames the district attorney for presenting new evidence on the first day of trial. He blames the judge for refusing to grant a reasonable request for a delay in the trial. And he blames lawyer Mark McCormick for dropping the insanity defence despite Race’s well-documented history of mental illness.
“The guy is sick, OK?” Pink said. “I’ve seen many, many individuals over the years. There’s no one like Glen Race.”
Pink believes that what happened in New York never would have taken place in a Canadian court. Legal experts at home and in the U.S. who were familiar with the facts of the case but not directly involved shared his concerns.
“If Race doesn’t get a new trial, there is
something terribly wrong with their justice system,” said Bob Richardson, a Toronto criminal defence lawyer who has taken on complex mental health cases over his 30-year career.
“It does indeed look like Mr. Race got the bum’s rush out of court,” said Justice Richard Schneider, chair of the Ontario Review Board, a provincial body that oversees individuals found not criminally responsible or unfit to stand trial. “The prosecution should have been criticized for dropping such a bomb with no disclosure to the defence.”
Charles P. Ewing, a forensic psychologist, lawyer and professor at the University at Buffalo Law School, said he couldn’t understand why the judge would have denied the continuance request, particularly in a trial without a jury. He also said the last-minute change in defence would have prejudiced the case.
“I would want to know why the defence attorney changed his mind . . . and went from a defence of ‘I did it, but I was insane’ to a defence of ‘I didn’t do it’ when the trier of fact had already been made aware of the insanity plea,” Ewing said.
Race’s first attempt at seeking a new trial, a standard “direct appeal” filed in the immediate aftermath of the verdict, failed. But his brother has been working with a New York lawyer and expects to file an appeal claiming ineffective assistance of counsel before the end of the year.
“We just want a fair trial,” Doug said recently. “We want the truth of the matter to come out.”
Mark McCormick no longer practises law. Two years after the Race verdict, his licence was suspended after he failed to appear in court to produce files for an unrelated criminal appeal. He decided then to leave the profession.
“I guess you could just call it a degree of burnout,” McCormick said, speaking on the phone from his home in Franklin County, N.Y., where he manages a small golf course and referees high school and college sports. “I was ready to do something different.”
McCormick was not surprised to hear criticism or learn that the Race family plans to mount an appeal. It is “incred- ibly common,” he said, for defendants to argue ineffective assistance of counsel after a guilty verdict. Given the late disclosure of evidence, McCormick said there is no way he could have gone through all the new material in the middle of an intense trial, when he was already run ragged and getting barely three hours of sleep each night.
“I’m not sure how I could have possibly done more in the time that I had,” he said. The decision to drop the mental disorder defence may not have worked, McCormick said, but he believed at the time that it was his client’s best shot.
Pink doesn’t buy it. “You could be a first-year law student and know that circumstantial evidence was not a defence in this case,” he said, pounding his fist on a boardroom table in his Halifax office. The argument only works if the facts are consistent with some other rational conclusion, Pink said, and in this case, “there was no other rational conclusion.”
Stephen Preziosi, a New York appellate attorney who has been working with the Race family, believes they have a strong case for an appeal based on ineffective assistance of counsel.
Two laws would apply to the appeal process — state and federal. The state standard relies upon the following test: given all the evidence, facts and circumstances, was the defendant provided with meaningful representation?
The federal standard, a two-part test that falls under the Sixth Amendment of the U.S. Constitution, asks: Did the attorney’s performance fall below an objective reasonable standard? And if it did, was the defendant prejudiced by it, and would the trial outcome have been different without the substandard performance?
Appeal judges are not meant to secondguess a trial attorney’s strategic decisions, Preziosi said. A failed strategy is not enough to prove ineffective counsel.
Preziosi believes one of the strongest arguments for appeal is that McCormick abandoned the insanity defence.
“Everybody had anticipated that this would be the defence right up until the middle of trial. This was a midstream decision,” he said. “Whether or not one is going to present a defence needs to be decided before opening statements. How can you make that kind of a decision mid-trial? To me it demonstrates that he was not prepared from the beginning.
“Is it reasonable not to present a psychiatric defence when your client has a long history of this kind of behaviour? I don’t believe it is.”
As for the state’s late disclosure of the jailhouse recordings, Preziosi was baffled. “It just absolutely amazes me that these kinds of things are allowed in a court in the United States of America.”
District attorney Andrew Wylie, still lead prosecutor for Clinton County and fresh from a recent moment in the international spotlight handling a highprofile 2015 New York prison escape case, said his office believes the Race trial was fair and impartial. Despite the outcome in Canada, Wylie continues to insist Race invented his mental illness.
“It was a trial strategy that was used by the defendant. Point blank. That’s not my opinion; that’s what occurred,” Wylie said in a phone call.
“I mean, you kill two people in Canada, you then are followed by the police, you drive through Nova Scotia, you drive down to the Quebec border, you then make efforts to cover up the vehicle in Quebec, you cross over into the border into New York, you take solace in a hunting camp in upstate New York, you wait until a person arrives, you shoot, kill that person, you then drive south continuing to take plates off vehicles, then get to an area of Texas where you’re going to cross the border. Sounds like the person had a pretty good understanding and idea of what they were doing, when they were doing it and how they did it.”
Wylie dismissed the substantial amount of psychiatric evidence that concluded Race’s actions were motivated by delusions. “Whatever,” he said. “That’s basically my response to that, ma’am.” He refused to respond to a detailed followup email.
Wylie’s perspective underscores the challenge in presenting a mental disorder defence in the state of New York, where only seven people charged with murder have been found not responsible by reason of mental disease or defect after trial over the past decade.
“If anybody was gonna reach him, it was gonna be me, but I didn’t succeed in that.” DONNA RACE GLEN’S MOTHER
“It’s a very, very tough case to make,” said Ewing. “And it’s especially tough in the rural upstate counties. People just don’t buy it. They don’t believe it. They don’t believe in it.”
Juries are tough. But U.S. lawyers consulted for this story said they would avoid choosing a judge-alone trial in an insanity case, primarily because judges in New York, unlike in Canada, are elected, and there is a sense that political considerations may make them hesitant to rule against popular opinion.
Ultimately, Ewing said, the argument in the Race case — not guilty versus not responsible — may not have changed the outcome. But he agreed with what Race’s supporters have been arguing for years: a fair trial would have allowed him to make his case.
CHAPTER 7: MEET GLEN RACE
With its nine-metre concrete walls and red-capped turrets, the Attica Correctional Facility, one of America’s most notorious prisons, has the aura of a medieval castle. The maximum-security institution sits on a country road in upstate New York. It houses roughly 2,000 inmates and was the site of a 1971uprising that left 43 people dead.
Beyond the walls, past half a dozen security checks and inside a brick building in the inner compound, inmates sit unshackled in a large cafeteria-style visitation room at small tables arranged in rows, sharing a rare moment with their parents, wives, girlfriends and children.
On March 3, 2015, two days before his 34th birthday, Race lumbers down an aisle and takes a seat at one of the tables, facing a wall of uniformed prison guards and vending machines.
He is a large man, swollen with weight gain from the antipsychotic medication he has been forced by court order to take for the past several months. He is wearing green prison sweats. His hair is slicked back with gel. His brown eyes are halfclosed, narrowed suspiciously. His left wrist bears a twisted, quarter-sized scar from a pretrial suicide attempt at the Clinton County jail in which he bit through his own skin, trusting that death would allow him to walk through the jail- house walls and “reanimate” on the other side.
“I never really believed in schizophrenia from the get-go,” Race says. “I don’t believe it’s a real thing.”
He speaks haltingly, tapping his tobacco-stained fingers on his chin. Race can carry on a conversation, but his deeper thoughts tend to devolve into rambling pontifications on spirituality. Small talk is fine. He says he spends much of his time meditating in his cell. He says his father is coming to visit this week. He says he regrets dropping out of university. He mentions that he lived with his parents in Windsor, N.S., for a few years. “Before I went and killed three people,” he adds.
Even though Race does not believe in psychiatry or mental illness, his goal for the past decade has been to “get the NGRI” — to be found not guilty by reason of insanity. “I’m left with no option but to go with society’s way of looking at it,” he says. “That’s my only real chance at freedom.”
He hopes to be released so he can work on his would-be inventions, which include a kind of quick-dry underwear, a robotic arm and other creations he believes could make him a “handsome buck.”
Race believes that what doctors call insanity is actually a “spiritual psychic experience.” Hallucinations, to him, are visions. The voices in his head are real conversations with various Buddhas and deities. “It’s almost like you’re speaking to one of their astro-manifestations,” he explains.
A few months ago, Race had what he describes as a spiritual awakening. It occurred when he was being held in an observation cell, before he was forced to receive injections of the antipsychotic drug risperidone, which calms some but not all of his symptoms. “Beings,” he says, were all around him — on the walls, on the ceiling, within his reach. “It had extraordinary meaning,” he says solemnly. He hasn’t felt anything like it since, which he blames on the drugs.
Race acknowledges his crimes, but in his current state of unwellness seems to have mixed feelings about what he did. “I don’t believe in wrong choices,” he says, when those choices were guided by a “higher being.” He says regret and remorse are negative emotions. “It could all be very detrimental to a person’s state of being, to say you did something wrong.”
“The difference is now I see a reason — a very strong reason — of why I should never cause harm again.”
The reason is largely that he doesn’t want to be in jail. Race has never expressed true remorse for his crimes, which his brother, Doug, attributes to the fact that he has not been effectively treated since he became ill.
“He regrets doing what he did because it has landed him in this situation,” Doug says. “But to him the people that he killed were, sadly, they were a manifestation of his mind that was something demonic. He still believes that stuff.”
Glen may not feel regret, but his family does. Doug, 32, a salesman who lives in Calgary with his wife, often wonders how things would have played out if he hadn’t moved to Alberta the month before the killings.
“I think about those other families — the Manor, Knott and Brewster families — who actually lost loved ones and it hurts,” he says. “It hurts bad. I don’t want people to think that we don’t think about that stuff.”
Still, he says, his brother is a victim, too. “He’s a victim of his illness.”
At home in Nova Scotia, Donna Race spends much of her time smoking cigarettes and watching television in her basement den.
Sometimes she flips through a box of old letters she wrote to her son in the early days of his illness and contemplates throwing them into the wood stove, which she believes might help ease her pain. The letters remind her of how hard she tried, and how nothing worked.
“If anybody was gonna reach him it was gonna be me, but I didn’t succeed in that,” she says.
Donna, 67, has spent years dwelling on a long list of could-have-beens.
If only she could have understood Glen better. If only she could have convinced him to trust her. If only they could have stopped him from reading the antipsychiatry blogs that made him suspicious of hospitals and doctors. Show her a picture of the boys as kids and she’ll break down. She’s happiest in her garden, but even there she sometimes loses herself in thought and doubles over in a panic attack.
Mark, 65, busies himself with cooking, errands and household projects. He goes to church on Sundays. He plays pool on Thursdays. He golfs. He does the grocery shopping, makes soups and stews, bakes cookies. He fixes things around the house as soon as they need fixing. He builds birdfeeders and gives them away to friends. Keeping busy helps him cope, but Glen is always on his mind.
“I think about it all the time,” he says. “Not once a day. It’s always on my mind.”
A couple of times each year he and Donna drive to New York to see their son.
When they meet in the Attica visitation room, Mark buys a stack of microwaveable burgers from the vending machine. They play cards and chat about Glen’s inventions and life back home. Mark steers away from heavy subjects, but every once in a while Glen will allude to a future that his father knows doesn’t exist.
“He says, when I get out I think I’d wanna build a house on the top of that hill over there behind your house and have a family and everything,” Mark says. “What are you supposed to say to him? You know? You gotta downplay it because you can’t say, oh, I don’t think that’s gonna happen, Glen.”
The Race family knows the odds are against them, but in their ideal world, Glen would get a new trial. He would be found not responsible in New York, and he would be sent to a psychiatric facility for treatment. If they made it that far, Doug would fight to have his brother transferred to a Canadian institution.
The family acknowledges that Glen may never be well enough to be released from medical care, given his lack of insight, his continued suspicion of doctors and the length of time his illness has gone untreated. His father says that’s not their call.
“We still have hope that we’ll be able to get him at least the trial that he deserves,” Mark says. “What the outcome will be, we don’t know.”