June 17, 2011

Convicted by the Media, Sentenced by the Courts

Supporters of Nicole Kish say she is innocent and the media is guilty

by Eugene Ochs

The Dominion - http://www.dominionpaper.ca

Nicole Kish’s conviction sparked immediate backlash and a grassroots campaign to advocate for her release. On April 30, supporters carried this banner during Hamilton's march against police brutality. Photo: Ashton Grey

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HAMILTON—Nicole Kish feels like she’s “living in a bad John Grisham novel.”

Kish was convicted of second-degree murder on March 1, 2011, and sentenced to life in prison with no chance of parole for 12 years. An activist, artist and a singer-songwriter with no criminal record, Kish has maintained her innocence since the 2007 death of Ross Hammond, which occurred after a large street brawl near the Toronto intersection of Queen and Bathurst.

Friends and supporters of Kish argue the media storm around the so-called "panhandler killer" was partially responsible for her unfair trial and wrongful conviction, and they are fighting for her release.

Nicole Kish's little sister, Victoria Bivens, wears a Free Nyki t-shirt. Photo: Christine Bivens

The physical altercation that resulted in one man’s death, first described by Detective Sgt. Gary Giroux—and then reiterated by both local and national media—as being between “street kids” and “jocks,” began when a woman identified as Faith Watts allegedly asked for money from George Dranichak and Ross Hammond. On the stand at the preliminary hearings and at the trial, Dranichak testified that he and Hammond, who died of a stab wound that night, responded to Watts with sexually derogatory remarks, such as telling her to perform sexual acts if she wanted money. While on the stand, Dranichak went on to acknowledge that their persistence had fuelled the confrontation.

Nicole Kish had been walking down Queen Street that night with a large number of people celebrating her 21st birthday. She had been in Toronto only for a day prior to the altercation.

Out of the 20 witnesses to testify at the trial, not one identified Kish or saw anyone stabbed that night. In rendering his verdict, Justice Nordheimer addressed this as being inconsequential, saying, “In this case we are not dealing with direct identification but rather with circumstantial identification.”

Two witnesses did testify to seeing a woman in possession of a knife. Kish’s former co-accused, Faith Watts, testified to having pulled out a knife during the altercation and said she had done so out fear for her life and the life of her boyfriend, who witnesses testify was beaten unconscious. Additionally, a substantial amount of DNA was found on Watts’s clothing. However, Nordheimer attributed the DNA findings as being the “limitations of physical evidence,” and while he acknowledged that the knife belonged to Watts, he goes so far as to suggest the knife may have changed hands three times before its fatal use. Stating his case for conviction, he focused on Kish being stabbed, saying that since Kish had been stabbed, there’s an “irresistible inference” that she must have killed Hammond.

Several surveillance cameras were recording that night; two, however, were inexplicably lost while in police custody: the footage on one was recorded over, and the other was “lost”. The explanation Detective Giroux had provided to the courts was that the video was placed in the evidence box but by the time it came into his possession, the video was simply no longer there. Citing previous case law (R. v. La), Nordhiemer attributed the loss of that video to the “frailties of human nature.”

“It’s dumbfounding,” says Kish via telephone from the women’s prison in Kitchener, Ontario. Reflecting on her conviction and the lack of evidence to substantiate it, she emphasizes that she is not alone, saying, “To one end, I understand oppression. I understand humanity’s long history of abuse; I understand I am not the first, nor will I be the last, to be convicted of a crime I did not commit. I just don't understand why.”

“This was not a fair and impartial trial, but a politically-motivated attempt to vilify a young activist, justify draconian ‘Safe Streets’ legislation and further criminalize and marginalize youth and poor people,” says Kevin MacKay, a Professor at Mohawk College and the Executive Director of the Sky Dragon Community Development Centre in Hamilton. MacKay first met Kish when she asked if she could use the centre as a drop off location for Books to Bars, a non-profit organization she founded in Southern Ontario which donates reading and educational material to over a dozen correctional facilities. Describing Kish as being “hard-working and passionate,” MacKay grew to know her through their joint organizing of the G20 Hamilton Primer and her stage performances at the Sky Dragon. MacKay describes Kish’s trial as revealing “a desire on behalf of the police to force a conviction against massive contrary evidence,” in order to obtain the conviction that, from the very beginning, the Toronto Police had promised to the media and the public.

Furthermore, MacKay blames the mainstream media for showing an “equally disturbing level of bias and corruption” in what he describes as “erroneous reports” such as the Toronto Sun claiming Kish was identified at trial as having the knife clenched in her mouth (which she wasn’t), or the media labeling her “the panhandler killer” despite the fact that no evidence indicated that Kish had been panhandling.

Many of Kish’s supporters share this criticism of the media. Within hours of the altercation, the case was highly publicized as the “panhandler stabbing,” causing an extraordinary amount of public outcry against the city’s perceived leniency towards panhandling and the homeless. Top city and provincial officials as well as columnists and talk show hosts weighed in on the incident, calling for panhandling to be made illegal in the city. The media storm began before much was known about the case except what was included in press releases from the Toronto Police, which Kish’s mother Christine Bivens said the media treated “as gospel.”

“One of the ways they [the media] shaped the case [is that] Nicole was always referred to as the panhandler despite the fact there was absolutely no testimony that she was a panhandler,” said Bivens. “Contrast this with the portrayal of George Dranichak, purveyor of porn, and his business associate Ross Hammond, whom the media referred to as internet marketers.”

George Dranichak is an owner of a multi-level porn marketing company, which manages such sites as Uncaged Marketing and Guerrilla Traffic. Also, it came to light during the trial that while attending school in Kentucky, Dranichak settled out of court after violently assaulting an individual after forcing his way into the person's dorm. Being someone who runs a pornography marketing company and has a history of violence carries entirely different implications than being an “internet marketer,” and might have provided a very different narrative to the public discourse. However, these elements of Dranichak’s character were left out of media coverage.

When Kish was out on bail she was under a stringent publication ban that prohibited her and her family from speaking publicly about the case. Her grandmother Val Lewis says the ban affected the outcome of the case. She feels this way especially in regards to Kish’s character, saying that Kish “would fight for a cause up to but excluding violence. Violence has never been a part of her makeup. But drawing attention to wrongs always has.”

Despite the media coverage, Kish’s conviction sparked immediate backlash and a grassroots campaign to advocate for her release. Weeks after her conviction, supporters organized a show to raise awareness and funds for her appeal. They held a rally outside the courthouse immediately following Kish’s sentencing on April 4, 2011, which heard the courtroom erupt in chants of “Free Nyki!”

When asked what’s next for the Free Nyki Campaign, Bivens believes that the courts will “overturn Nicole’s conviction if [they find] it wasn’t properly based on points of law.” If this happens, it will make Kish eligible for bail pending a second trial, which is a priority for Kish’s family and supporters.

Eugene is a writer and activist living in Hamilton Ontario. He came to know Nicole Kish through both their participation in the arts and in community organizing. He currently supports the campaign to free Nyki.

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