Lance Richardson held the proof of his innocence in his hands. It was right there, on his cellphone.

In the hours after his arrest, Richardson stressed this fact to everyone he could: to the Toronto police officer who arrested him, to the lawyer he called from jail, to the justice of the peace at his bail hearing. The voice messages on his cell were proof he didn’t do it.

In them, a friend and a new acquaintance discussed details of the violent August 2014 robbery near Yorkdale subway station that Richardson had been charged for. The messages clearly established he was not one of the robbers — and they directly implicated another man, still at large.

And yet, Richardson, 29, was sent to trial and found guilty of six counts including robbery, assault causing bodily harm, and threatening to cause death.

Confused and upset, Richardson had thought everything would be cleared up in court. But as he sat in the courthouse cell, the gravity of the situation sunk in.

Despite having proof he was innocent, even though he was at least six inches taller than the suspect police had been looking for, and even after a victim testified he was just “75 per cent” sure he recognized his assailant in Richardson’s mug shot, he found himself sentenced to four years in jail.

“That’s when I was stunned,” Richardson said in an interview with the Star this week.

Jeff Carolin, Richardson’s appeal lawyer, says the conviction was enabled in part because of “tunnel vision” on the part of Toronto police. It was only years later that it was all undone, after the messages Richardson had been pointing to all along were recovered by lawyers convinced of his innocence.

In a recent court of appeal filing, a Crown prosecutor conceded Richardson’s arrest was a “miscarriage of justice.” And last month — more than five years after Richardson’s arrest — Ontario’s Court of Appeal acquitted him on all counts, dubbing the case a “wrongful conviction.”

How did a man who had proof of his own innocence end up serving 15 months in jail? The following account is based on a review of Court of Appeal documents and interviews with Carolin and Richardson.

The robbery

Around 11 p.m. on a warm August night in 2014, Andre Pal and Floryna Balagbag met up in a park behind Yorkdale station, then settled onto a bench to enjoy a late dinner. It was quiet and dark, with moderate lighting.

Suddenly, the pair was approached by two men. As the men got closer, Pal and Balagbag could see that one — he was wearing a black hoodie zipped up to hide his face — was carrying what appeared to be a gun. The other man, wearing a green hoodie, had a cleaver-like knife.

“They asked me for everything I had,” Pal testified at Richardson’s March 2017 criminal trial. “I don’t know how to process it at first. And apparently I — I think I was taking too long for an answer so I got struck over the head (with the gun, later determined to be an imitation firearm),” he said.

According to Pal and Balagbag’s accounts, the men kicked and punched them, taking his wallet and some of the contents of her purse, then ran off in the direction of the Yorkdale TTC station. As the couple lay on the ground, the men returned, apparently looking for the knife.

“Where’s the shank?” Pal recalled one man saying.

According to Balagbag’s account, the man in the green hoodie was particularly aggressive and assaulted Pal again as he looked for the knife. They called police after the men left a second time. Both she and Pal testified that they could smell alcohol on his breath.

Investigators picked up Anthony Birch after they noticed him acting suspiciously, walking into and out of the park, then appearing to toss something.

Police later found a bag containing a black hoodie and a BB gun. From that, they determined Birch was the black-hoodie assailant. He was charged in the robbery, and the search was on for his co-conspirator.

The arrest

Birch told police he could provide an alibi for the night of the robbery: his friend Lance Richardson. They had been at a party that night, he claimed.

Investigating officer Const. Julia Hung started making inquiries. Richardson had numerous prior convictions including for theft over $5,000 in 2010 and, in March of 2014, for carrying a concealed weapon.

She located two mug shots in the Toronto police database; Richardson was wearing a green hoodie in both.

Looking at the pictures, Hung later testified she saw “a lot of resemblances” between Richardson’s mug shots and the descriptions given by the victims.

Based on this and Birch’s claim he’d been with Richardson that night, Hung concluded she had grounds to arrest Richardson and charge him in the robbery.

During Richardson’s appeal, Carolin and co-counsel Nicolas Rouleau argued there were few similarities between Richardson’s photos and the suspect descriptions. For instance, Pal had said the two assailants were around the same height, between five-foot-eight and five-foot-nine. Birch, the first suspect, was indeed five-foot-seven, but Richardson is six-foot-three, at least six inches taller than the description; Hung would have seen his height recorded in the police database, they said.

The voice messages

After he was arrested on Sept. 2, 2014, Richardson immediately told Hung police had the wrong guy, and he could prove it.

On his phone, he had a series of voice messages between himself, Birch — a friend he knew by the nickname “Kemistry” — and another man he’d just met a few weeks earlier, whom he knew only as “Toti.” The day after the robbery, Richardson began receiving increasingly agitated messages on the walkie-talkie app Voxer. Toti was asking if Richardson knew where Kemistry was — he couldn’t reach him, and he hadn’t shown up for work.

At Toti’s request, Richardson asked Birch if everything was “bless.” Birch had just been released from custody — “Everything ain’t bless,” he said, complaining that Toti had gotten him “knocked” because he got careless and “dropped the blade in the field.”

There was then a flurry of voice messages — 70 relevant messages in total — back and forth between Richardson, Toti and Birch. After learning Birch had been arrested, Toti asked, “what did he say about me so far?” Richardson’s acquaintance then said he’d been “sloshed” the night before and launched into a description of the robbery that was similar to the victims’ account.

“We were up in Yorkdale ... Mans like, ‘yo we could probably make five bills,’” Toti could be heard saying in one of the recordings, according to a transcript submitted during Richardson’s appeal.

“So uhh, basically at that point, seen something, you know seen two people there, you know, just went up to them, blah blah blah blah, you know what I mean,” Toti said.

On whether he had he dropped the knife, Toti said he didn’t “slip” like that. (Pal and his mother found the knife the next day after they went back to the park to look for their possessions).

In Richardson’s mind, the recordings were proof. He played them for Hung, but she didn’t find them conclusive.

At trial, Hung told the court she couldn’t understand what was being said, and “couldn’t determine who was actually on the recording.”

Richardson also played the messages for two other officers, then insisted he was innocent at his bail hearing the following week. According to transcripts of the hearing, Richardson was “emphatic about the import of these messages,” Carolin wrote in court filings.

But Richardson’s phone was with the rest of his belonging at the Maplehurst jail, and the messages weren’t entered into evidence.

“Inexplicably, in spite of the fact that she knew that the voice recordings contained information about the robbery, (Hung) did not seize (Richardson’s) phone,” Carolin wrote in submissions for the appeal.

Richardson spent nearly a year in Maplehurst before he was granted bail ahead of his trial.

Hung declined to comment on the case in an email to the Star last month. In documents filed with the Court of Appeal, prosecutor Linda Shin said it was unclear whether Hung heard all of the messages, noting the officer had testified Richardson played her a recording that was only about 90 seconds long.

“Without the benefit of access to the entire series of audio recordings ... it is very difficult or impossible to discern the content, sender, receiver, date, time or order of the messages,” Shin wrote.

Shin also noted that Hung did attempt to identify “Toti” through police databases and checks with police in outside jurisdictions. He is still at large.

The photo lineup and trial

One day after Richardson’s arrest, Pal and Balagbag were brought in to see if they could identify him as the green-hoodie assailant.

Hung showed them a series of photos including, according to Shin, a new one of Richardson, not the older ones that had him in a green hoodie.

Balagbag did not pick out Richardson, and she spent no more time on his photos than the others. But Pal did. He chose Richardson’s photograph after looking at it for more than four minutes. At trial, Pal said he was “75 per cent” confident, “if not more,” in his choice.

Brian Cutler, an expert in eyewitness identification later retained by Carolin, noted that Pal was not asked to assess his confidence on the day of the photo lineup. His later estimate may have been “inflated,” Cutler said, because of the fact that the trial was moving ahead against the man he’d selected, though he stressed he had no direct knowledge.

Cutler also flagged the time Pal took to select Richardson — more than four minutes — noting that research shows choices made quickly “are more likely to be accurate than identification decisions made less quickly.”

Meanwhile, while he was in custody Richardson repeatedly stressed the importance of the messages to his lawyers. In a handwritten letter soon after his arrest, he wrote detailed instructions about how to unlock his phone, which was protected by a pattern sequence instead of a simple code.

“I hope it is not too hard,” he wrote.

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Richardson’s lawyers sent the phone to be analyzed but “unfortunately” their instructions to the computer forensics expert focused mainly on whether there was any exculpatory GPS evidence, according to Carolin’s appeal. Their instructions made only a general reference to the possibility that there may be relevant voice messages, Carolin said.

By the time of Birch and Richardson trial in March 2017, the Voxer messages still hadn’t been retrieved from Richardson’s phone. And so, he took the stand and described the messages as best as he could recall.

Transcripts of the proceeding show the Crown lawyer cited Richardson’s testimony as a mark against his credibility — if the messages said what he claimed, she reasoned, the officer in charge would have concluded they were valuable evidence.

Ontario Superior Court Justice Alfred O’Marra found Richardson had provided “concocted and contrived” evidence, and the judge convicted both men in June 2017, sentencing Richardson to four years in jail while giving credit for time served.

The appeal

Richardson hired Carolin for his appeal soon after, “insistent” that he didn’t commit the robbery, the lawyer recalled.

In May 2018, Carolin and his colleague Nicolas Rouleau were able to get Richardson out on bail pending appeal based on inconsistencies the lawyers said were evident in the judge’s ruling — including Pal’s lukewarm 75-per-cent confidence in the photo, Carolin said. And, realizing how central the Voxer messages were to the case, they began efforts to get a hold of the now four-year-old recordings.

The cellphone itself was gone. Richardson recalls it was returned to him at some point, but got lost among some of his belongings when they were placed in a storage locker. But the computer expert Richardson’s former lawyers had consulted still had a forensic copy, and when Carolin got that, it indeed showed a record of Voxer voices messages from Aug. 22, 2014, the day after the robbery.

Carolin then realized the app could be accessed on a computer, not just a phone. He obtained Richardson’s email and password and logged on. He paid the fee to gain access to historic messages and, at first, nothing happened. Then, suddenly, the screen began populating with all of Richardson’s old messages.

“I started listening to them, and I just couldn’t believe it,” Carolin said in an interview. The messages contained a confession from Toti and important corroborating information from Birch.

Carolin and Rouleau immediately wondered why they hadn’t been secured earlier, either by police or by Richardson’s previous lawyer, Brian Irvine. In a February 2019 letter, Rouleau detailed his concerns to Irvine:

“It appears that your investigatory efforts with Mr. Richardson’s phone only focused on possible exculpatory GPS evidence, as opposed to efforts to obtain the Voxer messages,” Rouleau wrote.

Shin, the Crown prosecutor on the appeal, later highlighted a similar concern, noting the fact that the Voxer messages “were available to defence throughout these proceedings.” After they were initially played for police, they were never again made available to the Crown or officers, she said.

Irvine declined to speak to the Star for this story because he did not have Richardson’s authorization to discuss the case. In a detailed response to Rouleau’s letter, he denied allegations he’d been ineffective, saying he’d been extremely disappointed in the outcome of the trial and had given it 100 per cent effort. He’d “lost many sleepless hours about this case,” he wrote.

Irvine had in fact begun working to find a way to overturn the conviction before Richardson was sentenced, including hiring a private investigator to obtain fresh evidence and find “Toti.”

“This trial, as you know, ended in convicting an innocent man and respectfully is wrong,” Irvine wrote.

Part of the confusion with the Voxer messages, Irvine wrote, is that he’d taken over the file from a now-retired lawyer who, Irvine understood, had listened to the messages and determined them to be “not helpful.”

Irvine said he hoped the Crown attorney’s office would “take a hard look and correctly will allow the appeal or enter an acquittal.”

Carolin says Irvine continued to aid with the appeal “as he really believed that Lance had been wrongfully convicted.”

In the appeal, Carolin and Rouleau argued the recordings showed Richardson is factually innocent. “His appeal should be allowed on the basis that his convictions amount to a miscarriage of justice,” they wrote.

Shin agreed. In a court filing, she wrote that the messages were “relevant, credible and could reasonably have been expected to affect the result at trial when considered with the other trial evidence.”

On Dec. 17, Ontario’s highest court set aside Richardson’s conviction and entered acquittals on all counts.

The aftermath

“It was a big relief,” Richardson told the Star of the acquittal. “Very big.”

But the conviction has derailed his life, particularly his work, Richardson said. Before his arrest he’d found a job working as an audio-visual installer and he had been trying to stay “out of trouble,” he said.

(Richardson asked not to be pictured in photographs for personal security reasons.)

At the time of the acquittal last month, Richardson was in custody on another matter. But he has since been released, is enjoying time with his girlfriend and his new son, and is hoping he will be able to resume the job soon. He is considering filing a lawsuit against those involved in his wrongful conviction.

Carolin said he hopes the facts of Richardson’s conviction “make their way into some kind of training for investigating officers,” saying the case raises questions about police “tunnel vision” and unreliability of eyewitness testimony.

“If not,” he said, “there’s going to be another person in Lance’s situation going to jail.”

Toronto police’s professional standards unit is reviewing the Court of Appeal decision. A spokesperson for the service said Friday that she should could not comment further on the case due to that ongoing review.

Richardson said he doesn’t feel anger, just disappointment.

“It’s kind of messed up how you’re stuck in a situation where there’s no actual justice,” he said.

He’s trying to look on the “brighter side.”

“I went through it, and it’s done, just be thankful,” he said. “Freedom is the most important thing.”