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Even as millions are spent
on this inquiry into a 37 year old murder, two prime examples
of how wrongful convictions occur are unfolding in Saskatoon.
Wilfred Hathway is having
his defence severely handicapped as prosecutor Brent Klause has
successfully obtained an order from now Chief Justice Robert
Laing to keep disclosure out of the hands of his defence team.
Denver Crawford's
memory is not being well served. Material has surfaced which
indicates Dominic McCullock's
lawyer, Mark Brayford, did not provide a vigorous defence for
his client who was convicted of killing Jaime
Wheeler. This brutal murder was described as savage, committed
by a dangerous person, by Judge Laing, even though the conviction
was for second degree murder. This raises again the 2000 conviction
of Leon Walchuk who has steadfastly
maintained his innocence in the murder of his wife and whose
appeals have been turned down, despite evidence not presented
at trial which would show serious flaws in the Crown's case.
David Milgaard
Milgaard inquiry to examine
what went wrong 36 years ago
By GRAEME SMITH, Globe
and Mail, , January 17, 2005
The lifeless body of 20-year-old
nursing assistant Gail Miller raised a lot of questions when
it was discovered in a Saskatoon alley. Many of the answers have
been found in the decades since that frigid January morning in
1969, when an icy fog hung over the Prairie city.
Who killed her? Larry Fisher
has been convicted, sentenced to life in prison and denied all
appeals. Why did he do it? He was a serial rapist, attacking
other women around Saskatoon.
But some of the most troubling
issues surrounding Ms. Miller's death have never been fully explained.
Why was 16-year-old David Milgaard wrongfully convicted? Why
was he kept in prison for 23 years despite all the evidence that
he didn't belong there?
Lawyers will start addressing
those questions today, as a 12-month Commission of Inquiry revisits
the infamous case.
Cecil Rosner, co-author of
the 1992 book When Justice Fails: The David Milgaard Story,
said he will be especially interested to hear the final months
of testimony, which are expected to address the evidence of Mr.
Fisher's guilt that somehow got overlooked or ignored during
the investigation and prosecution of Mr. Milgaard.
"Who said what? What documents
were generated at the time?" Mr. Rosner said. "How
is it that we could have convicted somebody else when this other
pattern obviously fits?"
Mr. Rosner added: "You
would have thought it would have been very clear to either police,
or prosecutors, or people in the Justice Department at the time.
For me, that's going to be very interesting, to see how those
people answer those types of questions."
Hersh Wolch, Mr. Milgaard's
lawyer at the hearings, said he will be looking for similar answers.
"It's worth providing
answers about how an innocent man was found guilty while the
guilty man went free," he said. "And it was so difficult
to reopen this case, and why was that? How can that be changed
in the future?"
Mr. Milgaard is expected to
testify, but Mr. Wolch said he doesn't expect him to attend most
of the inquiry. Now 52 years old, Mr. Milgaard has received an
apology and $10-million compensation from the Saskatchewan government.
"He squandered 23 years
of his life in prison, and he's not going to spend another year
reliving the horror," Mr. Wolch said.
Mr. Milgaard's nightmare started
soon after Ms. Miller was found raped and partly clothed on Jan.
31, 1969. She had been stabbed 14 times in the body and her throat
slashed 15 times. Mr. Milgaard was passing through Saskatoon
with two friends at the time, and suspicion fell on him when
another friend told police he had seen blood on Mr. Milgaard's
clothes.
Police found semen at the scene,
but DNA evidence didn't exist at the time. Precisely one year
after the discovery of Ms. Miller's body, Mr. Milgaard was convicted
and sentenced to life in prison.
Mr. Milgaard protested his
innocence, but his appeals were denied. He escaped twice, and
was shot in the back when he was captured the second time.
In 1991, media reports suggesting
that Mr. Fisher was the killer prompted then federal justice
minister Kim Campbell to request a Supreme Court review of the
case. Mr. Milgaard's conviction was overturned the next year,
and he was set free.
DNA tests later proved that
the semen at the crime scene didn't belong to Mr. Milgaard. A
jury found Mr. Fisher guilty of the crime in 1999.
Inquiry set to pull back
veil on Milgaard case
Betty Ann Adam, The StarPhoenix,
Saturday, January 15, 2005
The spectre of conspiracy that
has hung over the Saskatchewan justice system since the exoneration
of David Milgaard in 1997 will face the bright light of a year-long
judicial inquiry that some hope will change the way Canada deals
with claims of wrongful convictions.
The commission of inquiry that
begins Monday in Saskatoon won't simply revisit the much-travelled
path through the facts of the 1969 rape and murder of nursing
assistant Gail Miller and the prosecution of Milgaard, who was
a teenager at the time. For the first time, a full hearing will
be given to concerns raised since the late 1980s by Milgaard
and his advocates.
They say police and prosecutors
never acted on information that could have proven Milgaard's
innocence and prevented him from spending 23 years in prison.
The inquiry is scheduled to
sit for 140 days during the next 12 months. Ten parties have
standing, including retired police detective Eddie Karst, retired
prosecutors T.D.R. Caldwell and Serge Kujawa, and Larry Fisher,
who was convicted of the same crime in 1999.
"We have issues of responsibility
for David's wrongful conviction and above all, we need accountability
for (it). . . . The history of wrongful convictions is there
is no accountability. Maybe this will be the first time,"
said Toronto lawyer James Lockyer, a founding member of the Association
in Defence of the Wrongly Convicted, who will represent David's
mother, Joyce Milgaard, at the inquiry.
"Maybe it will be seen
that this proceeding was so egregious against David and the consequences
were so awful that, finally, for the first time, our system may
say, 'Who's responsible for this? And what are we going to do
about them having done it?' " Lockyer said earlier this
week in Saskatoon.
Joyce Milgaard, who has largely
become the public voice for David, has long protested the way
police and prosecutors handled Fisher's confession in late 1970
to committing four violent rapes in Saskatoon in the months before
and after Miller's death.
Fisher admitted the crimes
after he was arrested in Winnipeg in September 1970, eight months
after Milgaard was convicted of murder. Karst, the Saskatoon
homicide detective who had investigated Miller's death, went
to Winnipeg and interviewed Fisher. His notes from that meeting
have since disappeared.
In January 1971 the Saskatchewan
Court of Appeal dismissed Milgaard's appeal application and in
November of that year, the Supreme Court did the same.
One month later Fisher was
taken to Regina, where he pleaded guilty in Court of Queen's
Bench to three charges in connection with the Saskatoon assaults.
Fisher's Saskatoon victims were never notified that their attacker
was behind bars.
Lockyer, who has been involved
as an advocate in more than a dozen cases of wrongful conviction,
hopes commissioner Justice Edward MacCallum will make recommendations
to take reviews of possible wrongful convictions out of the hands
of elected federal justice ministers and give them to an independent
tribunal or review commission, whose recommendations should be
binding on government.
"If we'd had that, David
could have been out years and years ago," Joyce Milgaard
said.
"The present system is
a political, executive decision on the minister's part. He takes
the advice of his bureaucracy who purport to examine the case,"
Lockyer said.
"It's a process that simply
doesn't uncover wrongful convictions. David's case is such a
striking example of that that it's a very good springboard for
changing the system so people who are now sitting in jail for
crimes they didn't commit have some hope in the future."
Joyce Milgaard adds that prosecutors
should work in teams that include an advocate for the accused,
and that the individuals should switch roles as a case progresses
to maintain impartiality.
"So often what happens
is tunnel vision."
Saskatchewan Justice Minister
Frank Quennell said this week he doesn't know if the provincial
government will follow recommendations which may result from
the inquiry.
"I can't prejudge the
results of the inquiry. We've had inquiries in the past which
I could not have predicted the results. We know we will have
a thorough, independent investigation of all the circumstances,
from the investigation of Gail Miller's death and the conviction
of David Milgaard forward. That has not taken place before,"
he said.
"There have been investigations
by the RCMP and an inquiry of sorts by the Supreme Court, but
there has not been a comprehensive public inquiry into this matter.
Now there will be."
© The StarPhoenix (Saskatoon) 2005
A generation later, inquiry looks at why Milgaard
wrongly jailed for murder
TIM COOK, MACLEAN'S MAGAZINE,
January 13, 2005 -
(CP) - The passage of time
has done little to push Gail Miller's murder from the headlines.
It was 36 years ago that the
20-year-old nurse's aide was found raped and stabbed to death
in a back alley on a cold January morning in Saskatoon. It has
been almost as long since an innocent David Milgaard was wrongly
imprisoned for the crime. Countless news stories, a handful of
books and even a TV movie have documented the twists and turns
the case has taken in that time.
On Monday a public inquiry
will begin to review it all, marking the final chapter in one
of the biggest miscarriages of justice in modern Canadian history.
"I think it will be definitive,"
said Hersh Wolch, the lawyer representing Milgaard at the hearings.
"There's a lot that has
never been examined. What went wrong and how do we prevent this
kind of thing from happening in the future?
"There is no grey area
here. We know David is innocent, so it can't be evasive or equivocal
on those issues."
Miller's murder shocked people
in Saskatoon in January 1969. There had only been one murder
in the city in the previous two years and pressure on police
to solve the crime was intense.
Autopsy reports show Miller
had 14 stab wounds to her body and 15 slash marks on her neck.
A paring knife with the handle broken off was found beneath her
face-down body. Her belongings were strewn around the neighbourhood.
Milgaard - a 16-year-old hippie
who was spending his youth experimenting with drugs and free
love - was in the wrong place at the wrong time.
On a road trip from Regina
to Alberta with his two friends - Nichol John and Ron Wilson
- he was passing through Saskatoon as the murder took place.
The group stopped to pick up another friend, Albert Cadrain,
who lived a block and a half from where Miller's body was found.
It was Cadrain who directed
police to Milgaard. A month after the crime he came forward saying
Milgaard had blood on his clothing when he arrived at the home.
After hours of interviews with
police over a period of weeks, Wilson and John eventually implicated
their friend as well.
Wilson said he, too, saw blood
on Milgaard - something he would recant years later - and John
said she saw Milgaard stab a woman while their car was stuck
in an alley - something she has never publicly repeated.
The killer left semen at the
crime scene, but DNA was not used in the justice system then
and the evidence was loosely linked to Milgaard through blood
type.
Milgaard was convicted of first-degree
murder in 1970. His appeals were denied.
He spent 23 years in prison
proclaiming his innocence, while his mother, Joyce, worked hard
to free him.
Over the years, Joyce Milgaard
and her lawyers were able to cast suspicion on another man, Larry
Fisher - a serial rapist convicted of attacking six other women
in the same area of Saskatoon and who lived in the basement of
the Cadrain house.
In 1991 the information led
the federal justice minister of the day, Kim Campbell, to refer
Milgaard's conviction to the Supreme Court. The high court threw
it out and the Saskatchewan government stayed charges against
him.
But it wasn't until 1997 that
DNA cleared Milgaard and pointed the finger at Fisher.
Milgaard was paid $10 million
in compensation by the Saskatchewan government and Fisher was
convicted of Miller's murder in 1999.
This inquiry, headed by Alberta
Justice Edward MacCallum, was finally called last February. MacCallum
will not be able to place blame but he can make recommendations
to ensure similar mistakes don't happen again.
Preparing for the inquiry has
been a mammoth task.
Some witnesses have died -
including Cadrain, who was mistaken for a bear and shot by a
hunter while tending to marijuana fields in British Columbia
in 1995.
Inquiry staff have compiled
more than 300,000 documents for use at the hearings, many of
them already public but some that will be seen for the first
time.
"There's been a lot of
work," said Doug Hodson, the lawyer co-ordinating the inquiry.
"We have notes and transcripts of interviews that were done
10, 15, 20 years ago."
Ten parties have standing at
the inquiry, including the Saskatoon police and the provincial
Justice Department.
Hearings have been scheduled
for the next year and witnesses will testify in four phases.
The first will rebuild the
Miller murder, the investigation and Milgaard's trial, while
the second will look at post-conviction information and how the
case was reopened.
The third phase will focus
on how police and the Justice Department handled information
that came out post-conviction, while the final phase will examine
systemic issues - reasons why the system allowed Milgaard's wrongful
conviction to happen.
"This is really the first
opportunity for a full-scale examination of the post-conviction
process or lack of process depending on how you look at it,"
said James Lockyer, the lawyer representing Joyce Milgaard at
the hearings and a prominent crusader for the wrongfully convicted.
"It's such a ghastly case
and for that reason alone - as a matter of conscience - the country
has to see it examined top to bottom to see what went wrong and
how we can make sure it doesn't happen again."
There could be several high-profile
witnesses, though inquiry staff say they haven't decided who
will be subpoenaed.
Former Saskatchewan premier
Roy Romanow was attorney general in the 1970s. Milgaard's family
has alleged his department knew Fisher was a possible suspect
and tried to cover it up, though he was cleared of any wrongdoing
by an RCMP investigation in 1994.
Campbell and former prime minister
Brian Mulroney could testify, since both had interactions with
Joyce Milgaard as she tried to get her son's case reopened.
Milgaard himself will probably
testify, but Wolch said he won't attend the rest of the hearings.
"To be honest, I think
he is paying little attention to it," Wolch said. "He
wants it to stand as help so that these things don't happen in
the future, but he certainly doesn't want to be involved."
The major players in the Gail
Miller murder case:
Gail Miller: A 20-year-old
nurse's aide. Her body found the morning of Jan. 31, 1969. Raped
and stabbed to death.
David Milgaard: A 16-year-old
hippie on road trip with two friends. Passed through Saskatoon
the morning Miller was murdered. Convicted of first-degree murder
in 1970 and spent 23 years in prison. Conviction overturned in
1992. Cleared by DNA evidence in 1997. Now 52. Has standing at
the inquiry.
Larry Fisher: A serial rapist.
Lived with his wife in basement apartment of the Saskatoon home
where Milgaard picked up a friend the morning Miller was murdered.
Convicted of Miller's murder in 1999. Currently behind bars.
Now 55. Has standing at the inquiry, but that is in question.
Albert Cadrain: Lived less
than two blocks from the crime scene. Was picked up by Milgaard
and friends the morning Miller was murdered. Went to police a
month later saying he saw blood on Milgaard's clothes. Years
later, admitted feeling pressured by police. Deceased.
Ron Wilson: On the road trip
with Milgaard. After numerous interviews with police, said he
saw Milgaard with a knife and blood on his clothes. Years later,
he recanted. Now 53.
Nichol John (Demyen): Also
on the road trip. After numerous interviews with police, said
she saw Milgaard stab a woman. But at trial said she could not
remember. Prosecutors were allowed to cross-examine her with
her statement to police. Now 52.
Craig Melnyk and George Lapchuck:
Came forward in the middle of Milgaard's trial to say they saw
Milgaard re-enact the murder with a pillow in a motel room in
May 1969. Melnyk is now 52. Lapchuck is deceased.
Deborah Hall: Also in the motel
room, but didn't testify at Milgaard's trial. Years later she
swore Milgaard's re-enactment was little more than a crude joke.
Now 52.
Eddie Karst: One of the lead
detectives on the case for Saskatoon city police. Has standing
at the inquiry.
T.D.R. "Bobs" Caldwell:
Crown prosecutor at Milgaard's original trial. Has standing at
the inquiry.
Serge Kujawa: Director of public
prosecutions during original trial. Was accused by Milgaard's
supporters of trying to hide Fisher's possible involvement in
the murder. Was cleared of any wrongdoing by an RCMP investigation.
Has standing at the inquiry.
Cal Tallis: Milgaard's original
lawyer. Didn't call Milgaard to testify at trial. Now sits as
a justice on the Saskatchewan Court of Appeal.
A chronology of the Gail Miller
murder case and David Milgaard's time in prison:
Jan. 31, 1969: Nursing assistant
Gail Miller's partially clad body is found in a snowy Saskatoon
alley. She has been raped and stabbed to death. On same day Milgaard
and two friends are passing through the city while on a road
trip.
May 30, 1969: Milgaard turns
himself in to police in Prince George, B.C., after getting word
he is being linked to the case. He is charged with murder.
Jan. 31, 1970: Milgaard is
convicted and sentenced to life in prison. Subsequent appeals
are denied.
1973: Milgaard escapes from
Dorchester Penitentiary in New Brunswick. Is later captured.
1980: Milgaard does not return
to prison after being released on a day pass. He is captured
77 days later. In the process he is shot in the back.
Nov. 29, 1991: Federal Justice
Minister Kim Campbell directs Supreme Court of Canada to review
Milgaard's conviction after being presented with evidence that
another man, Larry Fisher, may have killed Miller.
Jan. 21, 1992: Milgaard testifies
to his innocence as Supreme Court begins its review. A month
later he doesn't return to his Ottawa halfway house and is put
back in prison.
April 14, 1992: Supreme Court
throws out Milgaard's conviction. He is freed after Saskatchewan
government decides not to hold new trial.
July 18, 1997: Milgaard's mother,
lawyers release British scientists' DNA tests which show Milgaard's
DNA didn't match that found at crime scene. Saskatchewan government
apologizes to Milgaard.
July 25, 1997: Fisher is charged
with the rape and first-degree murder of Miller.
May 17, 1999: Saskatchewan
government announces $10-million compensation package for Milgaard
and his family.
Oct. 12, 1999: Fisher's trial
begins in Yorkton, Sask., after his lawyer argues to have case
moved from Saskatoon to avoid potential bias among jurors.
Nov. 22, 1999: Jury finds Fisher
guilty.
Jan. 4, 2000: Fisher sentenced
to life in prison. Judge leaves decision on parole eligibility
to National Parole Board.
Sept. 29, 2003: Saskatchewan
Court of Appeal denies Fisher's bid for a new trial.
Feb. 20, 2004: Public inquiry
is formally launched to commence after Fisher's appeal to the
Supreme Court.
Aug. 26, 2004: Supreme Court
refuses to hear Fisher's appeal.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
