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Commission
of Inquiry Into the Wrongful Conviction of David Milgaard:
(Page 18)
Honourable Mr. Justice Edward
P. MacCallum, Commissioner
| Commission website
| Lockyer shows similarities
with Guy Paul Morin investigation |
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.
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page 19 > > > | More
background (also see links on sidebar) Sask
to give inquiry another $700,000
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It's all a blur. October 24,
David Milgaard came to Saskatoon with two other wrongfully convicted
-- Ron Dalton and the wife of Michel Dumont -- to bring attention
to the fact that while he had been compensated, several others
had not been.
What should have happened?
The Commission should have welcomed him, assured him that it
was important to get to the bottom of why he was so badly served
by the Justice System, and allowed him some time to address the
audience.
Instead it was a press circus.
David Milgaard said he did not want to go through the refreshing
of his memory it would take to answer questions about his actual
23 years of hell. When pressed, he said he would refuse to attend.
Commission Chair Justice McCallum
threw an authoritarian snit where he delivered Milgaard an ultimatum
-- attend OR ELSE! -- and threatened to take away funding for
counsel which is protecting his interests.
Eventually McCallum backed
down and has now set November 19 as the date when David Milgaard
must present reasons why he would not attend.
It really looks like McCallum
wants to put David Milgaard on trial for a crime for which he
has been exonerated.
Saskatchewan has even found
a way to get around double jeopardy as it thumbs its nose at
Stinchcombe and other sound prosecutorial principles.
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Secrecy hampered conviction
review
witness
Betty Ann Adam, The
StarPhoenix, Friday, November 11, 2005
A lack of transparency in the
federal Justice Department's 1990 review of David Milgaard's
murder conviction contributed to Milgaard supporters' suspicions
of a coverup, an RCMP investigator told the Milgaard inquiry
Thursday.
"It got out of control.
A lot of this could have been dealt with by some good old sit
down and let's lay the cards on the table," retired RCMP
Staff Sgt. Rick Pearson said.
Milgaard had applied Dec. 28,
1988, to review his first-degree conviction in the January 1969
death of Gail Miller in Saskatoon. The matter was in the hands
of federal Justice Department lawyer Eugene Williams, who was
based in Ottawa.
Milgaard's mother, Joyce Milgaard,
had attracted national media attention to the case, and David
was anxiously awaiting word on whether the justice minister would
dismiss the matter or refer it to the Supreme Court of Canada.
In February 1990, Milgaard's
lawyer, Hersh Wolch, received an anonymous phone tip that Larry
Fisher, who was in prison for rape, was Miller's real killer.
DNA evidence was later used to prove Milgaard's innocence in
1997 and to convict Fisher in 1999.
Wolch notified Williams, who
contacted Milgaard prosecutor Bobs Caldwell, and asked him to
see if Fisher's name was in the Miller murder investigation file.
Caldwell found a police report
that showed Fisher was one of many individuals questioned in
the days after the murder. A paragraph in a multi-page police
report showed an officer had talked to Fisher at the bus stop
where Miller usually boarded the bus.
Williams contacted Pearson,
who worked out of the Saskatoon RCMP detachment, and asked him
to look into the Fisher allegation.
Pearson said Thursday he felt
Williams did not tell him everything about the Justice Department
investigation into Milgaard's claim of wrongful conviction. He
thought that might have had something to do with restrictions
inherent in the review process, but didn't know for sure.
Pearson asked Williams for
background on the matter he was investigating, but Williams apparently
did not tell him Fisher had been questioned at a bus stop.
As a result, Pearson learned
of it in bits and pieces, thinking at one point that Joyce Milgaard
and her lawyer had information they were withholding from him.
Pearson interviewed Fisher's
ex-wife, Linda Fisher, who had told Saskatoon police 10 years
earlier that she thought Fisher might be the real killer. Saskatoon
police had not acted on the information.
By the time Pearson had reached
Linda Fisher, he found that Joyce Milgaard and a private investigator
had already interviewed her and had taken two statements from
her pertaining to Fisher's actions on the morning of the Jan.
31, 1969, murder.
Pearson said he wasn't concerned
at first that Joyce Milgaard had spoken to a witness, but as
the investigation continued, he found she had gotten to other
witnesses before he had, including Fisher's mother. He began
to worry that she might influence them or add information to
what they knew before talking to him.
When Pearson and Williams decided
it was time to approach Larry Fisher in the penitentiary, they
learned his sister had already warned him that he was a suspect
in Miller's death. That information gave Fisher time to plan
his response before the RCMP spoke with him, Pearson said.
Pearson said he tried to remain
neutral and maintained a good relationship with Milgaard's lawyers
as well as with Williams.
By that time, the spring of
1990, the Milgaards were becoming impatient for an answer to
the review application. They were convinced Fisher was the real
killer and took their case to a member of Parliament, who stated
in a newspaper article that Miller's real killer was serving
time in a Saskatchewan jail.
"Much of this issue of
the coverup and . . . all of the other issues, it created so
much publicity and created so much agony for so many people,
could have been adequately dealt with if everyone sat around
a table and not let this get out of control like it did,"
Pearson said. "So there's some transparency issues and some
real systemic issues on how this should unfold."
The inquiry now takes a one-week
break, resuming Nov. 21, when Pearson will return to the witness
stand.
© The StarPhoenix (Saskatoon)
2005
Milgaard promises to
appear at inquiry
Betty Ann Adam, The
StarPhoenix, Tuesday, November 22, 2005
David Milgaard has promised
to appear at the inquiry into his wrongful conviction if the
commissioner finds him fit to testify.
Commissioner Justice Edward
Mac-Callum ordered Milgaard to provide the undertaking after
Milgaard declared at a news conference in October that he would
not attend the inquiry and the thought of it made him physically
ill.
His lawyer, Hersh Wolch, contends
that Milgaard would be harmed by having to recall the conviction
that landed him in prison for 23 years for a crime he didn't
commit.
Commission lawyer, Doug Hodson,
told MacCallum that Milgaard has knowledge of facts that would
be helpful the inquiry as it looks into the 1969 police investigation
of the murder of nursing assistant Gail Miller and the subsequent
prosecution of the 17-year-old. The inquiry is also looking into
whether the case should have been reopened when new information
came to light.
One area of questioning would
be about the discussions between Milgaard and Calvin Tallis the
lawyer who represented him at his preliminary hearing and trial,
Hodson said Monday.
Wolch has said the commission
has access to transcripts from Milgaard's previous testimony
at the Supreme Court of Canada review of his case and at examinations
for discovery during his lawsuit against police and prosecutors.
Some of Tallis's issues were addressed at those hearings, Wolch
said Monday.
Milgaard dropped the lawsuit
after he was paid $10 million compensation in 1999.
Hodson said he met last week
with lawyers representing other parties with standing to find
out what subject areas they want to question Milgaard about.
The next day, Hodson met with
Milgaard and Wolch at the Vancouver office of Milgaard's therapist,
who has diagnosed Milgaard with post-traumatic stress disorder.
"It was a productive interview
and, indeed, Mr. Milgaard signed an undertaking," Hodson
said.
Now the inquiry awaits Wolch's
application to have Milgaard excused from testifying on medical
grounds.
"The problem with medical
reports is . . . getting a medical report is a trauma. Anytime
you interview David, you bring him back to where he was. Most
competent doctors do not want to talk to David. They don't want
to put him in that position," Wolch said.
Wolch and Hodson have yet to
set a date for the application to be heard by the commissioner.
© The StarPhoenix (Saskatoon) 2005
RCMP officer suspected Fisher
link, inquiry hears
Betty Ann Adam, The
StarPhoenix, Wednesday, November 23, 2005
The RCMP officer investigating
Larry Fisher for the federal justice department's review of David
Milgaard's first application for mercy hadn't exhausted all avenues
before then-justice minister Kim Campbell denied the application,
saying there was no evidence linking Fisher to the murder of
Gail Miller.
"There was still more
we could have pursued," retired RCMP sergeant Rick Pearson
told the Milgaard inquiry Tuesday.
Pearson suspected Fisher because
of his history as a repeat, violent rapist and because he stalled
for months to avoid providing a blood sample, undergoing a polygraph
test and giving a sworn statement about his movements in the
days around the murder.
If Fisher was innocent of the
murder, as he claimed, it seemed likely he would want to clear
his name as quickly as possible, Pearson said.
Pearson couldn't rule out the
possibility Fisher was innocent but suspicious of police because
he had been in prison for most of his adult life.
Fisher shielded himself from
the RCMP by insisting they deal with his lawyer, thereby reducing
the number of face-to-face meetings Pearson could have with him,
Pearson said.
Fisher eventually submitted
to a polygraph test in the summer of 1990 but it proved inconclusive,
mainly because Fisher was under extreme stress brought on by
media reports that named him as possibly being the real killer.
Pearson had sought Saskatoon
police files on Fisher's other sexual assaults but found the
20-year-old files no longer existed.
The Justice Department was
aware of Fisher's ex-wife's statement that she thought Fisher
was the real killer, but her suspicions were not enough to translate
into evidence against him, Pearson said.
Federal Justice Department
lawyer Eugene Williams, who had headed the review, was also aware
of an unnamed prisoner who claimed Fisher had acknowledged some
connection to Gail Miller, Pearson's notes show.
Williams had informed Pearson
the prison informant was not credible.
Williams was also concerned
that Pearson still considered Fisher a suspect after Fisher had
denied committing the murder, Pearson's notes show.
In February, 1991, Campbell
turned down Milgaard's application, saying, "No guilt or
suspicion of guilt can be attributed to Fisher in the absence
of some form of evidence linking him to the crime."
Soon after Campbell's denial,
Milgaard applied a second time, based on information assembled
by an American private investigator, Jim McClosky, whose Centurion
Ministries was dedicated to helping people who had been wrongfully
convicted.
McClosky had shown that there
were similarities between Fisher's sexual assaults and the murder
of Gail Miller.
Pearson was called to renew
his pursuit of Fisher, but this time to focus on the "similar
fact" evidence. Pearson requested an RCMP expert analyze
Fisher's known crimes and unsolved crimes in which he was suspected
and then to compare them with the Miller murder.
"It was the basis of the
suspicion that wouldn't go away," Pearson said.
Also Tuesday, Pearson said
he wondered if a strange statement signed by Gail Miller's sister
in the weeks after Milgaard became a suspect in the murder was
evidence of an alleged police cover up.
Miller's sister, Peggy, gave
police a statement in April 1969 saying that Gail had written
to Peggy the previous year from Swift Current, saying she was
dating a boy called David Milgaard.
When Pearson found the statement
in the Miller murder file, he asked Peggy about it and she denied
having made the statement. Pearson didn't press her on it because
she may have legitimately forgotten having done it and out of
consideration for her feelings. "Later on in the investigation
when there was talk of coverup by the city police, it did cross
my mind. Could this have been part of something that was a cover
up activity? "Was there a statement created?" he said.
The thought was more curiosity than a serious consideration and
Pearson never pursued it further, he said. Det. Sgt. George Reid,
who wrote out the statement that Peggy Miller signed, testified
at the inquiry in June, where he said he doesn't remember Miller
and her mother coming to the police station and giving the statement,
but it is true because it is in his report. He would have followed
his normal practice of having the witness review each page of
her statement and sign each, he said.
badam@sp.canwest.com
Milgaard supporter accepts
apology over book
Betty Ann Adam, The
StarPhoenix, Wednesday, December 07, 2005
A stalwart Milgaard supporter
gratefully accepted Joyce Milgaard's apology Tuesday after she
wrote incorrectly in her book that he had applied for the police
reward offered during the Gail Miller murder investigation.
Howard Shannon said he was
devastated when he read the untrue allegation in A Mother's Story:
The fight to free my son David, a book written by Joyce Milgaard
and journalist Peter Edwards in 2000.
"This morning Mrs. Milgaard
apologized to me. I gratefully accept that apology," Shannon
said.
Shannon had supported Joyce
Milgaard's efforts to free David by providing money for a lawyer
and sometimes for travel and other expenses. Shannon had also
recommended lawyer Tony Merchant, who had worked for Shannon's
employer, Maclean-Hunter magazines.
Shannon had also co-operated
with a plan by another Milgaard supporter, Roger Renaud, to offer
Milgaard a job in hopes it would improve his chances of getting
parole.
When the book was being written,
Joyce Milgaard had information that someone connected to Maclean-Hunter,
the company David had also worked for, had applied for the reward.
She assumed it was Shannon.
"I thought maybe the reason
he was putting in the money was because he felt guilty for applying
for the reward (and that) in hindsight he thought he shouldn't
have done that," Joyce Milgaard said in an interview Tuesday.
"I had all sorts of suspects
and suspicions," she said.
Shannon testified at the Milgaard
inquiry Tuesday that Merchant had done five times more work for
Milgaard than he charged for. Shannon said Merchant's and Renaud's
dedication to Milgaard's cause were an inspiration to him.
Joanne McLean, Joyce Milgaard's
lawyer, apologized publicly on her behalf.
McLean showed a letter of application
for the reward from a Prince George, B.C., resident who had bought
a subscription from David shortly before he turned himself in
to RCMP there.
McLean suggested that Joyce
made the mistaken assumption based on incomplete information.
Joyce Milgaard said she felt
sick when she realized her mistake just days ago. She and McLean
searched the commission's computerized document bank and found
the letter from the customer who claimed he had called police
about the teenager after buying a subscription from him.
"(Shannon and his wife)
have been so supportive. The first thing I did when he came was
apologized to him because I felt so badly and couldn't believe
that I'd been labouring under this misapprehension all these
years," Joyce Milgaard said.
After Shannon testified, he
went to Milgaard and gave her a long hug. The pair then stood
talking, with hands clasped, for several minutes.
The commission of inquiry is
looking into the investigation into Gail Miller's January 1969
death, the prosecution of David Milgaard and whether the case
should have been reopened as new information came to light. Milgaard
spent 23 years in prison before he was released in 1992. DNA
evidence was used to prove his innocence in 1997.
Shannon was a field supervisor
for Maclean-Hunter magazine subscription sales. Among the direct
sellers he oversaw was the team led by Renaud, who employed 16-year-old
David Milgaard.
The first time Shannon met
Milgaard was in Saskatoon in April 1969, the day the police took
Milgaard in for questioning and to take blood and hair samples.
Shannon spoke with his boss about the situation and they decided
to fire Milgaard because the police suspicion about an employee
looked bad for the company.
But Milgaard rejoined the team
in Edmonton a short time later, with his younger brother in tow.
Their mother had complained to Shannon's boss that David had
been fired without cause and that she would take the matter to
the labour board if he wasn't rehired.
Shannon was with Renaud's team
in Prince George in May when Shannon received a call from his
boss, who had received a telegram that there was a warrant for
Milgaard's arrest.
Shannon said he spoke with
an RCMP sergeant he knew, who wanted to send out officers to
arrest Milgaard, but Shannon convinced him to let Shannon take
Milgaard to the local RCMP detachment.
At first the RCMP couldn't
find the warrant Shannon told them about and he told them to
call the officer he had spoken to on the phone.
"What took place then
was unreal," Shannon recalled.
"The police came running
around, several of them, about six of them at least, and jumped
right over the top of the counter, great big, huge police, pounced
on David and myself and they brought out the leg irons and put
them around his legs," Shannon recalled, demonstrating.
"They took him away and
told me to leave."
It was the last time Shannon
saw Milgaard for more than a decade.
That day the radio news reported
repeatedly that an accused killer had been captured in Prince
George. Shannon said he phoned the radio station and corrected
them, saying Milgaard had surrendered voluntarily. Two hours
later, two officers arrived at Shannon's motel and told him to
get his "bunch of rabble the heck out of the community and
do it now."
Years later, Shannon joined
Renaud in visiting Milgaard in a Quebec penitentiary, during
the years Shannon was helping to support Milgaard's efforts to
gain release.
"He was absolutely a young
man growing up in the wrong place. I felt compelled to try and
get him out," Shannon said.
© The StarPhoenix (Saskatoon) 2005
Milgaard wants to testify
at inquiry by responding to written questions
Betty Ann Adam, The
StarPhoenix, Tuesday, January 17, 2006
David Milgaard is asking the
commission of inquiry looking into his wrongful conviction to
allow him to testify by responding to written questions.
His lawyer, Hersh Wolch, filed
an application Monday, requesting "an accommodation for
the receipt of his evidence" and did not ask that Milgaard
be excused from testifying, as he previously intended to do.
"The idea for accommodation
came from the commission itself, so that is encouraging,"
Wolch said.
Parties to the inquiry will
be allowed to make submissions to the commissioner, Justice Edward
MacCallum, about the application today, said commission lawyer
Doug Hodson.
The commission will decide
whether Milgaard's psychologist, Dr. Patrick Baillie, will have
to testify about Milgaard's health. If so, a date will be set
for that next week.
A report Baillie wrote was
submitted Monday along with the application for accommodation.
The report has been distributed to parties with standing but
was not made public.
MacCallum is expected to rule
on the application soon after, probably the same day, Hodson
said.
Milgaard has previously answered
thousands of questions, all of which are available to the commission.
Asking him to go over those facts again would only traumatize
him, Wolch said.
Records exist of Milgaard's
original police interviews in which he told all he remembered
about the morning of Jan. 31, 1969, when he and friends were
passing through Saskatoon and when nursing assistant Gail Miller
was murdered.
Milgaard was convicted a year
later and spent 22 years in prison before the Supreme Court of
Canada reviewed his case and he was released. DNA evidence exonerated
him in 1997 and was used to help convict Larry Fisher of the
rape and murder. Fisher is serving a life sentence for the crime.
The commission also has transcripts
of Milgaard's testimony at the Supreme Court, where he was cross-examined
by lawyers representing the Saskatchewan and federal governments.
It also has transcripts of examinations for discovery at Milgaard's
1996 civil suit against prosecutors and police officers. There,
the lawyer for former prosecutors Bobs Caldwell and Serge Kujawa
asked Milgaard approximately 1,423 questions, the lawyer for
former police officers Raymond Mackie and Charles Short asked
903 questions and former detective Ed Karst's lawyer asked him
282 questions.
If the commission or any of
the parties with standing have questions that have not already
been answered on the record nearer in time to actual events,
Wolch is asking that Milgaard receive the questions in writing
in advance.
"He's been cross-examined
by everybody so many times. Keeping in mind that he didn't do
it, what's there to cross-examine him on?" Wolch said to
reporters during a break in the hearings.
"If there is something
still unasked, let's determine what it is," Wolch said.
Milgaard previously stated
that he didn't want to testify at all because the thought of
it makes him physically ill. He has changed his position because
requesting an exemption would require that he undergo a psychiatric
assessment, which is itself a traumatizing event, Wolch said.
"David has been questioned
by so many people over the years, all of whom assumed he was
a killer and made it a horrible experience, so that just the
idea of sitting down and being questioned about his mental state
is repugnant," Wolch said.
"The inquiry was supposed
to be therapeutic, not to further damage him. That would be ironic
if the entire process that was designed to help him, keeping
in mind it was part of the (1999) compensation package, would
now harm him."
It is possible Milgaard will
come and testify in person, Wolch said.
Special consideration has been
given to other witnesses at the inquiry. Sexual assault victims
have been allowed to testify via closed circuit television and
a retired police officer, Elmer Ullrich, was allowed to answer
a commission lawyer's questions on videotape from his home in
British Columbia. The commission used part of a written statement
from him.
Wolch said former federal justice
minister Kim Campbell has more to offer the inquiry than has
Milgaard.
"She's far, far more important
than David is to what we're doing here. I don't think anybody
has ever questioned her and she has lots to answer for. She's
had no hesitation in writing a book, in which a full chapter
is devoted to David.
"(There are) lots of questions
she could answer that would be helpful to us on how the system
operates. I think she's crucial," Wolch said.
Wolch has asked commission
lawyer Doug Hodson to call Campbell.
Hodson said he is still considering
calling Campbell.
'There are issues relating
to a provincial inquiry and the extent to which it can delve
into federal matters. Those things have to be sorted out,"
Hodson said.
The inquiry heard testimony
Monday from one witness, writer Peter Carlyle-Gordge, who investigated
the Milgaard case between 1980 and 1993.
Carlyle-Gordge was a Manitoba
correspondent for Maclean's magazine who was interested in Joyce
Milgaard's efforts to exonerate her son. He became convinced
of Milgaard's innocence and eventually spent thousands of hours
working on the case, he said Monday.
He developed a "symbiotic"
relationship with Joyce Milgaard, he said.
"We were working toward
the same goal. . . . I think I was looking for the truth rather
than the big story," he said.
He wrote an essay about Joyce
Milgaard's efforts, which was published in a 1982 book called
The Winnipeg 8: The Ice-cold Hothouse. Carlyle-Gordge acknowledged
that there were some inaccuracies in the story.
He returns to the witness stand
today.
badam@sp.canwest.com
© The StarPhoenix (Saskatoon) 2006
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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
