|
Pre-inquiry
publicity | 2004
| Day 1 | Day
2 | Page 3 | Page
4 | Page 5: The Relentless
interrogation of Nichol John | Page
6 | Profile on Joyce
Milgaard | Got a comment? Post
it on the blog | Sigrid
MacDonald's blogspot
Commission
of Inquiry Into the Wrongful Conviction of David Milgaard:
(Page 20)
Honourable Mr. Justice Edward
P. MacCallum, Commissioner
| Commission website
| Lockyer shows similarities
with Guy Paul Morin investigation |
<
< < Page 19 | More
background (also see links on sidebar) Sask
to give inquiry another $700,000
Milgaard ordered to testify
MacCallum doesn't acceptpost traumatic stress argument
Betty Ann Adam, The
StarPhoenix, Thursday, February 09, 2006
David Milgaard has been ordered
to testify before a lawyer for the commission of inquiry into
his wrongful conviction, or lose his standing at the inquiry.
Milgaard's testimony is to
be videotaped in Vancouver on March 6, inquiry commissioner Justice
Edward MacCallum said Wednesday.
MacCallum denied Milgaard's
request to write answers to written questions.
The order complies, instead,
with a request from lawyers for police, prosecutors and Larry
Fisher, the man who is now serving a life sentence for the same
murder Milgaard was convicted of committing.
MacCallum said he was reluctant
to accept the argument that Milgaard has post traumatic stress
disorder.
He said he would not have granted
the accommodation to Milgaard to testify without appearing at
the inquiry if counsel for other parties with standing had not
suggested it.
Milgaard, 54, has said since
last fall that he doesn't want to appear before the commission
and that the thought of it makes him physically ill.
His therapist, Joel Grymaloski,
has testified that Milgaard would be harmed by having to answer
questions about his ordeal because it triggers painful memories
and sometimes causes a flight response and impulsive behaviour.
MacCallum noted Milgaard gave
paid presentations about his story to schools and universities
in the 1990s and has made public accusations against Saskatchewan's
Justice Department.
"It has not been satisfactorily
explained to me why David Milgaard, who has functioned adequately
in other venues, both public and legal, should find it so upsetting
to testify at this inquiry that he would suffer emotional harm
or perhaps bolt," MacCallum said.
Milgaard signed an undertaking
promising to appear if the commissioner found him fit to do so.
His lawyer, Hersh Wolch, said
he cannot be sure that Milgaard will testify, despite the possibility
he will lose standing, which gives his lawyer the right to question
the parties involved in his conviction and long incarceration.
"If it happens, it happens.
But to have an inquiry into how the system failed David Milgaard
and then have it attended by Larry Fisher and not David Milgaard
is kind of bizarre," Wolch said.
MacCallum rejected Wolch's
claim that Milgaard has been hospitalized as a result of testifying
about his conviction in the past. Neither Wolch, Grymaloski,
nor psychologist Patrick Baillie, produced records of such hospitalizations,
MacCallum noted.
Milgaard has issues with persons
in authority, MacCallum said, adding that is the more likely
reason why he doesn't want to testify.
"The point of the questions
will not be whether Mr. Milgaard killed Gail Miller, but whether
his words or actions led the authorities to believe he did, or
at least to suspect him; and secondly whether they should have
led to an earlier reopening of his case," MacCallum said.
Sometimes deeply traumatized
children or women must testify in court about intensely personal
matters because the public interest demands it, he said.
"We would not have required
Mr. Milgaard's testimony if we did not believe that the public
interests required it," MacCallum said.
Milgaard's mother, Joyce Milgaard
said she is glad he won't have to testify in the public hearing
room.
"I'm very grateful that
he's accepted this idea. I hope that David will go for it,"
she said.
At the same time, she is sorry
he will have to delve into his memories.
"Although the commissioner
doesn't seem to understand that David gets physically sick when
he talks about it, I've seen the results. If we try to get anything,
try to talk to David about what's going on out here at all, it's
just like a wall is erected. He gets sick. I just don't want
to go there," she said.
Commission lawyer Doug Hodson
said he hopes to question Milgaard just once, but if parties
have other questions, he may have to return to ask those.
badam@sp.canwest.com
Milgaard Inquiry
© The StarPhoenix (Saskatoon) 2006
- Milgaard trial turned
on judge's error
Tallis
Betty Ann Adam, The
StarPhoenix, Friday, February 10, 2006
A mistake by the judge at David
Milgaard's 1970 murder trial led to "a devastating turning
point," when witness Nichol John's damning statement was
put before the jury, Milgaard's former lawyer testified Thursday.
Calvin Tallis told the inquiry
into Milgaard's wrongful conviction that John was supposed to
be a star witness for the prosecution.
But John, one of two friends
travelling with the then-16-year-old Milgaard on a road trip,
refused to repeat earlier allegations she made against Milgaard.
She had signed a statement
saying she saw Milgaard grab a girl and stab her, and saw him
put a purse in a garbage can.
But at the preliminary hearing
and the trial, John said she couldn't remember what happened.
That refusal led Crown prosecutor
Bobs Caldwell to use a new section of the Canada Evidence Act
pertaining to the use of prior inconsistent statements to cast
doubt on a witness's credibility.
Caldwell and Tallis both thought
the trial jury should leave the room while they questioned John
about the damning statement.
Tallis said he wanted to show
the judge the circumstances in which John gave the statement
because it might reveal she felt pressure or was led to implicate
Milgaard in the murder.
He wanted to ask John about
being questioned by more than one police officer, being brought
to Saskatoon from Regina and kept in police custody for two nights,
being driven around the scene of the crime by police, being interrogated
by a Calgary polygrapher who showed her the victim's bloody dress
and being placed in the company of witness Ron Wilson the day
he gave an incriminating statement to police.
Tallis could also have shown
that John had previously denied memory of the murder while under
oath at the preliminary hearing and had originally said Milgaard
didn't do it, Tallis said.
If he had been allowed to show
that to the judge without the jury present, Tallis could have
argued that it would be unsafe for the jury to hear the contents
of the statement, he said.
However, Justice Alfred Bence
ruled that the prosecutor should cross-examine John about the
statement in front of the jury.
The Saskatchewan Court of Appeal
later ruled in agreement with Tallis and Caldwell and said Bence
had erred. However, the Appeal Court ruled the error was not
significant enough to reverse the verdict.
The Appeal Court laid out a
set of guidelines for applying that section of the Canada Evidence
Act, which have become known as the "Milgaard rules."
Bence's decision was disastrous
for the defence, the inquiry heard.
Instead of hearing John say
only that she remembered that their car got stuck, Milgaard and
another boy sought help, came back and then they went on their
way, the jury heard details of a murder.
The judge told the jury to
disregard the details they had heard and consider only whether
the statement showed John was untruthful when she said she didn't
remember.
The negative impression given
to the jury was compounded by the judge's obvious skepticism
of her claim of forgetfulness, Tallis recalled.
As Caldwell led John through
the damning statement, Bence interjected questions of his own,
more than once demanding that she should be able to remember
seeing the act if she had signed a statement about it.
John maintained she did not
remember. Bence more than once ordered her to stop crying.
Tallis said the judge's directives
to John sounded like the admonitions of a father and became increasingly
stern, revealing a "high degree of skepticism," which
probably influenced the jury.
Bence asked John if she had
spoken with anybody after giving the statement, which Tallis
thought gave the impression the judge thought Milgaard or someone
from his side had influenced her to back away from her allegation.
Tallis said he made sure to
establish she had not spoken to anyone from Milgaard's side.
When Tallis asked questions
to bring out the circumstances under which John gave her statement,
Bence asked questions that, Tallis said, "tended to minimize
the atmosphere I created."
Instead, the atmosphere that
developed during John's testimony helped bolster the credibility
of Ron Wilson, who had given the incriminating statement to police,
Tallis said.
By the end, Milgaard was in
a far worse position than he should have been, suggested Doug
Hodson, counsel for the inquiry. Tallis agreed.
Tallis said Milgaard's position
would even have been better if John had adopted the incriminating
statement, because he could have cross-examined her on the weaknesses
in it.
He said as it was, Tallis couldn't
ask her to explain things she said she didn't remember.
He said he also could not ask
her about a polygraph interrogation she took because he didn't
want the jury to think she had undergone a lie detector test.
By that point, Tallis said
he could not even hope that John would co-operate with him and
indicate she had been pressured because the jury might think
she was lying to protect Milgaard, he said.
"This was a devastating
turning point. . . . The reference to that statement and some
of the crucial contents, in light of the testimony of Mr. Wilson,
probably marked a turning point in the proceedings," Tallis
said.
badam@sp.canwest.com
Milgaard Inquiry
© The StarPhoenix (Saskatoon) 2006
Former Milgaard lawyer Asper
seeks standing at inquiry
Betty Ann Adam, The
StarPhoenix, Tuesday, February 21, 2006
David Asper, the lawyer who
represented David Milgaard as he sought to have his case reviewed
by the Supreme Court of Canada in the late 1980s and early 1990s,
has applied for standing and funding at the commission of inquiry
into Milgaard's wrongful conviction.
Asper has been called as a
witness to the inquiry and has been asked to review many documents
in preparing to give evidence.
He is affected by the inquiry
because other parties have or are likely to take issue with statements
he made while representing Milgaard, Asper's application states.
He also brings to the inquiry
"the unique perspective" of a defence lawyer who "had
to overcome frustrations, challenges and obstacles before justice
prevailed for his client," it states.
Asper also proffered his expertise
as a senior executive of CanWest Global Communications Corp.,
noting that questions have been raised at the inquiry about the
appropriateness of using the media in advocating for Milgaard
in the period being considered by the commission.
CanWest owns newspapers and
television stations, including The StarPhoenix and Global television
in Saskatoon.
In requesting funding, retroactive
to Nov. 22, 2005, the application states that some parties to
the inquiry were, "seeking to justify their conduct or roles
in the wrongful conviction of Mr. Milgaard and in so doing, to
cast aspersions upon those involved on Mr. Milgaard's behalf
in overturning the conviction."
Asper did not think the inquiry
would look into his performance as a person who "acted to
liberate, rather than incarcerate," Milgaard, the application
says.
As of Jan. 30, Asper's lawyer,
Donald J. Sorochan, had already logged 70.1 hours of his own
time, and 43 hours of two of his staff. The commission's funding
guidelines for witness lawyers provides only 16.3 hours for the
work done up to that time, it states.
Commissioner Justice Edward
MacCallum has not yet ruled on the application.
Milgaard Inquiry
© The StarPhoenix (Saskatoon) 2006
Appeal courts need more
powers
former Milgaard lawyer
Betty Ann Adam, The
StarPhoenix, February 22, 2006
Appeal courts should have greater
power to overturn "unsafe" verdicts, says Calvin Tallis,
David Milgaard's former lawyer who retired last year as a judge
of the Saskatchewan Court of Appeal.
After Milgaard was convicted
in 1970 of murdering Saskatoon nursing assistant Gail Miller,
Tallis appealed on the grounds the trial judge erred when he
allowed the jury to hear the contents of a witness statement
that the witness, Nichol John, no longer adopted.
John had signed a statement
saying she saw Milgaard stab a woman, but when questioned at
the preliminary hearing and at the trial, John said she couldn't
remember what happened.
Justice Alfred Bence allowed
Crown prosecutor Bobs Caldwell to cross-examine John about the
contents of the statement and then declared John a hostile witness
in front of the jury.
Bence later told the jury they
weren't allowed to consider the contents of John's statement.
The Appeal Court found Bence
had erred, but said the error was not significant enough to allow
it to overturn the jury's verdict of guilty.
"I have long thought the
standard of review is too restrictive under that section of the
(Criminal) Code," Tallis said, referring to the Appeal Court's
limited ability to say that a verdict is unreasonable or cannot
be supported by the evidence.
"Even if the Court of
Appeal has a lurking doubt about the conviction, that is not
sufficient to warrant intervention," Tallis said in response
to the question from Brian Beresh, who represents Larry Fisher
at the inquiry.
Tallis said much attention
has been paid to trial judges in wrongful conviction cases and
not enough on the role of courts of appeal.
If, after careful review of
the record, members of the Court of Appeal "are left with
such a sense of unease and disquietude that they feel the verdict
is unsafe, then there ought to be the power to intervene,"
Tallis said.
As it was, the decision of
the Appeal Court was "a hollow victory," because it
didn't overturn the conviction, Tallis said.
Tallis had little to say about
the law as it pertains to an accused person's decision to testify
in his own defence.
Tallis had advised Milgaard
not to testify because he knew Milgaard would be cross-examined
about things that would make him look bad before the jury, such
as about his drug use and his admission that he considered stealing
a woman's purse when he stopped and asked her for directions.
Tallis agreed with Milgaard's
lawyer, Hersh Wolch, that Milgaard would be damned if he did
testify and damned if he didn't.
Milgaard's failure to testify
was counted against him at the Court of Appeal, Tallis agreed.
"Isn't there something
wrong with the system or some problem, when a truly innocent
person is better off not testifying?" Wolch asked.
"Unfortunately, that's
the way the system presently works," Tallis said, noting
lawyers still have a responsibility to advise clients on whether
to testify.
Wolch pointed out that Regina
Crown prosecutor Serge Kujawa dealt with rape charges against
Larry Fisher within weeks of arguing against Milgaard's appeal
and before the Appeal Court rendered its decision.
DNA was used to help convict
Fisher in Miller's death in 1999. Milgaard was released from
prison in 1992.
Wolch asked Tallis if Kujawa
ever told him about the rapist who had confessed to attacking
women in the neighbourhood where Miller was murdered and at around
the same time. Tallis said he was not told.
Tallis also said he thinks
the law could be changed to require evidence to be kept so that
it can be tested in the future when science has progressed.
He also endorsed the idea of
having a well-funded, independent criminal case review board
and of creating a code of ethics for expert witnesses that emphasizes
that their duty to the court overrides their duty to the party
that calls them.
badam@sp.canwest.com
© The StarPhoenix (Saskatoon) 2006
Asper fought 'war':
Milgaard's liberty was up against reputationsof 'bad guys'
ex-lawyer
Betty Ann Adam, The StarPhoenix, Thursday, February 23, 2006
David Milgaard's former lawyer,
David Asper, felt he was fighting a "war of liberation"
and his enemies were the people who had put Milgaard in prison
and those who kept him there.
Asper represented Milgaard
from 1986 until just after the Supreme Court of Canada set aside
his conviction in 1992.
By then, Milgaard had spent
23 years in prison for the murder of 20-year-old Gail Miller,
who had been raped and stabbed to death. DNA evidence proved
Milgaard's innocence in 1997 and helped convict serial rapist
Larry Fisher in 1999.
Asper said Wednesday it is
regrettable that the system placed Milgaard's lawyers in a position
where they fought with no rules, other than those which govern
lawyers generally, and had to place Milgaard's right to liberty
ahead of the reputations of those who had put him in prison and
kept him there.
". . . Measured against
other interests, I think we came to the conclusion that the liberty
interest prevails," Asper said. "If there was damaging
information about someone else, about a reputation, for example,
that became subrogated to the interest of liberty.
"It is highly regrettable,
and I do regret, that rightly or wrongly, the system that we
faced put us into the position of having to resort to these means.
I wish it didn't have to be that way and I wish there was another
way and maybe in hindsight, there could have been another way,
but this was as we saw it," he said.
Asper, now the vice-president
of CanWest Global and chair of the National Post newspaper, on
Wednesday was granted standing at the commission of inquiry.
Commissioner Edward MacCallum
found that Asper's witness testimony about viewing certain witnesses,
police and lawyers as "bad guys" might provoke a reaction
that could be interpreted as an attack on his character or reputation.
"In view of the sometimes
open hostility which certain counsel and witnesses have displayed
in this inquiry, I must acknowledge the unlikelihood that the
'enemy,' in Mr. Asper's metaphor, will turn the other cheek,"
MacCallum said.
MacCallum said he will require
more information before ruling on whether to grant Asper funding
for his lawyer.
Asper said he began with faith
that the justice system would acknowledge it was operated by
fallible humans and that those with the power to correct the
mistakes would do so.
Instead, he met intransigence
at every step of the way, he said.
"When we realized that
we were not going to get co-operation, there was not going to
be an acceptance of the fallibility of the system, then the gloves
came off," he said.
Asper said he was provoked
by the Justice Department's 11-month delay in acting upon Milgaard's
first application for a review, but "hostilities" had
already begun.
"The prelude to war had
begun by then," he said.
The war required identifying
"the bad guys," and bringing in the media to take their
story to the Canadian public, he said.
Asper was of the view that
Milgaard's accusers and prosecutors had defamed him by utilizing
"the instrumentality of the state" to incarcerate him
for something that he hadn't done.
"The people with the power
and authority to do something about it weren't doing anything
about it. In my opinion that made them effectively complicit,"
he said. "I determined that we needed the people of Canada
as our allies.
"In order to co-opt the
people of Canada we needed to make our case and take certain
approaches that would be calculated to appeal to people's sense
of dignity, of freedom, of liberty and of justice."
Utilizing the media meant having
to single out "bad guys," he said.
They included Saskatoon police
detective Eddy Karst, who was a main investigator on the case,
identification officer Joe Penkala, Crown prosecutor Bobs Caldwell,
federal Justice Department officials Eugene Williams and William
Corbett, Asper said.
Some information that has come
to light at the inquiry has caused Asper to regret some of the
actions they took while operating in the dark, he said.
"We had to make some choices
and I regret that those choices had to be made, but we had placed
the freedom of an individual ahead of the reputation or other
less important interests, on balance," he said.
Corbett, a senior member of
the Department of Justice, "embarrassed himself" publicly
when he referred to those who believed in Milgaard's innocence
as being equal to those who believed that Elvis Presley was still
alive, Asper said.
Asper gave journalists "pretty
much everything we had," and hoped they would be inspired
to do their own investigations, he said.
"We challenged them to
find fault, and if none, then help us free David."
The risk was that the media
would conclude their claim was frivolous and be critical, which
could defeat Milgaard's efforts, he said.
As well, if Milgaard were guilty,
the media could find out, he said.
In going to the media, there
were no courtroom rules about what information was admissible.
Asper said they were concerned
the media attention might undermine their legal efforts but they
thought they could overcome that.
"I do believe in democracy
and I do believe in the power of the people and I do believe
that if we took our case and . . . yelled it loud enough and
enough times that we would prevail."
Milgaard Inquiry
© The StarPhoenix (Saskatoon) 2006
Asper pained by documents
hinting at killer
Betty Ann Adam, The
StarPhoenix, Friday, February 24, 2006
David Milgaard's former lawyer,
David Asper, said it is painful to realize he had documents hinting
at convicted rapist Larry Fisher's involvement in the 1969 stabbing
death of Saskatoon nursing aide Gail Miller, but did not realize
their significance.
Asper told an inquiry into
Milgaard's wrongful conviction Thursday that interview transcripts
obtained from journalist Peter Carlyle-Gordge in 1986 indicated
Fisher had a history of violent behaviour. Yet, despite clues
that were later evident, Fisher managed to slip beneath the radar
until 1990, when an anonymous tipster phoned Milgaard's lawyer,
Hersh Wolch. "As counsel, we had Fisher at that moment.
We had a rapist living in the basement of (Milgaard's accuser
Albert) Cadrain's home and missed it . . . It's painful to see
that," said Asper, who worked on Milgaard's case for Wolch's
Winnipeg law firm.
Milgaard was wrongfully convicted
of murder in Miller's death. He was cleared by DNA evidence only
after serving 23 years in prison. He had always maintained his
innocence. Fisher, who lived near the crime scene, was convicted
in 1999 of Miller's murder. Milgaard demanded an inquiry investigate
why he was wrongly convicted.
Asper, now vice-president of
Can-West Global Communications Corp. and chair of the National
Post, took over the Milgaard file in 1986. He worked on the case
for the next six years, culminating with acting as cocounsel
for Milgaard at his 1992 Supreme Court of Canada review, which
overturned Milgaard's murder conviction.
Cadrain told police Milgaard
had blood on his clothes when he came to his house -- where Larry
and Linda Fisher were living at the time -- the morning of the
murder.
In interviews with Carlyle-Gordge
in the early 1980s, however, Cadrain, his mother, Estelle, and
his brother, Dennis, noted Fisher was a "gangster type"
-- a criminal who had been caught for previous rapes. Estelle
Cadrain had also mentioned Fisher's conviction for rape.
Despite those comments, Carlyle-Gordge
did not consider Fisher a possible suspect in Miller's murder,
Carlyle-Gordge told the inquiry last year.
Asper said at the time his
firm obtained the transcripts, he didn't think anyone believed
anything Cadrain said. Nor did they think at the time that they
would be required to provide an alternate suspect in their application
for a case review.
Carlyle-Gordge had seen a police
report made within days of the murder, in which Fisher, a construction
worker, had been questioned at the bus stop where Miller usually
got on. Fisher had given his address, and said he had been at
work on the morning in question. A month later, after Milgaard
and activities at the Cadrain house became suspect, police did
not make a connection to Fisher, several former officers have
previously told the inquiry.
Carlyle-Gordge tried to find
Linda Fisher in hope that she might remember something about
the activities of the teenagers upstairs on the morning of the
murder. He placed a classified ad in the StarPhoenix in March
1983 seeking her.
He received replies from Linda
Fisher and from her thencommon-law husband, Bryan Wright, but
did not follow up on them. By that time, Carlyle-Gordge was removing
himself from the case after three years of unsuccessful efforts
to help Milgaard. He gave his materials to Joyce Milgaard and
moved to England for several years.
badam@sp.canwest.com
Milgaard Inquiry
© The StarPhoenix (Saskatoon) 2006
.
<
< < Page 19 |
page 21 > > >
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
