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Commission
of Inquiry Into the Wrongful Conviction of David Milgaard:
(Page 21)
Kujawa
Honourable Mr. Justice Edward
P. MacCallum, Commissioner
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background (also see links on sidebar) Sask
to give inquiry another $700,000
Asper receives standing
at Milgaard inquiry
Last Updated Feb 22 2006
03:45 PM CST, CBC News
A lawyer and media executive who helped David Milgaard get out
of prison will be allowed to have his own lawyer present at the
inquiry into Milgaard's wrongful conviction.
However, for now he won't be
getting any funding.
Commissioner Edward MacCallum
ruled Wednesday he would grant David Asper limited standing
which means his lawyer can cross-examine witnesses during a portion
of the inquiry but he'll won't receive public money to
cover his costs.
Asper, one of the lawyers credited
with helping to free Milgaard in 1992 after the Supreme Court
reviewed the case, wanted the inquiry to cover his legal expenses,
including expenses incurred since last November.
However, MacCallum said Asper
didn't file any material in support of why he should get funding
beyond asking for it. For that reason, there'll be no order about
money, MacCallum said. The Commissioner added that if Asper files
a written application why he should receive funding, he'll consider
the matter further.
Standing was a different matter,
however.
Asper, part of the family that
controls the CanWest Global media chain, said he wanted standing
in part because he was concerned some of the participants in
the inquiry would try to discredit those who worked to free Milgaard.
MacCallum agreed, saying it
was entirely possible that Asper's reputation could be damaged
by testimony. He raised the possibility that Asper's own testimony
in which he suggested some witnesses in the Milgaard trial
were liars or "bad guys" might spark a negative
reaction from some inquiry participants.
"I must acknowledge the
unlikelihood that the 'enemy,' in Mr. Asper's metaphor, will
turn the other cheek," MacCallum said.
Asper fought 'war': Milgaard's
liberty was up against reputationsof 'bad guys'
ex-lawyer
Betty Ann Adam, The
StarPhoenix, 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
One time Milgaard lawyer
David Asper pained he didn't find real killer sooner
Tim Cook, Canadian Press
February 23, 2006
SASKATOON (CP) -- The team
working to overturn David Milgaard's wrongful murder conviction
could have linked Gail Miller's slaying to the actual killer
several years sooner than they did, a lawyer turned media mogul
testified Thursday.
On the stand at the inquiry
into Milgaard's case, David Asper was taken through records he
was given when he began reviewing the file as a young lawyer
in 1986. Asper is now a senior executive with CanWest Global,
one of the largest media companies in Canada.
In one transcript, Larry Fisher,
who was eventually found guilty of the crime, is referred to
as a convicted rapist and a "gangster-type'' who lived in
the basement of the home where Albert Cadrain lived.
Cadrain was the friend Milgaard
was visiting the morning Miller was murdered.
Seeing the transcript caused
Asper to pause.
"The passages you just
read are very painful to see,'' he told inquiry lawyer Doug Hodson.
"We had Fisher at that moment. We had a rapist living in
the basement of Cadrain's home and missed it.''
Determining exactly when Fisher
should have become a suspect in Miller's 1969 rape and murder
has been a big part of the inquiry.
Fisher had committed several
rapes in Saskatoon around the time Miller was killed, but he
didn't come to the attention of police until after Milgaard was
convicted.
Milgaard spent 23 years wrongfully
behind bars for the crime until the Supreme Court overturned
his conviction in 1992. Fisher was convicted nearly eight years
later on the strength of DNA evidence that also exonerated Milgaard.
The transcript read to Asper
was from a 1983 interview with Cadrain by journalist Peter Carlyle-Gordge.
Cadrain was the first person
to point police in Milgaard's direction, and Carlyle-Gordge met
with him as part of an investigation he was doing into the case.
Asper could provide little
explanation for why he missed Fisher's name when he reviewed
the interview in 1986, only saying that everything Cadrain said
had to be taken with a grain of salt.
"The issue with Cadrain
was, I don't think anybody believed anything he was saying,''
Asper said.
"I think that when he
refers to Fisher as a `weirdo' and a `gangster' and a `rapist,'
probably we didn't take what Albert was saying seriously.''
Cadrain was shot and killed
in a hunting accident during the 1990s.
So far, the inquiry has heard
that Fisher's wife, Linda, went to police with her suspicions
about her husband's involvement in 1980. But that was 10 years
after Milgaard had been convicted and no followup was done.
The inquiry has also heard
that a lawyer working for the Milgaards tried to find Linda Fisher
in the early 1980s, but was unsuccessful.
Carlyle-Gordge went as far
as taking out a classified ad looking for Linda Fisher, but never
followed up the responses he got.
Larry Fisher didn't get linked
to the crime in any substantive way until 1990, when the team
reviewing Milgaard's case, including Asper, got an anonymous
tip that Fisher was the real killer.
This time the lead was followed.
Fisher's previous crimes were uncovered and the theory that he
could be the killer was taken to the Supreme Court, where Milgaard's
conviction was thrown out.
Asper also said Thursday that,
in hindsight, there are other things he would have done differently.
He said he would have pushed
to hire a professional investigator to co-ordinate a more in-depth
examination of the file.
He also suggested the friends
who testified against Milgaard at his original trial should have
been reinterviewed to clarify their stories.
Milgaard was understandably
impatient and even fired Asper several different times only to
patch things up.
"He said they moved a
mountain to put him in, how come we can't move a mountain to
get him out?'' Asper recalled.
"He didn't understand
the process. I don't think he had any sense of what we were up
against.''
Asper's testimony was to continue
Friday. After that, he is scheduled to come back before the inquiry
in April.
© Canadian Press
Fisher allowed to plead
guilty in Regina
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Feb 28, 2006.
Milgaard didn't learn of Fisher's
convictions until years later
Saskatchewan public prosecutors
brought Larry Fisher from the penitentiary in Prince Albert to
Regina to plead guilty to Saskatoon sexual assaults because it
was more convenient, a former prosecutor told the Milgaard inquiry
Monday.
David Milgaard's lawyers and
supporters have long been suspicious about the circumstances
under which the serial rapist who murdered Gail Miller was allowed
to plead guilty in Regina to four Saskatoon attacks committed
before and after the murder and in the neighbourhood of the killing.
Supporters have alleged the
Regina disposition was part of a plan to keep Fisher's conviction
secret to avoid casting doubt on Milgaard's conviction for the
murder.
Among the parties who didn't
learn about the convictions until years later were Milgaard,
his lawyer, the rape victims, the Saskatoon police and the Crown
prosecutor.
Milgaard spent 23 years in
prison for the murder before being released in 1992 after the
Supreme Court of Canada set aside the conviction, based partly
on the fact that Fisher might have been the real killer.
DNA evidence was used to help
convict Fisher of the murder in 1999 and he was sentenced to
life in prison.
Kenneth MacKay was a junior employee in the Attourney General's
department in 1970 when Fisher's Winnipeg lawyer, Lawrence Greenberg,
wrote to Saskatchewan to say Fisher would plead guilty to three
rapes and an attempted rape that had occurred in Saskatoon before
and after the January 1969 Miller murder.
MacKay's boss was Serge Kujawa, the director of public prosecutions,
who handled the inter-provincial matters, but Kujawa assigned
the less important aspect of setting up the arrangements for
Fisher's court appearance to MacKay.
MacKay had never heard of Fisher
before and didn't know anything about the offences until he obtained
the details of the charges for Kujawa from the Saskatoon police.
Greenberg arranged for his
client to plead guilty to four Saskatoon offences and the Saskatchewan
prosecutor asked for no additional prison time beyond the 13-year
sentence Fisher received that year for two Winnipeg rapes.
Milgaard's supporters have
characterized that plea bargain as suspicious.
MacKay said the 13-year sentence
was "very heavy," and said he was not surprised that
the judge did not add time to it, especially when compared with
a murder sentence that now allows offenders to apply for parole
after 15 years.
MacKay was not aware of the
Gail Miller murder, which had occurred two years earlier, before
he joined the department.
During the 1969 police investigation
into Miller's murder, the RCMP, who were assisting the Saskatoon
city police, sent detailed reports to Kujawa's office, the commission
of inquiry into Milgaard's wrongful conviction heard.
In the reports, RCMP investigators
laid out the early police theory that the rapist might be the
killer, the inquiry has seen.
Kujawa probably never read
the reports, MacKay said.
There would have been no reason
to read them while the investigation was ongoing and when Kujawa
handled Milgaard's appeal in 1970, he would have relied entirely
on the trial transcripts and notice of appeal.
Reading police reports would have needlessly "diffused"
Kujawa's efforts, MacKay said.
Although notations on the reports
show the RCMP reports were directed by someone in the office
to Kujawa, some of them appear to have been dealt with by another
prosecutor, Elizabeth McFadden, who made a note to file the reports
and initialed them.
MacKay returns to the stand
today. Kujawa, who has not been present for most of the inquiry,
attended Monday. He is expected to take the stand on Wednesday.
badam@sp.canwest.com
Former prosecutor takes
the stand
Betty Ann Adam. Leader
Post Regina, Sask.:Mar 1, 2006
SASKATOON -- The former director of public prosecutions who dealt
with David Milgaard's case within the same three year period
as he handled Larry Fisher's guilty pleas for Saskatoon rapes,
also handled 1,200 to 1,400 other files during the same period,
the Milgaard inquiry heard Tuesday.
Milgaard's lawyers and supporters
have alleged that Serge Kujawa realized that Fisher might be
the real killer of Gail Miller, the crime for which Milgaard
was wrongfully convicted. Milgaard served 23 years in prison,
partly because he refused to admit guilt to the National Parole
Board.
After the Supreme Court of
Canada reviewed Milgaard's case in 1992 and set aside the conviction,
Milgaard, his mother Joyce Milgaard and lawyer Hersh Wolch held
a news conference where they alleged Kujawa deliberately suppressed
information about Fisher's conviction to avoid raising questions
about Milgaard's conviction.
They relied upon the statements
of Michael Breckenridge, a former employee in the Attorney General's
department who said he delivered Milgaard and Fisher files to
meetings of Kujawa, Attorney General Roy Romanow and Deputy Justice
Minister, Ken Lysack.
Kujawa and others in the Saskatchewan
Justice Department have said they didn't make a connection between
the two cases. They denied having the meetings described by Breckenridge.
Breckenridge's allegations
were investigated by the RCMP in 1993 and could not be proven.
Breckenridge was still in high school at the time when Kujawa
was dealing with Fisher's conviction and Milgaard's appeal, the
commission heard Tuesday.
Breckenridge worked for the
department between 1973 and 1975, after Kujawa had concluded
his work on both matters.
As the top ranking prosecutor
in Saskatchewan and based in Regina, Kujawa handled about 400
sentencing appeals per year, 30 or 40 conviction appeals and
about six trials per year. He also dealt with inter-provincial
matters and answered legal questions from prosecutors around
the province.
Kujawa said he was not involved
in the 1969 police investigation into Miller's murder or in Milgaard's
prosecution.
The RCMP assisted the Saskatoon
police in the murder investigation and sent detailed reports
to the Attorney General's department, where Kujawa worked.
The reports said Saskatoon
police suspected the killer was the same person who had recently
sexually assaulted three other young women, two of which were
in the same neighbourhood. The reports laid out the methods of
the sexual assaults showing the similarity to the murder.
Media overstepped bounds:
Kujawa
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Mar 2, 2006. p. A5
David Milgaard may have had no choice but to go to the media
if the justice system repeatedly failed him, a former top prosecutor
and outspoken media critic told the Milgaard inquiry Wednesday.
"If that is so and that's
true, maybe he or she has no choice but to do that. And maybe
the move by the media and everybody else was a thing that society
should be grateful for," Serge Kujawa said, responding to
a hypothetical question put to him by commission lawyer Doug
Hodson.
In the early 1990s, Milgaard's mother and lawyers gave frequent
interviews to the media about their efforts to have the case
referred to the Supreme Court of Canada for review.
Kujawa objected to the influence such media attention had on
the public and on the Justice Department's eventual decision
to review the case.
Milgaard spent 23 years in prison for a murder he didn't commit.
The case was reviewed in 1992 and Milgaard was released. In 1999,
DNA evidence was used to convict serial rapist Larry Fisher of
the rape and murder.
In a 1991 interview with a Winnipeg Sun reporter, Kujawa was
quoted as saying he was not concerned with Milgaard's guilt or
innocence, but with the media and lawyers "selling us down
the river."
"The whole judicial system is at issue -- it's worth more
than one person," Kujawa said in the December 1991 article.
The reporter misconstrued his meaning when she paraphrased him
saying it didn't matter if Milgaard was innocent, he said Wednesday.
"If I said that, I should
apologize because if he was innocent, it does matter. It's very
important.
"I certainly never believed
that," Kujawa said Wednesday. "I sure hope I didn't
say that."
He also apologized for referring
to Milgaard as a "kook" in the article.
Kujawa said he doesn't remember
saying the word attributed to him.
"If I did, I'm sorry because
it's improper for someone in my position to call people crazy
names. If I did, I'm sorry I did."
Kujawa reiterated his long-held
belief that the media should leave legal matters to those who
know them.
"It belonged in the justice
system and not the great media system. Justice matters should
be dealt with by the justice system, which should admit that
it's less than perfect and should be willing to review what has
been done and is now questioned," Kujawa said.
The media, "went beyond
their competence on one or two occasions," he said.
Kujawa said he didn't take
issue with the fact federal justice minister Kim Campbell reversed
an earlier decision and ordered a judicial review of Milgaard's
case. Instead, he was unhappy that Campbell had been influenced
to change her position by public pressure, which resulted from
news about the case.
"Who should influence
the Supreme Court or the minister of justice to take that step?
"A whole lot of people
who were pushing for that kind of inquiry were not qualified
to express opinions on that inquiry or the justice system or
the legal system and so they shouldn't have been acting as if
they had the last word on it.
"I question the validity
of that kind of public pressure on a judicial system. That's
pressure from an area that doesn't have the information and knowledge
and background that the justice system should have," he
said.
Kujawa also said he would have helped Milgaard's lawyers gain
access to police files in the early 1980s if they had approached
him with their concern about a miscarriage of justice.
"I'd have asked the police
to help you out as best they can and if they don't give you enough
help, come back and we'll see what more we can do," he said.
"It seems like the proper
thing to do. When you're working in the Department of Justice
you should be just."
Kujawa said he never made a connection between the Milgaard and
Larry Fisher files, which he dealt with in 1971.
In 1992, Milgaard's supporters
accused him of keeping Milgaard's lawyer in the dark about the
Fisher conviction for four Saskatoon sexual assaults, while knowing
the information might have been used to overturn Milgaard's conviction.
The public allegations resulted
in an RCMP investigation into the possibility of obstruction
of justice by Kujawa and other justice officials, including former
attorney general Roy Romanow, who later became the premier of
Saskatchewan.
A 1994 Alberta Justice Department
report on the investigation determined the allegations were unfounded.
badam@sp.canwest.com
Media should leave legal
matters alone: Kujawa
Betty Ann Adam. Leader
Post Regina, Sask.:Mar 2, 2006. p. A7
SASKTOON -- David Milgaard may have had no choice but to go to
the media if the justice system repeatedly failed him, a former
top prosecutor and outspoken media critic told the Milgaard inquiry
Wednesday.
"If that is so and that's
true, maybe he or she has no choice but to do that. And maybe
the move by the media and everybody else was a thing that society
should be grateful for," Serge Kujawa said, responding to
a hypothetical question put to him by commission lawyer Doug
Hodson.
In the early 1990s, Milgaard's
mother and lawyers gave frequent interviews to the media about
their efforts to have the case referred to the Supreme Court
of Canada for review.
Kujawa objected to the influence
such media attention had on the public and on the Justice Department's
eventual decision to review the case.
Milgaard spent 23 years in
prison for a murder he didn't commit. The case was reviewed in
1992 and Milgaard was released. In 1999, DNA evidence was used
to convict serial rapist Larry Fisher of the rape and murder.
In a 1991 interview with a
Winnipeg Sun reporter, Kujawa was quoted as saying he was not
concerned with Milgaard's guilt or innocence, but with the media
and lawyers "selling us down the river."
"The whole judicial system
is at issue -- it's worth more than one person," Kujawa
said in the December 1991 article.
The reporter misconstrued his
meaning when she paraphrased him saying it didn't matter if Milgaard
was innocent, he said Wednesday.
"If I said that, I should
apologize because if he was innocent, it does matter. It's very
important.
"I certainly never believed
that," Kujawa said Wednesday. "I sure hope I didn't
say that."
He also apologized for referring
to Milgaard as a "kook" in the article.
Kujawa said he doesn't remember
saying the word attributed to him.
"If I did, I'm sorry because
it's improper for someone in my position to call people crazy
names. If I did, I'm sorry I did."
Kujawa reiterated his long-held
belief that the media should leave legal matters to those who
know them.
"It belonged in the justice
system and not the great media system. Justice matters should
be dealt with by the justice system, which should admit that
it's less than perfect and should be willing to review what has
been done and is now questioned," Kujawa said.
The media, "went beyond
their competence on one or two occasions," he said.
Kujawa said he didn't take
issue with the fact federal justice minister Kim Campbell reversed
an earlier decision and ordered a judicial review of Milgaard's
case. Instead, he was unhappy that Campbell had been influenced
to change her position by public pressure, which resulted from
news about the case.
"Who should influence
the Supreme Court or the minister of justice to take that step?
"A whole lot of people
who were pushing for that kind of inquiry were not qualified
to express opinions on that inquiry or the justice system or
the legal system and so they shouldn't have been acting as if
they had the last word on it.
"I question the validity
of that kind of public pressure on a judicial system. That's
pressure from an area that doesn't have the information and knowledge
and background that the justice system should have" he said.
Kujawa also said he would have helped Milgaard's lawyers gain
access to police files in the early 1980s if they had approached
him with their concern about a miscarriage of justice.
"I'd have asked the police
to help you out as best they can and if they don't give you enough
help, come back and we'll see what more we can do," he said.
"It seems like the proper
thing to do. When you're working in the Department of Justice
you should be just."
Kujawa said he never made a connection between the Milgaard and
Larry Fisher files, which he dealt with in 1971.
In 1992, Milgaard's supporters
accused him of keeping Milgaard's lawyer in the dark about the
Fisher conviction for four Saskatoon sexual assaults, while knowing
the information might have been used to overturn Milgaard's conviction.
"I thought those comments
about my honesty and decency and understanding of what was going
on was highly criminal, improper, inhuman behaviour," Kujawa
said Wednesday at the inquiry into Milgaard's wrongful conviction.
"To have someone say out
there in the public that you lied or cheated or stole is not
a pleasant thing to hear."
The public allegations resulted
in an RCMP investigation into the possibility of obstruction
of justice by Kujawa and other justice officials, including former
attorney general Roy Romanow, who later became the premier of
Saskatchewan.
A 1994 Alberta Justice Department
report on the investigation determined the allegations were unfounded.
Kujawa questions DNA evidence
Betty Ann Adam, The
StarPhoenix, Friday, March 03, 2006
Former Crown prosecutor Serge
Kujawa said Thursday he still isn't sure about the DNA that linked
Larry Fisher, not David Milgaard, to murder victim Gail Miller.
"Nothing is perfectly
proven and I don't know how the substance that was tested on
those clothes got on that. I don't know where it came from,"
he told the commission of inquiry into Milgaard's wrongful conviction.
Kujawa apologized to Milgaard
the day after the DNA findings were released in 1997, but he
said Thursday he still thinks it is possible the evidence was
tampered with.
"When did it get on? How
did it get on? Was it there in '69? Or could it have been put
on later?" Kujawa said. "It's a possibility is all
I know."
He said he "didn't for
a moment" say he thought the DNA wasn't Fisher's. "My
only question is when did it get on those clothing. . . . What,
if anything was put on them, I don't know and we'll never know,"
Kujawa said.
Milgaard was convicted of murder
in the 1969 death of Miller. Kujawa argued against Milgaard's
appeal in 1970 and against his 1971 application for leave to
appeal to the Supreme Court of Canada.
He was an outspoken critic
of Milgaard's lawyers' use of the media to publicize Milgaard's
position as he sought to have his case reopened in the late 1980s
and early 1990s.
The Supreme Court set aside
Milgaard's murder conviction in 1992. In 1999, the DNA evidence
was used to help convict Fisher of Miller's murder.
Milgaard's lawyer, Hersh Wolch,
said Kujawa was less skeptical of the flawed evidence against
Milgaard than he was of the strong evidence against Fisher.
That reaction is a clear example
of tunnel vision, which is often a feature of wrongful convictions,
Wolch said.
"You're so convinced of
your position that even when, in the light of all this, you get
DNA, you still can't face the reality," Wolch said.
Wolch said he doubts the sincerity
of Kujawa's 1997 apology to Milgaard, made at a news conference
the day after the DNA findings were made public.
The commission reviewed an
internal Justice Department memo written the day the findings
were made public. The memo reported a conversation that day with
lawyer Si Halyk, who represented Kujawa, and Saskatoon prosecutor
Bobs Caldwell.
"Si also reports that
Caldwell is adjusting to this new reality, but Serge Kujawa is
not. Apparently Serge's view is you can get experts to say anything
you want and this is just another case of that," the memo
said.
"Si thinks he has Serge
under control for the time being and will stay in touch with
him to make sure he remembers to keep his mouth shut," Murray
Brown, then director of appeals, wrote.
On the stand Thursday, Kujawa
said: "My apology was, 'I'm sorry Mr. Milgaard that you
were improperly convicted. This DNA stuff has proven that you
were not the (one) who did it.' And I'm sorry this happened to
it but I don't admit to any wrongful or dishonest or improper
moves on the part of myself or anybody else that I knew of.
"Therefore it wasn't a
complete apology of, 'I'm sorry what we did to you,' because
we didn't ever mean to do it. We made a mistake," Kujawa
said.
Wolch suggested the mistake
resulted from Kujawa rejecting the possibility of Milgaard's
defence using the existence of a serial rapist operating in the
neighbourhood as evidence to help his case.
"His understanding of
similar act evidence at the time could lead to the conclusion
by a trier of evidence that he did look at
it and put it aside instead
of telling Mr. (Calvin) Tallis (Milgaard's lawyer in 1969)."
Kujawa said the evidence about
the other rapes could not have been admitted at Milgaard's trial
or appeal.
But Wolch suggested the rules
for admitting similar fact evidence would have allowed for the
jury to hear about them.
Milgaard was not in the city
when those rapes were committed.
The Supreme Court ruled in
1992 that information about the other rapes might have caused
a reasonable doubt in the minds of the jurors.
Kujawa has said he didn't know
there were other similar rapes until Fisher's lawyer wrote to
the Attorney General's office in Regina saying Fisher wanted
to plead guilty to four sexual assaults in Saskatoon.
Wolch tried to show Commissioner
Edward MacCallum that Kujawa did make a connection but decided
it was of no value and so did not give it to Milgaard's lawyer.
Kujawa acknowledged Thursday
there was a "real possibility" he did read RCMP investigation
reports that came to him during the 1969 investigation.
Those reports, some of them
initialed by Kujawa, stated the Miller murder appeared to have
been committed by the same person who had recently raped other
young women in the same neighbourhood.
One of them had statements
from three sexual assault victims attached to it.
Kujawa must have read the RCMP
reports, which all had his name written on them by someone in
the office, Wolch suggested.
Kujawa said he considered himself
a responsible worker. If so, Wolch asked, what was the point
of initialling reports before sending them for filing if he hadn't
read them?
Kujawa said he was too busy
to keep track of every investigation going on around the province.
He said the only things he read were the trial transcript, which
did not mention the other rapes, the judge's instructions to
the jury and Milgaard's notice of appeal, which outlined the
grounds of appeal.
Kujawa said he couldn't remember
if the RCMP reports were in the same file as the documents he
used.
badam@sp.canwest.com ©
The StarPhoenix (Saskatoon) 2006
Kujawa reflects old-school view of justice system
Star - Phoenix Editorial,
Saskatoon, Sask.:Mar 3, 2006
The notion that our justice
system is a machine with a closed loop design, where a law degree
is a prerequisite to be part of the apparatus, hardly seems like
a modern interpretation.
So, it is to be hoped that
the opinions expressed this week at the Milgaard inquiry by retired
Saskatchewan prosecutor Serge Kujawa are but vestigial remains
of a day when people and institutions quaked before the justice
system.
The notion that the system
can get things wrong and needs to be challenged to rethink cases
took hold in the 1960s with the Stephen Truscott case. If not
for prime minister John Diefenbaker's uneasiness with capital
punishment, Truscott's supporters may not have got the time needed
to slow down the judicial machinery revved up to send the young
man to the gallows.
As events proved, the machinery
of the police and judicial system was no better tuned nearly
a decade later, when David Milgaard got enmeshed in its gears.
Yet, all this time later, Kujawa
still remains offended that Milgaard and his supporters worked
through the media to exert pressure on the federal justice minister
to review the case.
"Justice matters should
be dealt with by the justice system, which should admit that
it's less than perfect and should be willing to review what has
been done and is now questioned," Kujawa said Wednesday
at the inquiry.
In Milgaard's case, it's difficult
to see where those within the justice system, who dismissed his
supporters out of hand, ever were willing to admit they were
less than perfect. It led to David Asper, then a junior lawyer
working for Hersch Wolch, deciding it would become necessary
to go to war against the system.
Asper's war analogy may sound
somewhat unlawyerly, but defence lawyers across Canada have found
media allies over the years in trying to clear the stone wall
the justice system puts up, especially when it comes to defending
zealous prosecutors. Careful media examination can raise questions
that lawyers who are concerned about the justice system freezing
them out cannot.
Could Richard Klassen, who
didn't finish high school, have had any chance in unravelling
the bizarre case of sexual abuse levelled against him and his
family, if there had been no sympathetic news stories every so
often about his case?
Klassen received belated compensation
from the province for the trauma his family endured, but that
same government is funding an appeal against the finding that
the Crown attorney in the case was malicious in his prosecution.
It is rare that the justice
system fires an overzealous prosecutor, although it did that
in the case of Robert Latimer when a prosecutor did nothing to
alert the court when a zealous RCMP officer tried to sniff out
potential jurors who might be sympathetic to the defence. And
that's not to forget the Martensville child abuse allegations
where the Saskatchewan justice system so far has resisted the
notion of an inquiry into why outrageous charges were taken so
far in that case. After all these years and examples of the system's
fallibility, Kujawa still sees public criticism, which could
lead to a review of certain cases, as coming from those who "don't
have the information and knowledge that the justice system should
have." Years after Milgaard was given his freedom, the conduct
of the provincial justice system still raises questions on whether
it has the motivation or willingness to learn from the past and
re-examine cases that might have involved a miscarriage of justice.
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