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Commission
of Inquiry Into the Wrongful Conviction of David Milgaard:
(Page 24)
Honourable Mr. Justice Edward
P. MacCallum, Commissioner
| Commission website
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background (also see links on sidebar) Sask
to give inquiry another $700,000
Ruling leaves Milgaard
questioning fairness
Mother terms process' an exercise in futility'after MacCallum's
decision
Betty Ann Adam, The
StarPhoenix, May 03, 2006
Joyce Milgaard walked out of
the inquiry looking into the wrongful conviction of her son,
David Milgaard, on Tuesday, after Commissioner Justice Edward
MacCallum made a ruling she thought was unfair.
"Our group, we don't seem
to be being listened to by the commissioner at all in any of
the things that he's been doing. To me it's just an exercise
in futility to be here. If I'm not seeing justice and fairness
from this man, why be here?" she said.
"I think it's been evident
all along and this was just the straw that broke the camel's
back."
The ruling had to do with which
of the 12 parties with standing at the inquiry would have the
privilege of being last to cross-examine the witness, an issue
that has arisen repeatedly during the inquiry that began 17 months
ago.
MacCallum gave the privilege
of last cross-examination to the Saskatoon Police Service, rather
than to David Milgaard's lawyer, Hersh Wolch, who also wanted
to go last.
Wolch said the rule which has
prevailed throughout the inquiry has been for the party most
closely aligned with the witness to go last and that parties
with similar interests should go one after the other.
Wolch said his client is most
closely aligned to witness Paul Henderson, who believed in Milgaard's
innocence and helped gather information to persuade the federal
justice minister to order a case review at the Supreme Court
of Canada.
"I went first with a slew
of people who said negative things about David," Wolch said.
Despite Joyce Milgaard's impression
of unfairness, commission lawyer Doug Hodson said the lawyers
have usually resolved the order among themselves in a "very
fair manner."
"The commissioner has
said on a number of occasions that it should not be adversarial,
there should not be jockeying for position," Hodson said.
"The commissioner has,
from time to time, made rulings on specific witnesses. Among
counsel we've tried to put together a system that works,"
he said.
"You have competing interests
and it's always not easy to take a hard and fast rule. . . .
Certainly there will be witnesses where one party might not like
the fact they have to go sooner rather than later.
"The commissioner has
indicated that if the parties can't agree or if there isn't any
easy solution, then he will set the order."
MacCallum has been flexible
in rulings thus far.
In June 2005 MacCallum said,
"It is an advantage to be last and those whose clients are
most directly and substantially affected by the testimony of
this witness would have first claim on being last if they choose
to exercise it."
In January, he said, "Whoever
is most identified in interest with the witness goes last."
As it turned out neither Wolch
nor Joyce Milgaard's lawyer, Joanne McLean, had any questions
for the witness Tuesday.
Joyce Milgaard appeared to
see Tuesday's ruling as an indication MacCallum is siding with
parties responsible for her son's wrongful conviction.
"The commissioner's already
made up his mind that nobody did anything wrong," she said.
"Its been obvious almost from Day 1 what's happening here.
"I don't know what his
findings will be, but if this is any example of the fairness
this man has, what will I have next, because this is totally
unfair," she said.
Last fall, MacCallum ordered
David Milgaard to testify at the inquiry or lose his standing,
after Milgaard declared publicly that he would not testify.
Wolch later asked that Milgaard
be allowed to give written answers to written questions and brought
two psychologists who said it would be harmful for Milgaard to
testify at the hearing because he suffers from post traumatic
stress disorder.
MacCallum did not accept that
Milgaard suffers from the disorder but allowed him to testify
in Vancouver in a videotaped interview with Hodson because lawyers
for other parties with standing suggested it.
badam@sp.canwest.com
© The StarPhoenix (Saskatoon) 2006
Joyce Milgaard takes
the stand at son's inquiry
Betty Ann Adam, The StarPhoenix, Monday, May 08, 2006
After all the work Joyce Milgaard did to free her wrongly convicted
son from prison, she still wonders if she could have done more,
sooner.
Milgaard, who began testifying
Monday at the inquiry into David Milgaard's wrongful conviction
for the 1969 murder of Gail Miller, said she believed in the
justice system and obeyed police and her son's lawyer, who told
her to leave the information gathering to them.
"Looking back, its upsetting.
Should I have done more instead of leaving it to the police who
didn't do a good job," she said.
Ten years after David's 1970
conviction, as he lay in a hospital bed with a police gunshot
wound suffered while he was unlawfully at large, Joyce Milgaard
began investigating in earnest, to find information that would
get her son out of prison.
That led to a 12-year-long
investigation by Joyce that drew in journalists, lawyers and
eventually much of the Canadian public, as she fought to convince
the federal justice department to review David's conviction.
Her work led to the revelation
of serial rapist, Larry Fisher, who lived in the basement of
a house Milgaard had visited on the day of the murder.
The Supreme Court of Canada
quashed Milgaard's conviction in 1992. DNA evidence proved his
innocence in 1997 and was used to help convict Larry Fisher in
1999.
In 1969 David was oldest of
four children of Lorne and Joyce MIlgaard.
David was a hyperactive child
who was expelled from the church-basement kindergarten he attended,
a fact that had become a joke in the family. He was bright and
bored with school, where he was disruptive in class, getting
other students to follow his lead.
In his teen years David joined
the hippie lifestyle and often took to the road, hitchhiking
across Canada with his girlfriend, Sharon Williams.
Milgaard's parents turned to
social services for help in controlling their son and agreed
that sending him to a special school might help. That led to
his being sent to stay in a psychiatric centre The fact was later
used by Crown prosecutor Bobs Caldwell in letters written in
the 1970s to the parole board, arguing that Milgaard should not
be released from prison.
David had recently quit the
hippie lifestyle in 1969 when he was arrested for the January
31 murder. At the time of his arrest, David was selling magazine
subscriptions door to door for Maclean's magazine.
The sales job satisfied his
desire for travel, excitment and money, Joyce Milgaard recalled.
He was working in Winnipeg
when first questioned about the murder a month after it happened.
He was in Saskatoon a few weeks later and willing gave the police
hair and blood samples.
In May 1969 he was working
in Prince George, British Columbia, when he heard that police
were looking for him. His supervisor drove him to the RCMP detatchment
where he turned himself in.
Joyce Milgaard takes
the stand at inquiry into her son's wrongful conviction
Monday, May 08, 2006
SASKATOON (CP) - David Milgaard's
mother says her son was a teenager with a "wild streak"
who had turned his life around when police fingered him for a
vicious rape and murder he didn't commit.
On the stand at the public
inquiry into her son's wrongful conviction, Joyce Milgaard said
David, then 16, had a job selling magazine subscriptions for
Maclean's.
He had cut his hair and had
left the hitchhiking hippie lifestyle behind when Saskatoon nursing
aide Gail Miller was killed in 1969.
She says David had been waiting
to get a licence to sell subscriptions in British Columbia when
he decided to go on a road trip with friends that took them through
Saskatoon on the morning of the crime.
When investigators showed up
on the family's doorstep a few months later, she says she figured
one of his friends might have been involved in a murder, but
she knew her son would have never done such a thing.
David Milgaard spent 23 years
wrongfully in prison for Miller's murder.
It was a crime DNA evidence
would eventually prove he didn't commit.
Key witnesses scheduled
as Milgaard inquiry resumes
CBC News, Aug. 28, 2006
The Milgaard inquiry resumes
public sessions in Saskatoon on Monday, and is expected to hear
from key government and RCMP witnesses before wrapping up in
September.
But even with that deadline for hearing witnesses looming,
commission lawyer Doug Hodson says the inquiry will not rush.
"We will do a proper job,"
he said. "We will not compromise on any of the evidence
we get from these witnesses. We will not compromise on the rights
of any party to ask questions they think are appropriate."
The commission of inquiry was
established to find out why David Milgaard was wrongfully convicted
of a 1969 rape and murder, and spent 23 years in prison before
being exonerated.
When the inquiry's hearings
temporarily halted in June for a summer break, commissioner Edward
MacCallum made it clear that there is a strict deadline.
"Our focus is to make
sure we get all the evidence in before the end of September,"
said Hodson.
With 131 witnesses appearing
before the inquiry in the past year and a half, this has been
a lengthy process.
Even if the inquiry wraps up in September, the commissioner still
faces the task of analyzing all the evidence and writing his
report.
Former Milgaard lawyer David
Asper is expected back on the stand for Monday's session.
Milgaard Inquiry Gets
Underway Today
Monday, 28 August 2006
Former Milgaard lawyer David
Asper is scheduled to testify as the Milgaard Inquiry resumes
this afternoon in Saskatoon.
The inquiry into the wrongful
conviction of David Milgaard for the 1969 murder of Saskatoon
nursing assistant Gail Miller was supposed to wrap up in June.
Milgaard spent 23 years in jail for a crime he did not commit.
David Asper and Murray Sawatsky
are testifying at the inquiry this week. In total,
another 18 days has been set aside with the expectation that
the inquiry testimony will be complete by the end of September.
(VMF)
Asper says Justice Department
slow to reopen Milgaard case
By Betty Ann Adam
SASKATOON - David Milgaard's
former lawyer still thinks the federal Justice Department took
too long to reopen Milgaard's 1970 murder conviction.
David Asper, who represented
Milgaard between 1986 and 1992, when the Supreme Court of Canada
quashed the conviction, resumed testimony at Milgaard's wrongful-conviction
inquiry Monday.
In cross-examination by lawyer
David Frayer, who represents the Justice Department, Asper reviewed
a chronology of the application's progress that was prepared
by federal investigator Eugene Williams.
The chronology showed that
Williams investigated only the aspects of the case that were
formally presented as reasons why the case should be reopened.
As new reasons were formally presented, Williams investigated
them. At each new submission, Williams delayed providing his
report and recommendations to the minister.
Asper said Williams was aware of issues that should have justified
reopening the case sooner.
"I think we could have
talked more, and more candidly at the beginning," Asper
said.
Milgaard spent 23 years in
prison for the 1969 rape and murder of Saskatoon nursing assistant
Gail Miller. After 17 years behind bars, Milgaard wrote to the
federal justice minister in January 1986, saying he would soon
apply for a case review.
Almost three years later, in
December 1988, the application, prepared by Asper, was submitted.
More than two years later, in February 1991, then justice minister
Kim Campbell denied that application.
A second application was submitted
in August of that year, and in November 1991 Campbell referred
the matter to the Supreme Court of Canada.
Milgaard was released in April
1992, after that review, but it wasn't until 1997 that he was
exonerated by DNA evidence that also indicated the killer was
Larry Fisher, whom Milgaard's supporters had identified in 1990
as the likely perpetrator. Fisher was convicted in 1999.
- CanWest News Service
Former
Milgaard lawyer stands by condemnation of Justice Department
Betty Ann Adam, The StarPhoenix,
August 29, 2006
David Milgaard's former lawyer
said Monday he still thinks the federal Justice Department took
too long to reopen Milgaard's 1970 murder conviction.
David Asper, who represented
Milgaard between 1986 and 1992, when the Supreme Court of Canada
quashed the conviction, resumed testimony at the Milgaard inquiry
Monday.
In cross-examination by lawyer
David Frayer, who represents the federal Justice Department,
Asper reviewed a chronology of the progress of an application
that was prepared by federal investigator Eugene Williams.
The chronology showed Williams
investigated only the aspects of the case that were formally
presented as reasons why the case should be reopened. As new
reasons were formally presented, Williams investigated them.
At each new submission Williams delayed providing his report
and recommendations to then-justice minister Kim Campbell about
whether she should have the case reopened.
Asper said Williams was already
aware of issues, such as the crimes of serial rapist Larry Fisher
around the time of and in the neighbourhood of the murder for
which Milgaard was convicted, Asper said.
"We submitted sufficient
information a long time before February 1991 that would have
justified reopening the case," Asper said.
"I didn't think we had
to prove beyond a reasonable doubt that Larry Fisher committed
the crime. And we were absolutely convinced that the identification
of Fisher smashed through any threshold remaining on the . .
. application simply by the raising of an alternative perpetrator,"
Asper said.
Williams' recommendations to
the minister were also delayed by Milgaard, who wrote letters
to the justice minister saying his family would also contribute
a presentation to his application, Asper said.
Milgaard's lawyers and family
had encouraged him to concentrate on preparing a presentation
to add to the application to keep him occupied during the stressful
waiting period, the inquiry has heard.
Frayer also asked Asper a series
of questions about an October 1990 meeting he and fellow Milgaard
lawyer Hersh Wolch attended with Justice Department lawyers.
Asper had little recollection of the details.
The only accounts of the meeting
available to the commission are in a book, based on an interview
with Asper, and a letter written by Wolch to Asper, summarizing
the meeting.
According to those sources,
federal lawyers took copious notes at the meeting.
Asper's lawyer, Donald Sorokan,
took issue with the Department of Justice refusing to produce
all the relevant documents.
Commission counsel Doug Hodson
said he is aware that the federal government has at least one
letter written by Williams to another department lawyer, which
sets out what happened at the meeting.
"I'm told it's privileged
and I suspect they'll say its unconstitutional as well,"
Hodson said.
"I don't have it. I'm
not giving up on having it. The fact this line of inquiry is
taken with this witness confirms for me the relevance of that
document to this commission for that purpose," Hodson said.
The matter will be addressed
in September when Williams continues his testimony, which began
last spring, before the commission took an eight-week break.
Milgaard spent 23 years in
prison for the 1969 rape and murder of Saskatoon nursing assistant
Gail Miller. After 17 years in prison, Milgaard wrote to the
federal justice minister in January 1986, saying he would soon
apply for a case review.
Almost three years later, in
December 1988, the application, prepared by Asper, was submitted.
More than two years later, in February 1991, Campbell denied
that application.
A second application was submitted
in August of that year and in November 1991, Campbell referred
the matter to the Supreme Court.
Milgaard was released in April
1992 after that review, but it wasn't until 1997 that he was
exonerated by DNA evidence that indicated the real killer was
Fisher, whom Milgaard's supporters had identified in 1990 as
the likely perpetrator. Fisher was convicted in 1999.
How many Hurricanes?
The Brandon Sun, Tuesday,
August 29th, 2006
Canadians know David Milgaard, who spent 23 years in prison for
a murder he did not commit, as a symbol of the justice system's
failure. Americans, on the other hand, know the aforementioned
Rubin "Hurricane" Carter, a middleweight boxer wrongfully
convicted of a 1966 triple homicide, as their example of justice
denied to an individual.
There's a haunting question
hanging over the entire justice system because of both men: how
many innocent people are behind bars, or overcoming the stigma
of a criminal record, because someone in the justice system didn't
do his or her job properly?
Here in Manitoba, we have been
faced with this question during the past few weeks. A public
inquiry into the wrongful conviction of James Driskell - who
spent more than a decade behind bars for the 1990 murder of his
friend Perry Dean Harder - will resume later next month.
Lawyer questions handling
of witnesses by investigator
Betty Ann Adam, The StarPhoenix,
August 30, 2006
David Milgaard's former lawyer,
David Asper, maintains federal investigator Eugene Williams was
biased in his approach to witnesses supporting Milgaard's claim
he had been wrongfully convicted of murder.
There were significant differences
in the formal, possibly intimidating, way Williams approached
motel witness Deb Hall and Larry Fisher's ex-wife, Linda Fisher,
and his collegial approach to former Crown prosecutor Bobs Caldwell,
who handled the original case against Milgaard, Asper told the
Milgaard inquiry Tuesday.
If Williams' methods were improper,
the resulting statements would be "fruit of a poisonous
tree," Asper said.
The commission of inquiry listened to recordings of Williams'
sworn interviews with the two women in 1989, in which he consistently
spoke in a formal, polite tone. Asper said Williams asked Hall
leading questions as he probed her recollections about a motel
party in May 1969, where Milgaard was said to have re-enacted
the January 1969 murder of Saskatoon nursing assistant Gail Miller.
Hall had given a 1986 affidavit
saying witnesses George Lapchuk and Craig Melnyk lied when they
said Milgaard admitted to committing the crime. During Williams'
questioning in 1989, Hall's version of events had changed. She
gave an enhanced account of the same story given by Lapchuk and
Melnyk and said, for the first time, that Milgaard said, "I
stabbed her."
Unlike Lapchuk and Melnyk,
Hall said she didn't think Milgaard was serious, but was making
a crude joke. Asper said Williams re-phrased Hall's remarks,
changing their meaning and manipulating Hall into agreeing with
things she had not said.
"He misrepresents what
she said," Asper said.
Asper also took issue with
the way Williams questioned Linda Fisher, who had gone to Saskatoon
police in 1980 saying she thought Milgaard was innocent and her
husband, a convicted rapist, had committed the murder.
"I have difficulty with
the number of times Mr. Williams comes back over and over and
over again with Mrs. Fisher, testing the basic facts of her story,
and I interpret that as an attempt to try and shake her.
"I would also suggest
the offering to her of alternative possibilities is not the proper
role of an investigator seeking a narrative from a witness,"
Asper said.
Asper suggested Williams' questioning
was comparable to cross-examination by a lawyer defending Fisher.
Asper also noted Williams did not investigate the possibility
Linda Fisher's suspicion of her husband was correct.
Williams did not investigate
Fisher enough to discover that Fisher pleaded guilty in Regina
to crimes he committed in Saskatoon. Instead, Williams took at
face value Asper's mistaken assumption that since Fisher pleaded
guilty in Regina the crimes must have occurred there.
Williams' treatment of Caldwell
was quite different, Asper said. Williams didn't treat Caldwell
as a witness with vested interests in the outcome of Williams'
inquiries, Asper said. Williams placed Caldwell in a conflict
of interest by asking him to produce his Milgaard prosecution
file instead of treating him as a witness and having other justice
department staff produce the files, Asper said.
Justice department lawyer David
Frayer suggested Asper over-stated complaints by the two women
in a June 1990 letter to Williams. Frayer referred to previous
testimony at the inquiry where Hall and Linda Fisher were asked
about their treatment by Williams, and neither reported feeling
intimidated or abused by him.
RCMP investigator tells
Milgaard inquiry he assumed teen witnesses were lying
StarPhoenix, August 30,
2006
SASKATOON -- The RCMP
investigator appointed in 1993 to investigate allegations of
wrongdoing by police and justice officials after David Milgaard
was freed from jail testified Wednesday he simply assumed two
teens key to the case were lying.
Insp. Murray Sawatsky characterized
Nichol John and Ron Wilson - as uncooperative when they
originally said Milgaard was never out of their company long
enough to have committed the crime.
"(They were) not like
a detached witness who would give you everything they could,"
Sawatsky told the inquiry looking into Milgaard's wrongful conviction.
"In Nichol John's case,
I'm not sure whether it was simply because she was unable to
recall or, sometimes, perhaps, she felt that she could somehow
be implicated. For any number of reasons, Nichol John was not
forthright when police initially interviewed her."
After extensive questioning
by police, the then-16-year-old John signed a statement saying
she had seen Milgaard grab a girl and stab her. But at the preliminary
hearing, John said she couldn't remember what happened, and at
the trial, she refused to repeat her earlier allegations against
Milgaard.
Wilson, who was 17 at the time,
has told the inquiry he was a heavy drug user and lied when he
changed his story and told police that Milgaard was the killer.
He recanted that accusation
before the Supreme Court of Canada, saying police had manipulated
him into implicating Milgaard, and making him scared they might
blame him if he didn't finger his friend.
Sawatsky said his investigation
was not able to determine whether the Calgary interrogator brought
in to question the pair might have done something improper or
planted information to get them to make untrue statements.
Sawatsky said that was because
Calgary police no longer had Art Roberts' written notes or polygraph
charts, nor did Saskatoon city police still have the tape recording
they made of the sessions on May 23, 1969.
Roberts denied doing anything improper when he testified at the
Supreme Court of Canada in 1992. He has since died.
Sawatsky's investigation eventually
concluded the evidence did not support allegations of criminal
wrongdoing by the Saskatoon police or other justice officials.
Milgaard's mother, Joyce Milgaard, has criticized the report,
calling it a whitewash.
However, Sawatsky admitted
Wednesday he was influenced by the findings of the Supreme Court
of Canada, which said it had not heard any evidence of police
wrongdoing.
Milgaard supporters point out
the Supreme Court had refused to hear any such evidence and focused
only on facts around the crime.
Milgaard spent 23 years in
prison before being exonerated when DNA tests proved that serial
rapist Larry Fisher was the one who killed Miller.
RCMP officer says Milgaard
investigator may have acted improperly
Betty Ann Adam, CanWest
News Service; Saskatoon StarPhoenix, August 31, 2006
SASKATOON - A Calgary interrogator
brought in to question teenage witnesses in the 1969 Gail Miller
murder investigation could have done something improper or planted
information to get them to make untrue statements, an RCMP investigator
told the inquiry into the wrongful conviction of David Milgaard
on Wednesday.
Investigators were not able
to determine if such wrongdoing occurred during pivotal interviews
of Ron Wilson and Nichol John because Calgary police no longer
had Art Roberts's written notes or polygraph charts, Insp. Murray
Sawatsky said.
Roberts, who is deceased, denied
doing anything improper when he testified at a Supreme Court
of Canada hearing in 1992.
Saskatoon city police also
no longer have the tape recording they made of those sessions
on May 23, 1969, where Milgaard's traveling companions both changed
their stories and gave police information that implicated him
in the Jan. 31, 1969, murder of nursing assistant Gail Miller,
the inquiry has heard.
Sawatsky led a 1993 investigation
into allegations of wrongdoing by police and justice officials,
which the Saskatchewan government ordered after Milgaard was
released from prison in 1992 after serving 23 years for Miller's
murder. The RCMP's report concluded that available evidence did
not support allegations of criminal wrongdoing by the Saskatoon
police or other justice officials.
Sawatsky, who conducted his
investigation before 1997 DNA tests showed that Larry Fisher,
not Milgaard, was the killer, said Wednesday he was influenced
by the findings of the Supreme Court of Canada, which said it
had not heard any evidence of police wrongdoing.
Milgaard supporters point out
the Supreme Court had refused to hear any such evidence and focused
only on the facts around the crime.
In evaluating police conduct,
Sawatsky assumed the teens had something to hide and were lying.
He said John and Wilson were unco-operative when they originally
said Milgaard was never out of their company long enough to have
committed the crime.
''(They were) not like a detached
witness who would give you everything they could. That wasn't
the case here,'' he said.
''In Nichol John's case, I'm
not sure whether it was simply because she was unable to recall
or, sometimes, perhaps, she felt that she could somehow be implicated.
For any number of reasons, Nichol John was not forthright when
police initially interviewed her,'' Sawatsky said.
John was interrogated by Roberts,
who showed her photographs of the body and Miller's bloody dress.
John then suddenly remembered she had witnessed the murder, she
and Roberts have said. She later signed an 11-page statement
saying she saw Milgaard stab Miller.
John refused to repeat the
allegation from the statement at Milgaard's trial or at any subsequent
hearing.
Commission lawyer Doug Hodson asked Sawatsky why he thought a
witness would suddenly remember seeing a murder when she recalled
nothing before.
''It could be simply the skill
of the interviewer was able to convince her that she should tell
the truth,'' Sawatsky said.
NO FISHER
LINK, EX-COP SAYS
SASKATOON -- A former RCMP
inspector told the inquiry into David Milgaard's wrongful conviction
yesterday that he still doesn't see the similarities between
a string of rapes committed by Larry Fisher and his rape and
murder of nursing aide Gail Miller in 1969.
Murray Sawatsky was appointed
in 1993 to investigate allegations of wrongdoing by police and
justice officials after Milgaard was freed from jail, where he
spent 23 years for Miller's murder.
Milgaard was eventually exonerated
when DNA testing proved that Fisher was the one who did the crime.
Sawatsky said the similarities didn't sway him as he prepared
his report in 1994 -- a report that concluded neither police
nor justice officials had committed any wrongdoing.
"At the end, it was my
view (Milgaard) was responsible for the crime," Sawatsky
said.
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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
