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Jaime
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Crawford
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silence" | Can Curtis
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Dagenais' civil claim of malicious prosecution against the RCMP
James Driskell,
2006
Ewatsky at
the Driskell Inquiry
Previous |
Driskell Inquiry Transcripts | Previous
Inquiry Reports | Dan
Lett's backgrounder
Reports on this page are
in descending order
---------
Leave the dress uniform
in the closet for inquiry
DAN LETT, Winnipeg Free
Press, August 11, 2006
WHEN Winnipeg Police Chief
Jack Ewatski strode into the James Driskell inquiry room yesterday
wearing a dark-blue business suit, you knew he might be in for
a difficult day.
Experienced police watchers
claim Ewatski is firm in his belief that his dress uniform should
not be worn to any event where anyone might try to bring the
Winnipeg Police Service into disrepute. It would be wrong, Ewatski
is thought to believe, to give those critics an opportunity to
disgrace the uniform.
Whether that was Ewatski's
motivation yesterday for dressing in civilian clothes, we may
never know. But if it was, he made a good call.
For nearly six hours yesterday,
Ewatski was grilled about his role in a review of the Perry Dean
Harder murder case, the crime for which Driskell was convicted
in 1991.
And for those six hours, Ewatski
struggled to explain why he kept secret new evidence that could
have helped Driskell win his freedom.
The chief's involvement in
the case began two years after Driskell's conviction when a series
of media stories raised concerns Driskell had been wrongly convicted.Then-inspectors
Ewatski and Bob Hall were asked to determine whether police had
acted properly in all aspects of their investigation, and to
determine if Driskell was a victim of a miscarriage of justice.
Ewatski and Hall spent six
months examining documents and interviewing witnesses. When the
review was completed in late 2003, police issued a one-line statement
indicating they had "found nothing which would lead us to
believe James Patrick Driskell was not involved in the death
of Perry Dean Harder."
When asked about the report
in the intervening years, Ewatski generally stuck to that narrow
conclusion. But at the end of his grueling examination yesterday
by inquiry counsel Michael Code, and then later by Driskell lawyer
James Lockyer, two facts were laid out for all to see.
First, the Ewatski-Hall review
had discovered that key Crown witnesses lied on the stand, that
they threatened to recant their testimony, and that a witness
received tens of thousands of dollars in compensation and a secret
deal for immunity from a pending arson charge.
And second, that despite the
fact Driskell and his lawyers had never learned any of these
facts -- facts which most agree would have helped him at the
least win a new trial -- Ewatski, Hall and the Winnipeg Police
Service did nothing to bring those discoveries to light.
Throughout the 1990s, numerous
parties tried in vain to get a full copy of the homicide review.
In 2000, after months of negotiation, Ewatski and Hall agreed
to an interview by the Free Press on the findings in their
report. Much of that interview focused on the role of a single
witness, Ray Zanidean, who testified that he was present with
Driskell when he planned the murder of Perry Harder.
In his 2000 interview, Ewatski
said "there was absolutely no arrangements made to do anything
with (Zanidean)" because no formal witness protection contract
was ever finalized.
When asked if a deal was worked
out in a less formal way to give Zanidean what he wanted without
a witness protection contract, Ewatski shook his head. "How
could we make a commitment to somebody without having that formal
process in place? The investigators do not have the authority
to say to a person, 'If you do this, if you testify, we will
do something for you.' There's no authority in place to do that."
In contrast, the inquiry heard yesterday that Ewatski and Hall
discovered Winnipeg police likely did exactly that -- offered
Zanidean immunity for a Swift Current crime without approval
of Saskatchewan Justice or the RCMP. Further, Ewatski confirmed
that he and Hall had determined Zanidean likely committed several
acts of perjury while testifying at Driskell's trial.
In a seminal moment during
this inquiry, Driskell lawyer James Lockyer asked Ewatski if
he didn't feel some obligation to get the information in his
homicide review report to Driskell, who was fighting for his
life in a federal prison. Lockyer noted that many of Driskell's
supporters had approached him to see the contents of the report.
Ewatski said it was the responsibility
of prosecutors, not police, to disclose evidence to the defence.
Lockyer then asked Ewatski if he cared whether Driskell ever
saw the new evidence.
"Did I care?" Ewatski
asked, almost stunned by the question. "I don't think it
was part of my responsibility to ensure that it was passed on
or not."
After an answer like that it's
probably a good idea that, while he remains on the inquiry's
witness stand, Ewatski keeps the dress uniform in the closet.
dan.lett@freepress.mb.ca
Winnipeg police chief
grilled over probe into wrongful murder conviction
Steve Lambert, Canadian Press, August 10, 2006
WINNIPEG (CP) - Winnipeg police
chief Jack Ewatski faced questions Thursday about whether he
held back important information about the 1991 wrongful murder
conviction of James Driskell that could have spared the man years
in prison.
Ewatski, who reviewed the case
as a young inspector in 1993, told the inquiry into Driskell's
case he passed on all his information to Manitoba prosecutors.
But the inquiry's lead lawyer,
Michael Code, told Ewatski in a testy exchange there is no documentation
to show he passed on information that cast doubt on a key Crown
witness, Ray Zanidean.
The information included revelations
that Zanidean apparently lied on the witness stand when he denied
receiving a large amount of money for his testimony. The inquiry
has heard Zanidean received $20,000 in cash and had other costs
covered, including relocation and transportation.
"Is there any note discussing
the perjury in relation to financial benefits?," Code asked.
"Obviously my notes are
lacking in detail . . . but the sense is, and my recollection
is, there was significant discussion about that issue,"
answered Ewatski, who is also head of the Canadian Association
of Chiefs of Police.
"I can't find any notation
of any discussion," Code replied.
Driskell's original lawyer,
Greg Brodsky, has already told the inquiry he was never made
aware of the information, and could have used it to discredit
Zanidean.
Questions about Driskell's
guilt in the slaying of his friend, Perry Harder, arose soon
after his conviction. In 1993, Ewatski and three other inspectors
were appointed to review the police handling of the case.
Their report, which was kept secret until a court ordered its
release 10 years later, revealed several facts about Zanidean,
including:
-Zanidean received money to
cover living, relocation and other costs for his testimony, not
the small room and board stipends he admitted to at trial.
-Zanidean, who testified that Driskell had talked about killing
Harder, threatened to recant his testimony shortly after Driskell
was convicted.
-There were strong indications that Zanidean was offered some
sort of immunity from an arson charge in Saskatchewan in exchange
for his testimony.
Ewatski insisted prosecutors
knew all of these facts, either through written or verbal communications
from him or from other sources.
But that assertion was challenged
by Manitoba's Justice Department three years ago, which said
the Crown files were "inconsistent" with what Ewatski
released in his report.
Driskell's new lawyer, James
Lockyer, told Ewatski he should have released his 1993 information
not just to prosecutors, but to defence lawyers who were trying
to get Driskell's conviction overturned.
"Since one of your concerns
was whether or not Mr. Driskell was a victim of a miscarriage
of justice, did you think it was your duty that somehow this
information got to Mr. Driskell?," Lockyer asked.
"It is the role of the
Crown to provide disclosure to the defence. It is not our role,"
Ewatski replied.
Driskell's conviction was quashed by the federal government last
year, due to the questionable credibility of Zanidean and another
Crown witness, as well as faulty physical evidence.
Three hairs found inside Driskell's
van, and which an RCMP expert testified belonged to the victim,
were shown by DNA tests in 2002 to actually belong to three other
people.
Lockyer said Driskell, who
was locked up for just over 12 years, could have been released
much earlier had Ewatski released his findings.
"You had 10 years to think
about it," Lockyer said. "Why did we have to wait 10
years plus before we get the benefit of hindsight?"
Ewatski's report was supposed
to be a confidential document for the former police chief.
His report concluded that "we have found nothing which would
lead us to believe James Driskell was not involved in the death
of Perry Dean Harder".
Chief put on hot
seat
Ewatski defends decision to sit on '93 report
by Tamara King, Staff Reporter,
Winnipeg Sun
Police kept a 1993 review of
the investigation into Perry Harder's homicide under wraps because
they believed prosecutors already had the details, an inquiry
has revealed.
Winnipeg police Chief Jack
Ewatski was on the hot seat at the ongoing Driskell Inquiry yesterday,
explaining why the review stayed secret for more than a decade
until a judge ordered its release.
While it didn't clear Driskell
of the homicide, the Harder review uncovered some questionable
dealings surrounding his June 1991 trial -- information that
should've been handed over to Crown attorneys, said James Lockyer,
the lawyer currently representing Driskell.
"It was our opinion that
they were fully aware of everything," said Ewatski.
Did you "care" that Driskell was in jail until the
report's release in 2003, Lockyer later asked Ewatski.
"I don't think it was
part of my responsibility," Ewatski said, adding Crown attorneys
are responsible for giving information to defence lawyers.
Looking back, Ewatski's co-author
-- retired Insp. Robert Hall -- reportedly believes there was
information in the report Manitoba Justice might not have known.
IMMUNITY
"Due to the benefit of
hindsight ... Hall only now recognizes that the report contained
potentially new material which the Crown was not aware of ...
With his present knowledge, Hall is of the view that the new
material should have been disclosed to the Crown," states
notes from Hall's May 24, 2006, interview with the inquiry's
lawyer.
Hall has not been called to
testify, commission lawyer Michael Code confirmed outside the
inquiry yesterday.
Ewatski's testimony yesterday blurred the already-fuzzy issue
of whether a star Crown witness received immunity for torching
a Saskatchewan home.
Earlier at the inquiry, retired
homicide Sgt. Al Paul testified former prosecutions director,
the late Bruce Miller, told him Ray Zanidean wouldn't be charged
for the fire, but not to tell him until after he testified against
Driskell.
During the 1993 Harder homicide
review, Ewatski testified yesterday that Miller said there was
no deal. Taking it a step further, then Insp. Ewatski's 1993
logbook claims Miller even personally told Zanidean the justice
department wouldn't help him out.
"It certainly added to
the confusion of whether or not there was a deal," Ewatski
said.
Ewatski will take the stand again today.
The inquiry into the conduct
of cops and Crowns involved with Driskell's June 1991 conviction
was called after former federal justice minister Irwin Cotler
declared a miscarriage of justice had likely occurred.
While his charges have been
stayed, Driskell has not been exonerated.
The file on Perry Harder's
murder remains open.
-----
Driskell so far: finger-pointing
festival
Dan Lett, Winnipeg Free
Press, August 8, 2006
IF you like finger pointing,
then you would have loved the first three weeks of the inquiry
into certain aspects of the James Driskell wrongful conviction.
For 12 days over those three
weeks, a meeting room at the Winnipeg Convention Centre has been
a veritable festival of accusations and counter-accusations.
It is too early in the life
of the inquiry to predict what commissioner Patrick LeSage will
make of the charges levelled by and against the nine witnesses
who have appeared. But at this early stage of the inquiry, there
seems little doubt that he will have much to say about the people
who investigated and prosecuted Driskell for first-degree murder
in 1991.
For those who have not been
able to follow the inquiry, testimony to date has focused on
promises made, and considerations provided to, a key Crown witness,
Ray Zanidean. A career criminal, Zanidean was one of the first
and most damning witnesses used to convict Driskell of first-degree
murder in 1991. Zanidean testified that he was with Driskell
on numerous occasions when Driskell planned the murder of his
friend, Perry Dean Harder.
However, unbeknownst to Driskell
or his lawyers, Zanidean received tens of thousands of dollars
in exchange for his testimony. He also received immunity for
an outstanding arson charge likely to be laid against him for
burning down his sister's house in Swift Current, Saskatchewan.
The financial considerations
and immunity deal are key because while in the witness box during
Driskell's trial, Zanidean denied receiving anything more than
"room and board" in exchange for his testimony.
To this point, there are two
basic Zanidean facts which most of witnesses have been able to
agree upon: First, Zanidean was in fact told he would not be
charged with the Swift Current arson; and second, it was somebody
else who authorized the immunity deal. Winnipeg police claim
it was prosecutors and the Mounties who authored the immunity
deal; the Mounties claim Winnipeg police offered Zanidean immunity
without authorization; and Manitoba Justice claims it did not
know immunity was being discussed.
Three key RCMP officers testified
about the Swift Current arson investigation and Zanidean's immunity.
The Mounties alleged that Winnipeg police were "dishonest
and deceitful" in their dealings, and told Zanidean he had
immunity before Saskatchewan Justice had approved the deal.
The Mountie allegations were
challenged by three members of the Winnipeg Police Service. Retired
Insp. Bill VanderGraaf and homicide detectives Tom Anderson and
Al Paul, the three officers who had the most contact with Zanidean,
admitted they raised the issue of immunity, but claimed the Mounties
were only too happy to let Zanidean walk to help their Winnipeg
colleagues solve a grisly murder.
However, the Winnipeg police
testimony has not held up well. The Mounties arrived with mountains
of memos, notes and reports backing up almost everything they
said. The Winnipeg police had no notes, and virtually no supporting
documentation.
Under questioning from commission
counsel Michael Code, and James Lockyer, the lawyer representing
Driskell at the inquiry, the Winnipeg police wilted and confirmed
they had worked with prosecutors to keep details of Zanidean's
immunity and financial consideration from Driskell's lawyers.
In a revelation that stunned
the inquiry, Al Paul said he was told by former director of prosecutions
Bruce Miller, now deceased, to keep details of the immunity deal
from Zanidean so that when he testified, he would tell the jury
he was not getting a walk on the Swift Current arson charges.
Paul told an incredulous Code that he "didn't think of it
as a big deal at the time."
Douglas Abra, the lawyer representing
Miller's estate, may have expressed it the best when he asked
Paul: "You think it's OK to let a witness testify to something
that not truthful?"
"I can't testify to what
Mr. Miller was thinking," Paul retorted. The final act in
this evolving drama came from David Kovnats, Zanidean's lawyer.
Kovnats told the inquiry his client had demanded immunity from
the very beginning of his involvement as a witness in the Driskell
murder. Kovnats said he received a verbal commitment of immunity
from Miller in December 1990, nearly six months before Zanidean
testified.
dan.lett@freepress.mb.ca
RCMP labs biased, Driskell's
lawyer tells inquiry
August 9, 2006, CBC News
James Driskell's former lawyer
has testified that crime labs are biased in favour of police
- a trait he says landed Driskell in jail for 12 years on
a wrongful murder conviction.
Greg Brodsky, who represented
James Driskell at his 1991 murder trial, alleged that crime labs
were biased while speaking in Winnipeg on Wednesday at the inquiry
into the case.
"It's not like a collection
of facts. Sometimes I think they're given the background,
they're told what to look for, and they have to see if they can
see it," Brodsky told the inquiry.
"Sometimes they see it."
Hair evidence, examined by
an RCMP lab, helped put Driskell in prison for the 1990 murder
of Perry Harder, which Driskell always maintained he did not
commit.
The first-degree murder conviction
was quashed by the federal justice minister in 2005.
Brodsky said labs need
to be more independent if they want to discover the truth.
"I think they should be
independent, I think, like the chief medical officers. I
think it should be run and operated by an independent, non-profit
agency," he testified.
Crown hid information: Brodsky
When the justice minister
overturned Driskell's conviction, he cited several reasons for
the decision, including new DNA evidence that showed hairs found
in Driskell's van did not belong to the victim - as the
Crown argued at the trial - as well as problems with
key witnesses and a lack of disclosure of information that could
have helped Driskell's defence.
On Tuesday, Brodsky told the
inquiry he had a hunch that information that would have helped
Driskell's case was being kept away from him.
"[We] would have made
a motion for fresh evidence if we had to. But we certainly wouldn't
have let it go," Brodsky testified. "And in my opinion,
then and now, I would have secured the acquittal of Mr. Driskell."
Brodsky said he made repeated requests to Crown prosecutors for
the information, and was repeatedly told he had everything he
needed.
Brodsky also told the inquiry
that the Crown's star witness, Ray Zanidean, perjured himself
on the witness stand and nobody did anything about it.
One recurring theme in the
inquiry, which began July 17, has been miscommunication between
the RCMP and the Winnipeg Police in relation to the treatment
of Zanidean, who was an important and controversial witness at
Driskell's trial.
The inquiry had earlier heard
that Zanidean demanded and received tens of thousands of dollars
and other perks in exchange for his testimony, while threatening
to change his story or recant altogether.
Driskell's lawyers, including Brodsky, and the jury at his trial
were not made aware of the deals, the inquiry was told.
After Driskell's conviction
was quashed, the Manitoba government stayed the charges against
him, a move that keeps him out of prison but does not officially
exonerate him.
The inquiry is probing the
role of police, the actions of the Crown and questions of disclosure
in the case.
The commissioner has also been asked to determine when someone
has met the threshold to be declared factually innocent or wrongly
convicted.
The inquiry is expected to
run another two weeks.
Driskell defence
hindered: lawyer
Info on immunity deal crucial, inquiry told
The Driskell Inquiry
/ By Nick Martin, Aug. 8, 2006
THE Crown never disclosed to
the defence that Ray Zanidean was negotiating a deal for immunity
on a Swift Current arson in return for his testimony in James
Driskell's murder trial, Driskell's trial lawyer Greg Brodsky
said yesterday.
"He was trying to buy
his way out of the charge --- I would have had to know that,
in order to discredit him," Brodsky told the inquiry into
Driskell's wrongful conviction for the 1990 murder of Perry Dean
Harder.
"The whole complexion
of the trial could have been changed," he said.
Brodsky told the hearing that
there was extensive information and evidence not disclosed to
him, which could have allowed him to discredit Zanidean and other
witnesses, or to mount an appeal of Driskell's conviction.
"There are many reasons
we should know a witness is being bought," Brodsky said.
"He would swear to a scripted scenario. I would have to
know about the bargains -- the jury would have to know, more
importantly than me."
Brodsky said the Crown also
did not disclose to him that Zanidean had told Winnipeg police
in October of 1990 that he had committed arson in Swift Current.
Zanidean made that admission during the interview in which Zanidean
had stepped forward to tell police that Driskell had murdered
Harder.
"Absolutely not. It would
have been delightful to have this before I started cross-examination"
of Zanidean at Driskell's murder trial on June 11, 1991, Brodsky
said.Zanidean became the key witness against Driskell in order
to protect himself from prosecution for the arson that Driskell
had witnessed, Brodsky said.
Driskell spent 12 years behind
bars for Harder's murder. He always maintained innocence. Four
years ago, Driskell's conviction was quashed by the federal Justice
Department after DNA tests proved hairs used to convict him were
not Harder's.
"Zanidean wanted to protect
himself from prosecution. Getting someone charged with murder
is a good way to discredit a witness," Brodsky said. Brodsky
knew from Driskell that there had been an arson.
Previous police witnesses have
said that when Zanidean stepped forward in October of 1990, he
advised police that he could have problems with his credibility
because he had burned down his sister's house in Swift Current.
Zanidean sought immunity from the arson, in exchange for testifying
against Driskell.
"If there was anything
in there that people were seeking favour, I should know about
it," Brodsky said.
"I wanted to know if people had a motive for falsely implicating
Mr. Driskell in the killing, and whether there were any deals
being made." Brodsky said he pressed the police and Crown
to disclose whether they were offering Zanidean immunity on the
arson in exchange for his testimony against Driskell, or whether
police simply lacked the evidence to lay an arson charge.
"I intended to deal with
the Swift Current fire" at Driskell's trial, Brodsky said.
"My questions are more potent if they're backed up by police
investigation or notes, than if they're out of the air from my
imagination," Brodsky said.
Retired Winnipeg police sergeant
Albert Paul has told the inquiry that the late Bruce Miller,
then Manitoba's director of prosecutions, told Paul and his partner
Tom Anderson that Miller had negotiated an immunity deal with
Saskatchewan, but ordered the two officers not to tell Zanidean,
to avoid tainting his testimony.
Zanidean then told the murder trial that he did not have an immunity
deal.
"We don't allow witnesses
to lie in court. We don't allow witnesses to fool the court,"
whether a lawyer is the defence or the prosecution, Brodsky said.
Brodsky said that he did not
know prior to the inquiry that Zanidean had a "blow-up"
with his police handlers immediately after the trial on June
20, 1991, in which Zanidean threatened to recant his testimony.
Witnesses have described the
incident, but have not specified what Zanidean would have changed
about his testimony.
He would certainly have wanted
to know, had he been aware of Zanidean's outburst, Brodsky said,
and he would have demanded an investigation.
Earlier yesterday, David Kovnats,
Zanidean's lawyer, spoke directly to the hearing -- in what commissioner
Judge Patrick LeSage said was an unusual move -- and declared
that Manitoba lawyers take each other's word, without needing
to have everything in writing. Kovnats has come under heavy fire
at the hearing for lacking notes, letters and written reports
on his claim that in late 1990, both Winnipeg police and Miller
promised Zanidean immunity in the arson and relocation to B.C.
with a new identity.
"In Manitoba, we do a
lot of things under trust conditions. Our practice is an honourable
one. The attitude was, you don't write letters for everything,"
Kovnats said.
The hearing continues this
morning.
Ewatski faces grilling
on report
DAN LETT, Winnipeg Free Press, August 10, 2006
WINNIPEG Police Chief Jack
Ewatski sat in his inner office at the Public Safety Building
on Princess Street, fielding yet another request to view a report
on the grisly 1990 murder of Perry Dean Harder.
It was January, 1999, nearly
eight years after James Driskell had been convicted of first-degree
murder in connection with Harder's death. It was also some six
years after Ewatski and a colleague were asked to review the
Harder murder investigation, to ensure no evidence was left uncovered
and no witness had been coerced.
The report produced by that review was not released until 2003,
but in a one-sentence summary police said they had not been able
to uncover anything that would indicate Driskell was not involved
in the Harder murder.
Hotly pursued
Despite these assurances, the
Harder murder investigation report continued to be hotly pursued
over the years.
There had been heroic efforts made by Janie Duncan, a Winnipeg
private detective who had long believed Driskell was innocent.
In the late 1990s, the report was also sought by the Innocence
Project, a group of Osgoode Hall law students led by wrongful
conviction champion Dianne Martin. And finally, the Free Press
had come knocking on Ewatski's door.
After welcoming a reporter
into his office, Ewatski pointed to the corner of his modest
desk, where a copy of the report sat tantalizingly close by.
Ewatski pointed at it and explained that the reporter was never
going to get a look at it.
Ewatski said the report was
internal, and thus confidential. He also said all of the officers
involved in the case had been told they could not talk to anyone
outside the department about the case.
Despite turning down this latest
request, Ewatski wanted to put the reporter's mind at ease. "You're
going to have to trust me. There is nothing in that report that
would help Jim Driskell."
Fast-forward to August, 2006.
Driskell's conviction has been quashed by the federal justice
minister, and now an inquiry into certain aspects of his wrongful
conviction is unfolding at a glacial pace in a downtown meeting
room at the Winnipeg Convention Centre.
If events go as planned, today
Ewatski will be on the witness stand to explain in public, for
the very first time, his decision to keep the review report from
public view for so many years. It would be an understatement
to say that Ewatski has some explaining to do.
While Ewatski has never commented
on the findings of the report, other credible sources have weighed
in on its probative value.
Associate Chief Justice Jeffrey
Oliphant of the Manitoba Court of Queen's Bench will go down
in history as the man who ultimately unlocked the secrets of
the report when he ordered it released as part of a bail application
launched by Driskell's lawyers in November 2003. The revelations
in the report included:
* Confirmation a Crown witness had committed perjury at Driskell's
trial;
* That police arranged for witnesses to receive CrimeStoppers
rewards after giving statements incriminating Driskell;
* That police had likely inserted incriminating facts into some
witness statement;
* That Winnipeg police offered an unauthorized immunity deal
for pending arson charges in Saskatchewan in exchange for testimony
from a key witness.
Oliphant said the report contained new evidence, some of which
was highly embarrassing for the police. Oliphant concluded the
report was relevant to Driskell's efforts to prove his innocence.
In the face of this and other
credible assessments of the report, Ewatski's testimony at the
Driskell inquiry is highly anticipated. Will Ewatski will finally
agree there was something in his report that would have, could
have, helped Driskell? Or, will he stick to his guns and insist
there is nothing in the report of any value?
The stakes are very high for
witnesses at the Driskell inquiry. Commissioner Patrick LeSage
has been given the authority to recommend professional sanctions
or criminal investigation of anyone found to have willfully withheld
evidence in this case.
Ewatski once asked those who
asked for the Harder murder report to trust him when he said
there was nothing in it that would help Jim Driskell. Now that
others have viewed the report, and have generally disagreed with
Ewatski's assessment, LeSage will need to hear directly from
the police chief about why he steadfastly refused to release
the report. dan.lett@freepress.mb.ca
Warrant kept key
witnesses from fleeing
Crown didn't disclose that: lawyer
By Nick Martin, Thu
Aug 10 2006
JAMES Driskell's defence was hurt by the Crown's failure to disclose
that four key witnesses at his 1991 murder trial were under a
special warrant to prevent them from fleeing the province, Driskell's
lawyer charged yesterday.
Manitoba's Crown and police
see nothing wrong in not disclosing vital evidence and information
to defence lawyers, Greg Brodsky told the inquiry into Driskell's
wrongful conviction for the 1990 murder of Perry Dean Harder.
"The main problem is,
people didn't seem to think, don't seem to think, that it's wrong,"
Brodsky said.
Brodsky said it would have
been significant to know that at least four witnesses against
Driskell were under a material witness warrant -- a legal device
giving police control over witnesses likely to flee, he said.
Brodsky said he learned only
last week that Winnipeg police arrested key witness Ray Zanidean
in Calgary on May 26, 1991, and brought him back to Winnipeg
under a material witness warrant, 16 days before he testified
at Driskell's murder trial.
"There has to be a basis
to restrict someone's liberty" if that person is not facing
charges, most likely that the witness will flee, said Brodsky.
He did not know at the time
of the trial that the police had material witness warrants for
other key witnesses, including John Gomieny and brothers Ashif
and Shafik Kara."It only applies to someone who's running
away. They pull that leash -- it's a continual reminder who's
in control, the police," said Brodsky.Brodsky said the withholding
of information by the prosecution was not just a problem for
Driskell, but is a problem for other people facing criminal charges
in other cases in Manitoba.
Brodsky said that had the Crown
not withheld extensive information -- especially that Zanidean
was cutting a deal for immunity on a Swift Current arson in return
for his testimony against Driskell -- he could have better defended
Driskell at his 1991 trial, or far better pursued a 1992 appeal
that Driskell lost.
Driskell spent 12 years behind
bars for Harder's murder. He always maintained his innocence.
Four years ago, Driskell's conviction was quashed by the federal
Justice Department after DNA tests proved hairs used to convict
him were not Harder's.
Police often decide not to
put in writing information they don't want to turn over to the
defence, Brodsky told the inquiry. "I didn't think the Crown
would do that. These are honourable people -- some of them are
my friends."
Brodsky said George Dangerfield,
the Crown who prosecuted Driskell, was usually better at disclosure
than most Crowns. And Brodsky echoed other witnesses who assumed
that the late Bruce Miller, then Manitoba's director of prosecutions,
would tell Dangerfield everything he knew.
Brodsky agreed with Douglas
Abra, the lawyer for Miller's estate, that Miller was ethical,
trustworthy and had integrity. Abra pointed out that Zanidean's
handlers, retired homicide sergeants Albert Paul and Tom Anderson,
have testified that Miller told them he'd made an immunity deal
for Zanidean, but ordered them not to tell Zanidean until after
he'd testified against Driskell.
"Is there any way in the
world you can see that Bruce Miller would give instructions of
that nature to those police officers?" asked Abra.
Replied Brodsky: "No.
He wouldn't."
The inquiry continues this
morning with Brodsky on the witness stand. Winnipeg police Chief
Jack Ewatski is expected to begin testifying this morning.
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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