|
Justice
Minister Mackintosh gets involved | Premier gets involved | More layers of
the criminal prosecutorial cover-up are revealed | We thank Disclosure for providing a link.
Driskell pages: one | two | three | four | five | 2005 | Terry
Arnold | New: Blogging
RCMP Informants
Inquiry
iunderway, summer 2006
Limited in scope to limit damage to the Crown | Dan
Lett backgrounder in the Winnipeg Free Press, July, 2006
|
James Driskell
(2)
Group wants Driskell
conviction overturned
CBC, Mar 17, 2003
WINNIPEG - A group representing
convicted murderer James Driskell says an RCMP lab got a key
piece of evidence wrong and has called for a new trial.
The Association in Defence
of the Wrongly Convicted called Monday for Driskell's conviction
to be overturned. He is serving a life sentence for the first-degree
murder of Perry Dean Harder, shot and killed in 1990.
Driskell has spent more than
12 years in prison.
The association's James Lockyer,
speaking from the minimum security Rockwood Institution in Manitoba,
said a Winnipeg RCMP lab incorrectly analyzed three hairs used
to convict Driskell.
An RCMP analyst testified at
the trial the hairs found in Driskell's van belonged to the victim.
The prosecution argued Driskell murdered Harder in the van.
According to test results from
the Forensic Science Services in England, none of the hairs belonged
to Harder.
"It's going to be a long
haul yet," said Driskell. "I have to remain pessimistically
optimistic."
Winnipeg Police Chief Jack
Ewatski said if Driskell wants a review of the case, he should
follow the process laid out in the Criminal Code of Canada. Police
will fully co-operate if an application is made under the Code,
said Ewatski.
Written by CBC News Online
staff
Police withholding evidence:
lawyers
Could trigger
new trial for Driskell
By Dan Lett, March 16th,
2003
The Winnipeg Police Service
is withholding the results of an internal review of the 1991
James Driskell murder case, including "fresh and material
evidence" that could trigger a new trial, lawyers for the
Association in Defense of the Wrongly Convicted have charged.
Toronto lawyer James Lockyer,
who is representing Driskell in his bid for a new trial, said
he has asked Attorney General Gord Mackintosh to compel Winnipeg
police to release the review's findings.
Lockyer said that if Mackintosh
refuses to help obtain the report, he is prepared to take police
to court to seek its release.
"As far as I'm concerned,
they have no choice but to give us the report," said Lockyer.
"We know that it has fresh and material evidence and we
must have that to properly review Mr. Driskell's case. If they
won't do the right thing, I've told them our alternative is to
apply to the courts for the release of the report."
Winnipeg police Chief Jack
Ewatski has consistently refused to release the results of the
review, launched in 1993 in response to media reports questioning
Driskell's guilt in the 1991 slaying of Perry Dean Harder.
In fact, all Ewatski will say
about the report is that it did not uncover any evidence "which
would lead us to believe James Driskell was not involved in the
death of Perry Dean Harder."
However, in a January 2001
interview with the Free Press , Ewatski revealed a number
of new facts uncovered in the review that have never before been
disclosed.
These new facts include:
* Confirmation that Winnipeg
police had evidence a key Crown witness, Ray Zanidean, tried
to recant his testimony. Despite this knowledge, police failed
to re-interview Zanidean during the internal review;
* The conclusion of investigators
conducting the review that despite his statements to the contrary,
Zanidean's main motivation for testifying against Driskell was
financial gain. In fact, Zanidean would be the beneficiary of
tens of thousands of dollars in relocation expenses;
* The existence of a taped
statement by an inmate at Stony Mountain penitentiary, who contacted
the RCMP and alleged that a Winnipeg police officer was involved
in the murder. To date, Ewatski has refused to identify the informant
or the officer.
The review was launched at
the request of then-chief Dale Henry in March 1993 following
a series of media reports that questioned Driskell's guilt. Ewatski,
one of the authors of the 175-page report, said the review was
classified as an internal investigation and was never intended
to be released to the public.
Harder's body was found in
a shallow grave near railway tracks east of Brookside Boulevard
in September 1990. Police alleged that Harder was killed because
he implicated Driskell in a series of break-and-enters.
Perhaps the most surprising
revelation in the 1993 police review is that police found clear
evidence that Zanidean tried to recant his testimony.
On June 20, 1991 -- a week
after the trial concluded -- Driskell's lawyer, Greg Brodsky,
received an anonymous phone call from a man claiming a key witness
lied because he had been threatened by police. The caller said
police coached the witness on what to say in written statements
and while on the witness stand.
Brodsky said he always suspected
the call came from Zanidean, but he was unable to confirm that.
He never heard from the male caller again.
Unbeknownst to Brodsky or Driskell,
Winnipeg police uncovered the identity of the caller during their
1993 review. Ewatski confirmed that on the day Brodsky received
the anonymous call, Zanidean was still in protective custody
in a Winnipeg hotel. A search of the hotel bill for that day
uncovered a phone call from Zanidean's room to Brodsky's office,
minutes after police decided to discontinue protective custody.
On the basis of that information,
Ewatski said he tried to contact Zanidean about the phone call,
but Zanidean refused to be interviewed. The police review did
not have the power to compel any witness to talk.
"There were a number of
questions that we would have loved to ask Mr. Zanidean,"
Ewatski said. "Obviously, the phone call would have been
one of them. We wanted to hear from him but he never gave us
that opportunity to ask him those questions. That still leaves
a bit of a hole, doesn't it?"
Ewatski has also been particularly
reluctant to discuss the relocation deals provided for the two
police informants whose testimony was the key evidence against
Driskell.
The jury at Driskell's trial
heard few details of what the Crown offered Zanidean and fellow
key witness John Gumieny, a convicted rapist. Zanidean was asked
by Driskell's lawyer about a relocation deal, but Zanidean denied
he was being paid anything more than money for a room and just
under $50 a day for meals.
In a subsequent interview,
Ewatski was adamant that while police did provide protective
custody, the witnesses were not provided with any assistance
with relocation.
As for Zanidean, Ewatski said
he was a demanding witness who was sent on his way after the
trial without any help from authorities. "It was a mutual
decision of Mr. Zanidean and authorities that he would get on
with his life without the formal involvement of justice officials,"
Ewatski said.
However, a Free Press investigation
subsequently revealed that Zanidean received tens of thousands
of dollars to cover rent for a safe house, hotel bills, meals,
and moving expenses prior to the trial.
Zanidean, a convicted thief
and self-admitted arsonist, received an elaborate deal in which
police watched over him for more than six months, paid his legal
fees and even covered mortgage payments that were in arrears.
The big payoff came after the trial, when the Crown gave him
a $20,000 lump-sum payment to assist him in starting a new life.
Revelations about Zanidean's
attempt to recant and the refusal of police to divulge what they
know about witness compensation, are the latest in a series of
revelations about the apparent weakness of the case against Driskell.
In December 2002, DNA test
results eliminated a key piece of evidence used at Driskell's
trial. Hairs found in a van once owned by Driskell, which was
allegedly involved in the murder, were originally matched with
hairs from Harder's body by an RCMP hair and fibre expert.
Lockyer said although there
is no specific precedent to address this situation, Canada's
highest courts have consistently supported the efforts of lawyers
seeking disclosure of police and prosecution records for post-conviction
review.
The Manitoba Justice Department
has already agreed to release all of its records to Driskell's
lawyers. However, deputy justice minister Bruce McFarlane said
department officials cannot provide a copy of the Winnipeg police
review because they have not seen it.
Mackintosh has not yet formally
responded to Lockyer's request to compel Winnipeg police to release
their report.
dan.lett@freepress.mb.ca ©
2003 Winnipeg Free Press. All Rights Reserved.
'Junk science' cases
to get provincial review
Government
to ensure juries were not misled by hair evidence
Dan Lett, March 15th, 2003
MANITOBA has become the first
province in Canada to initiate a review of all serious criminal
cases involving hair-comparison evidence to ensure that juries
were not misled by what is now widely believed to be "junk
science."
Bruce McFarlane, Manitoba's
deputy minister of justice, said the unprecedented review was
launched after recent DNA tests excluded hair-comparison evidence
in two high-profile murder cases.
In one of those cases, lawyers
representing James Patrick Driskell, convicted in 1991 of the
first-degree murder of Perry Dean Harder, believe the elimination
of hair evidence through DNA tests warrants a new trial. Manitoba
Attorney General Gord Mackintosh deemed the results "unsettling,"
but does not believe the elimination of the hair evidence would
have altered the jury's verdict.
McFarlane said his department
felt it was important to identify other cases where hair-comparison
evidence was prominently featured to determine whether DNA tests
should be done to confirm the veracity of the original evidence.
"We want to do a double-check,
an audit of previous cases involving this kind of evidence,"
said McFarlane. "We recognize that hair comparison is not
a science -- it's an expert opinion at the very most. Now, with
DNA testing available, it is a science and we can have more certainty."
Selection criteria for the
review are still being developed, but the review is likely to
focus on serious crimes -- murder, manslaughter and sex crimes
-- where guilt was contested by the accused, McFarlane said.
Cases involving plea bargains or guilty pleas will probably not
be considered, he added.
In cases deemed worthy of review,
hair evidence will be subjected to DNA testing, McFarlane said.
If the hair is excluded, a
committee of Crown attorneys will assess the results to see if
further review is warranted.
Last year, the Association
in Defense of the Wrongly Convicted persuaded the province to
pay for DNA tests on hair evidence from James Patrick Driskell's
original trial. An RCMP forensic expert testified that hairs
found in a van once owned by Driskell, and believed to have been
used in the murder, belonged to the victim.
The DNA results proved the
hairs in the van did not belong to Harder. Toronto lawyer James
Lockyer, who is heading up Driskell's legal team, has argued
elimination of the hair evidence should immediately trigger a
new trial.
In triggering its review, Lockyer
said the province is acknowledging that erroneous hair evidence
has the potential to lead to wrongful convictions. Lockyer said
he is dumbfounded that Manitoba would agree to test the hairs
in the Driskell case, and in other serious cases, but refuse
to move immediately to new trials when the evidence is eliminated.
"I think they completely
misunderstand the importance this kind of evidence has in a criminal
trial," said Lockyer. "The hair evidence itself is
a warning sign that should encourage them to dig deeper into
this case."
Prior to the widespread use
of DNA testing, hair- and fibre-comparison evidence was used
by prosecutors around the world. The process involved the microscopic
visual comparison of hairs or fibres; the samples were assessed
for similarity against a checklist of 20 different characteristics.
Hair and fibre experts were allowed to testify about whether
the hairs were "consistent," but generally were not
allowed to say the hairs were an identical match.
However, as DNA testing became
more practical, hair and fibre comparison fell out of favour.
More importantly, it was shown that erroneous hair-comparison
evidence had played a key role in wrongful convictions.
In Canada, the most serious
of these cases involved Guy Paul Morin, who was convicted of
murder based in part on hair-comparison evidence. A post-conviction
review showed the evidence introduced at trial was exaggerated
to make it seem more inculpatory, and that details that could
have raised doubt about Morin's guilt were suppressed.
Prior to performing tests on
hairs from the Driskell case, the province also tested hairs
from 1995 murder trial of Robert Starr. Hair evidence used at
his trial was subjected to DNA tests after the Supreme Court
of Canada overturned his conviction because of errors in the
trial judge's final address to the jury.
Those tests determined the
hair-comparison evidence was erroneous, and it was never used
at his second trial, where Starr was convicted of two counts
of manslaughter.
An RCMP forensic expert who
works at the force's Winnipeg laboratory was responsible for
the hair-comparison evidence in both cases.
dan.lett@freepress.mb.ca ©
2003 Winnipeg Free Press. All Rights Reserved.
The verdict had a price
tag
Driskell
jurors didn't know of deals made with key witnesses
Dan Lett, March 15th, 2003
AS Jim Driskell walked up the
front steps of the Public Safety Building -- his hands handcuffed
behind him -- he had little idea that in the minds of the Winnipeg
police officers who were escorting him, he was already as good
as guilty.
It was October 9, 1990, and
just about everyone Driskell knew had been packed into the tiny,
dank interview rooms inside the Winnipeg police crime division.
Driskell's wife, Doreen Berens, was there. So was brother Ron
Driskell and his wife, Cheryl Maygard. A rogues' gallery of friends
and acquaintances was tucked away in various corners of the PSB,
all being asked about Jim Driskell and the violent death of Perry
Dean Harder.
Harder's badly decomposed body
had been found 10 days earlier in a desolate area on the northwest
outskirts of Winnipeg. He had been shot three times with a .22-calibre
gun, and then buried in shallow grave. Police had to use dental
records to identify the remains. The crime scene and the body
gave no clues about the killer. Harder's pickup truck was later
found abandoned near Rushing River Provincial Park in Northwestern
Ontario.
Nothing was known about Harder's
whereabouts since June, when he skipped a court date at which
he was to plead guilty to a series of break-ins. He was arrested
in November 1989 at a Deschambault Street garage which police
alleged was a "chop-shop" operation, where stolen automobiles
were being "chopped" into pieces and resold. Harder
had implicated Driskell in the chop-shop case but when he failed
to show in court, the charges against Driskell were dropped.
Using the chop-shop case as
the main backdrop for the murder, investigators quickly settled
on Jim Driskell as their suspect. They believed Driskell killed
Harder to make sure he wouldn't take him down on the chop-shop
charges.
Quietly, police began to round
up everyone who knew Harder and Driskell. They tapped Driskell's
phone, and teams of police officers began to follow his friends
and family members.
When they found a potential
witness, the interrogations were fierce. Most were told they
could be implicated in the murder if they didn't co-operate.
Some would later claim they were beaten. Others would report
to Driskell and his lawyer that they were kept in interview rooms
for hours without being allowed to use a bathroom or phone a
lawyer.
As Driskell was uncuffed inside
a crime division interview room, police told him they knew he
was involved in the murder, and if he just admitted his role
it would go easier on him. Driskell told them that despite the
chop-shop beef, he had no reason to harm Harder.
The interrogating officer then
told Driskell that his wife, Doreen, was in another interview
room just down the hall. He told him that if he didn't admit
to the murder, she was going to jail with him as an accomplice,
and their two children would be taken into foster care. It was
an interrogation technique that often produced results. But not
this time. After questioning Driskell for an hour, his lawyer
arrived and police released him a short time later.
When Driskell left the police
station, he said a sense of panic set in as he realized he was
the main target of the investigation. Less than two weeks later,
he would be formally charged with the first-degree murder of
Perry Harder.
"I found out right at
the beginning that everybody was brought in," Driskell said
in a recent interview.
"At first, I thought I
was just one of a number of people they were looking at. Then,
within the next couple of days, you start to notice all the vehicles
following you. And everywhere you turn there are vehicles following
your friends. Everybody you know is being picked up and when
they tell you about the questions they are being asked, I know
it was me they were after. It just got worse and worse and worse.
"It's a horrible feeling.
You're being looked at for killing somebody who was a friend
for years. I wouldn't kill anyone, let alone Perry. But it seemed
there was absolutely nothing I could do to stop what was going
on."
Ian Garber had been working
steadily for nearly a month to prepare Driskell's defence when
he got a phone call from Clifford Larkin.
Garber had been working hard
to contact everybody police had questioned, to find out what
the police had gathered against Driskell. Garber knew little
about Larkin but was aware from street sources he had provided
information to Winnipeg police about the Harder murder, and was
expected to testify if the case went to trial.
On Nov. 20, 1990, Larkin came
by Garber's downtown law office for a chat. Garber initially
believed that Larkin might be a good defence witness. The police
theory was that Harder disappeared on June 16 but Larkin had
told Driskell, his wife Doreen and another friend, Don Bannerman,
that he saw Harder in mid-July at the Safeway store at Maryland
Street and Sargent Avenue. At that time, Larkin said Harder had
dyed his hair red and grown a beard, probably to disguise his
appearance.
But now in Garber's office,
his story had changed. Now, he was absolutely sure he last saw
Harder before June 16. Garber said he was growing suspicious
and began to press Larkin about why he was changing his story
Almost without hesitation,
Larkin told Garber details of his police interrogation. He said
the officer in charge threatened to implicate him in murder unless
he talked. He also threatened to turn him in for working while
collecting welfare, and pinning other offences on him so that
child welfare officials would have to seize his children. Finally,
Larkin said police threatened to put the word out on the street
that he was a rat and he would "end up the way Perry Harder
did." Garber said Larkin left no doubt that he was going
to stick to the second version of his story.
Initially, Garber said he was
quite hopeful about Driskell's chance of beating the murder charge.
This was mostly because he didn't think the Crown could prove
Driskell had a motive. As the lawyer who repesented Driskell
on the chop-shop charges, Garber knew better than anyone that
a deal had been worked out with the Crown for Harder to plead
guilty without having to testify against Driskell. The result
was that months before Harder disappeared, Driskell was aware
the chop-shop charges against him would be dropped.
However, as he listened to
Larkin, Garber said he began to worry that an alarming pattern
was developing. Garber said the tactics Larkin faced were nearly
identical to those pressed on Ron Driskell, Jim's brother, and
his wife Cheryl Maygard. Police asked Cheryl "what it was
like living with a murderer." They told her they were positive
both Jim and Ron were involved in the murder, and that they were
going to keep her in custody as an accessory. Garber said she
complained to police that she was sick and required medication
to treat a rare blood disease, and that she said they refused
to let her get the medication.
The result was that witnesses
who Garber originally found to be supportive of Driskell began
to change their stories. "These people were very helpful
initially, and then stories changed, attitudes changed. People
originally said, 'We know Jim didn't do it. We're going to help
out Jim. We know he could never have done this.' Then it was,
'I don't want to talk about it.' Then it was, 'Jim did it.' People
were shutting up."
Still, Garber felt the police
had an uphill battle to prove motive. The prevailing theory driving
the investigation was that Harder was killed to prevent him from
testifying againt Driskell in the chop-shop case. Garber, who
represented Driskell on those charges, knew better than anyone
that theory was weak. Harder's lawyer, Tim Killeen had worked
out a deal months before Harder disappeared in which he would
plead guilty to reduced charges and would not testify against
Driskell. Garber said he was present at several court appearances
when Harder approached Driskell to assure him he would not testify.
In fact, it seemed to Garber
that police were not aware of Harder's plea bargain when they
constructed the case against Driskell. "The motive was that
Harder was going to testify against him. But that wasn't supported
by anybody. That's the motive they came up with without talking
to anybody."
Garber originally planned to
settle the matter of motive by calling Raymond Wyant, the senior
Crown attorney who had overseen the chop-shop case and who is
now chief judge of the provincial court. Wyant talked with both
Garber and Killeen about how Harder was going to plead guilty
and that without Harder's testimony, the charges against Driskell
would be dropped.
Unfortunately, Garber said
that when he approached him, Wyant couldn't remember any of the
plea bargain and indicated he would be unable to testify. Even
worse, his original notes from the case had been removed from
the court files and destroyed. Without Wyant as a witness, Garber
said he suddenly realized he would have to testify himself that
Driskell had no reason to fear Harder in the chop-shop case.
Garber convinced Driskell to allow Greg Brodsky, one of Winnipeg's
most accomplished defence lawyers, to take the case.
With his transition from counsel
to witness under way, Garber began to dictate detailed memos
about Driskell's case and the cast of characters involved in
the investigation, many of whom he represented from time to time.
After talking to dozens of people, Garber was convinced that
Perry Harder's murderer could well be one of the witnesses police
had interviewed.
In early November, Garber said
he was summoned to Stony Mountain Penitentiary north of Winnipeg
by one of his busiest clients, Billy Larkin, brother of Clifford
Larkin. Billy was doing time for his role in the Main Street
Stop and Shop case, in which drug dealers were selling huge quantities
of Talwin and Ritalin -- the so-called poor man's heroin -- from
the back of a convenience store. Billy was a good friend of Driskell's
and as a prominent figure on the Main Street strip, was a reliable
source of information about who was doing what to whom in Winnipeg's
underworld.
"The first thing he told
me was that Jim Driskell was in no way involved in the death
of Perry Harder," Garber said.
"The second thing he told
me was that someone who I knew very well and someone he had seen
on a regular basis had been involved in the murder. Billy told
me he wasn't going to let Jim go down on that particular charge,
but he couldn't do anything until he was released."
When all was said and done,
Larkin never did come forward after he was released from jail.
But Garber said he still believes he knows who the real killer
is. The Main Street strip is a fairly small community where everyone
knows everyone, and deeds like murder are hard to cover up.
"Everbody I talked to
on the street knew what was going on, and knew that Jim didn't
kill Perry," Garber said.
"I think the police were
doing whatever they had to do to make a case against Driskell
because someone somewhere decided he was the most likely suspect.
It wasn't a case of letting the evidence lead us to a particular
person; it was a case of picking the person and then seeing what
kind of evidence we have to support that person's involvement.
That's cheating."
* * *
GENERALLY, criminals live by
only one rule: Don't rat on anybody. Even so, experienced police
officers know they can always find someone who knows something
and is willing to say it for a price. So it didn't come as a
complete surprise to Driskell's legal team when it was revealed
in February 1991 that police had two informants in protective
custody.
Reath "Ray" Zanidean,
a convicted thief and self-admitted arsonist, and John Gumieny,
a convicted rapist, would become the Crown's key witnesses. Police
had placed both men and their families in safe houses in December
1990. Both were friends of Driskell and Harder. And according
to police, both came forward of their own volition .
Zanidean was well known up
and down Main Street as a notorious braggart. Friends of Driskell
who remember Zanidean in the late '80s remark on how he would
always boast about being involved in six-figure drug deals with
wiseguys in Edmonton, or knowing enforcers who could break legs
for the right amount of money. A Zanidean legend, often repeated
by people who came across him, was that he claimed to have connections
with Libyan leader Moammar Gadhafi and his worldwide terrorist
network.
Zanidean met Driskell through
his brother, Ron Driskell, when both worked at Western Glove
Works. Zanidean and Ron Driskell made extra money stealing fabric
and leather hides from the garment maker, which Zanidean's wife
would turn into vests and jackets to sell on Main Street.
Gumieny was a different story
altogether. Like Harder, he was a thief, but he was also involved
in drugs, both using and dealing. He was an emotional man who
suffered from depression and suicidal tendancies. At the time
of Harder's murder, Gumieny was also carrying a particularly
dirty little secret around with him. Seven years earlier he was
imprisoned in B.C. for rape. Sex offenders are generally treated
harshly by other criminals, both in and out of prison. According
to Gumieny's family, he was brutalized while in prison and was
keen to keep this part of his criminal record a secret after
his return to Winnipeg.
While many of the statements
police took from friends and family of both Harder and Driskell
were ambiguous at best, Zanidean and Gumieny painted a damning
picture.
Zanidean would give police
eight different statements, and early on in the investigation
he agreed to wear a body-pack recorder in an attempt to catch
Driskell confessing to the murder. Zanidean detailed how Driskell
plotted openly and often to kill Harder, running the gamut of
methods from freezing him to death to setting fire to him, and
even burying him underneath the floor of Zanidean's garage. "I
saw Jim off and on all winter and spring (of 1989 and 1990),"
Zanidean told police in his first statement. "No matter
what we were talking about, the talk always reverted back to
Perry, and Jim getting rid of Perry."
In July 1990, one month after
Harder had reportedly disappeared and the charges were dropped
against Driskell, Zanidean said he ran into Driskell again and
asked about how the chop-shop case went. "Jim was grinning
when he was talking," Zanidean told police in his first
statement. "I asked Jim where Perry was. He said: 'You would
be surprised what a man can do when he has to. I don't have to
worry about the charges any more.' I asked him, What do you mean?'
He said: 'Do you want to know?' I said no, I was scared to know....At
that moment I was sure that Jim had killed Perry."
Gumieny was no less forthcoming
with police. While drywalling a pawn shop warehouse in the winter
of 1989-90, Gumieny said Driskell talked openly about killing
Harder. Gumieny portrayed Driskell as obsessed and boiling over
with anger, and that he wanted Gumieny's help in subduing Harder.
At one time, Gumieny said, Driskell offered him a car and some
cash to help him with the murder.
The statements of Gumieny and
Zanidean fit together like pieces of a puzzle. Each man described
Driskell as obsessed with killing Harder. The two informants
even separately related a story of the first and only time they
met prior to Harder's disappearance. The meeting took place at
Zanidean's home and provided the Crown with some of the more
colourful details of Driskell's allegedly murderous intentions.
The statements were eerily similar, but with one important difference.
Gumieny said that at the meeting,
Driskell and Zanidean plotted openly to murder Harder and transport
the body to Edmonton, where someone would make sure he was never
found. Zanidean, however, claimed it was Driskell and Gumieny
who planned to take Harder's body to Edmonton. The implication
that Gumieny and Zanidean, if their stories were to be believed,
had both actively plotted with Driskell to murder Harder did
not seem to lessen their worthiness as witnesses for the Crown.
* * *
GEORGE Dangerfield was the
top gun in the Crown attorney's office, a lawyer of considerable
reputation who was well known for his snow-white hair and beard
and a penchant at one time for wearing a white wig as was the
fashion in Great Britain, where he studied for a time. His assignment
to the Harder murder was a clear sign that the Crown had come
to play.
"The Crown's position
is simply this: Driskell did not want to go to prison,"
Dangerfield said in his opening address to the jury. "Driskell
believed, in November of 1989, that he faced a considerable sentence
in prison. Driskell also believed, whether it was true or not,
that Harder proposed to give evidence against him, and for that
reason, to save himself from prison, he murdered Mr. Harder."
Dangerfield introduced a barrage
of circumstantial evidence to bolster his theory of motive. Witnesses
would testify that Driskell knew that Harder had disappeared
with his father's Esso credit card, information that Dangerfield
argued only the killer could know. Former girlfriends and family
members would testify that Harder was terrified of Driskell right
up to the time he disappeared, and that on the last day he was
reportedly seen, he told his landlord he was on his way to see
Driskell.
The Crown would also call a
Winnipeg police officer who recalled four phone calls with Harder
after the chop-shop bust, in which Harder claimed he was threatened
by Driskell. The officer made no notes of the phone calls at
the time but "reconstructed" the conversations from
memory after Harder's body was found.
It was a steady, if unspectacular,
prosecution right up until Dangerfield called Ashif Kara, a part-time
drug dealer who should have been one of the Crown's strongest
witnesses. Kara, who worked part-time in a hospital, reportedly
told police that Driskell asked him for a cocktail of prescription
drugs to subdue Harder. It was explosive testimony that had the
potential to sink Driskell.
However, when Kara took the
stand, he turned on the Crown and recanted his original police
statement, denying that Driskell had ever asked him for drugs
to harm Harder. Kara said police wrote down a number of things
in his statement that were untrue, but he felt compelled to sign
his name at the bottom because police had threatened him. "I
was frightened," Kara told court.
With a weak motive and a key
witness turned against him, Dangerfield was struggling and defence
lawyer Greg Brodsky knew it. While Dangerfield introduced testimony
from witnesses who claimed Harder was terrified, and even harbouring
thoughts of testifying against Driskell, Brodsky called the two
lawyers involved in the chop-shop case -- Ian Garber and Tim
Killeen -- who were more than able to challenge the notion that
Harder posed any threat to Driskell.
Brodsky was also taking some
comfort from the fact Dangerfield had no murder weapon, no witness
to the crime and no physical evidence tying Driskell to the murder
scene or body. "On motive, they had no case," Brodsky
recalled. "They had nothing. They couldn't tie Jim to the
murder in any meaningful way."
Still, Brodsky was worried
about the testimony of the two police informants who had been
in protective custody. The defence was not allowed to interview
the witnesses prior to trial or even learn their identities.
So Brodsky hired a private investigator who discovered that a
lawyer had been hired to represent one of the informants, Ray
Zanidean. David Kovnatz did little criminal work but represented
Zanidean a few years earlier when he and his wife bought a house
on Chelsea Avenue.
Brodsky said he suspected the
informants were getting something in exchange for their testimony.
At that time, rules for disclosure were much more lax, and it
was not unusual for the Crown to withhold key details of witness
compensation from the defense. Brodsky decided to take matters
into his own hands and early in the trial, he went to see Kovnatz
at his Tuxedo home.
Brodsky said Kovnatz was extremely
worried about his negotiations with the Crown on a witness compensation
deal. Kovnatz would not disclose the deal that had been proposed,
but he told Brodsky Zanidean was refusing to sign an offer from
the Crown, and it had enraged Dangerfield to the point where
he confronted Kovnatz in the Law Courts building and forced him
into an interview room. "(Kovnatz) told me Dangerfield grabbed
him by the shoulders and threw him against a wall, and that he
did that twice. He was screaming at him, and pointing his finger
in (Kovnatz's) face. Dangerfield told him that if he didn't get
his client to co-operate, they would charge him with obstruction
of justice." Kovnatz ended the conversation by promising
to make a copy of the witness compensation deal available once
it was signed.
This information allowed Brodsky
to ambush Zanidean when he took the witness stand. Under direct
examination by Dangerfield, Zanidean related everything he said
he had overheard from Driskell that led him to believe he killed
Harder. Zanidean also helped produce hours of taped conversations
after agreeing to wear a body-pack recorder. Brodsky made the
bold decision to call the body-pack transcripts into evidence
because through the hours and hours of taped conversation, Zanidean
was unable to elicit anything that even remotely sounded like
a confession.
Under cross-examination, Brodsky
went on the attack and tried to force Zanidean to admit he was
being paid for his testimony. With Dangerfield looking on, Zanidean
repeatedly denied he was receiving any compensation. He testified
he had been in protective custody and was receiving room and
"just under" $50 per day for meals. Zanidean said that
while he expected some relocation assistance after the trial,
he had already lost his house, two jobs and a "fortune"
in unrealized earnings. "I'm not being paid for nothing,"
Zanidean said.
Zanidean was only offering
the jury a sliver of the deal he was actually negotiating. Records
obtained by the Free Press confirm the Crown paid tens
of thousands of dollars to keep Gumieny and Zanidean in protective
custody prior to the trial, and then relocate them from Manitoba
afterwards. According to his ex-wife, Gumieny was relocated to
Ottawa following the trial and given about $12,000 to cover living
expenses.
But it was Zanidean and his
wife, Susan Fehr, who received the biggest windfall. In December
1990, the couple was first relocated to a $700-per-month safe
house on Beaverbrook Street, where the Crown also paid for tenant's
insurance, telephone, electricity, heat and cable television.
They were provided with $100 per day for meals.
Zanidean and Fehr were then
moved to a hotel in mid-April -- at a cost of nearly $200 per
day for room and board -- after Zanidean complained about finding
a threatening note on his car.
Two months before the trial,
the Crown authorized $3,000 to store Zanidean's furniture and
other personal belongings until the trial was over, and then
move them to an unspecified location. Incidental expenses included
$250 to repair damage done to a coffee table in the move to the
safe house, and hundreds of dollars to kennel and ship Zanidean's
two dogs.
Under his new name Bob Hendous,
Zanidean and Fehr were flown or bused back and forth to Calgary
several times before the trial. Between April and June 1990,
Zanidean racked up more than $500 in long-distance telephone
calls.
Zanidean had stopped making
mortgage payments on his Chelsea Avenue home in late 1990 and
by early 1991, land title documents show the mortgage company
initiated foreclosure. However, once again, Manitoba Justice
stepped in. A memo dated April 18, 1999 confirms that Graeme
Garson, then deputy justice minister, had approved "a course
of action" to free Zanidean from his mortgage. Bruce Miller,
then the director of prosecutions, wrote that "there will
be a requirement for the provision of substantial funds"
to complete the transaction. No other information was available
to confirm how much it ultimately cost Manitoba Justice to free
Zanidean from his mortgage.
The big payoff for Zanidean
came after the trial, when the province covered Kovnatz's legal
bill, estimatd at more than $7,000, and then approved a $20,000
lump-sum payment. A memo confirming the payment noted that there
would be no supporting receipts "to explain this payment,
as it is a lump sum and final payment to this protected witness
which will allow this person the freedom to relocate."
Brodsky also suspects that
Zanidean got immunity from outstanding criminal charges in exchange
for his testimony. At trial, Zanidean was forced to admit that
he set fire to his sister's home in Swift Current, Sask., in
early 1990 as payback for trying to scuttle his marriage, and
that he'd paid Driskell $1,000 to drive him to Swift Current.
Despite the knowledge that Zanidean admitted to the arson in
open court, RCMP abandoned their investigation of the fire shortly
after Driskell was convicted.
Although Brodsky had planted
the idea that Zanidean received immunity for the arson and compensation
for his testimony, the jury had no idea they were only looking
at the tip of the iceberg when they began deliberations.
Brodsky said he felt he had
scored some hits on Zanidean and Gumieny, to the point where
the jury was no doubt worried about their sincerity. However,
Dangerfield had one last piece of evidence to throw at the jury
which would provide a critical link to the testimony of Zanidean
and Gumieny.
Police found hairs in a van
once owned by Driskell which Zanidean and Gumieny had testified
was used in the murder. The hairs from the van were compared
to hairs from Harder's body at an RCMP lab. On the witness stand,
an RCMP forensic technician testified the hairs from the van
were consistent with Harder's. Dangerfield clearly understood
the inherent unreliability of hair-comparison evidence; he cautioned
the jury that the hair wasn't positively identified as Harder's,
but that it was so similar that it came from Harder or "someone
with an identical head of hair."
"And the significance
isn't so much that the hair is exactly Harder's or isn't,"
Dangerfield would submit. "The significance is: What's it
doing in the van in the first place ... where according to Zanidean,
(Driskell) planned to put the body on the floor? What is the
likelihood of someone with hair exactly like Harder's leaving
it in the back of Driskell's truck?"
Brodsky said while the hair
evidence was essentially meaningless, it formed a devastating
link between the testimony of Zanidean and Driskell. "The
hair was critical. When Dangerfield brought it forward, it fit
perfectly with what the informants had been saying."
It would take more than a decade
to provide Brodsky with the ammunition he needed to contest Dangerfield's
closing remarks to the jury. In December 2002, DNA tests were
performed on the hairs from the trial at the urging of the Association
in Defense of the Wrongly Convicted (AIDWYC). The hairs were
sent to a British laboratory at Manitoba government expense.
The results were conclusive: None of three hairs found in the
van belonged to Perry Dean Harder.
Brodsky, who has publicly decried
Driskell's conviction over the years, said the combination of
witness compensation deals and misleading scientific evidence
stacked the deck against his client.
The jury deliberated for 28
hours. At one point, jurors asked to see the transcript of testimony
from lawyers Ian Garber and Tim Killeen. Despite giving off signals
they did not buy Dangerfield's theory of the motive, on June
14, 1991, the eight women and four men of the jury returned a
guilty verdict.
"I don't necessarily believe
the prosecution sets out to imprison the wrong person by whatever
means," said Brodsky. "But I think they have to put
all the facts before the jury and let them decide. They shouldn't
hide things and they shouldn't try to mislead the jury. But that's
what happened here. They had no case against Driskell. If it
wasn't for Zanidean and Gumieny, and that hair, they could have
never got a conviction."
* * *
IT'S hard to imagine life working
out better for Ray Zanidean.
When he lived in Winnipeg in
the late 1980s, he was a thief who was living hand to mouth selling
stolen booze, clothes and electronics out of his car. Now, a
decade after he played a critical role in convicting Jim Driskell,
Zanidean is the owner-operator of the Husky gas bar and restaurant
in Radium Hot Springs, B.C., located in the heart of the Kootenay
National Park.
Despite having been in the
RCMP's witness protection program, Zanidean is living under his
real name. When contacted in February 2002, he said he was surprised
that anyone from Winnipeg would want to talk to him about his
role in Driskell's conviction. In a 15-minute conversation, Zanidean
smoked four cigarettes but offered very little about the circumstances
that led to him testifying against Driskell, except to say that
he wanted to tell the truth. "Read the transcript. If I
said it, I guess it's true."
Zanidean seems to have put
his life of crime behind him. And it appears he will avoid any
implication in the Swift Current arson that he admitted to while
testifying against Driskell.
Inquiries to the Saskatchewan
Department of Justice, the Saskatchewan RCMP and Saskatchewan
Government Insurance have so far failed to provide an explanation
about how Zanidean escaped prosecution for the arson. RCMP did
initiate an investigation and travelled to Winnipeg to interview
prospective witnesses following Driskell's murder conviction.
But then the trail goes cold.
Saskatchewan Government Insurance
would not disclose the results of its investigation into the
fire, but court documents show the Crown corporation refused
to honour the insurance policy held by Zanidean's sister. SGI
stated the fire "was not accidental within the meaning of
the policy," and that the policy holder "made material
misrepresentation" in applying for insurance.
A spokesman for Saskatchewan
RCMP said the force was unable to determine why Zanidean was
not charged because there is no file indicating an investigation
was ever commenced. Officials from Saskatchewan Justice have
so far refused to respond to Free Press inquiries about
whether a deal was struck with their Manitoba counterparts to
free Zanidean from prosecution for the arson.
Meanwhile, Jim Driskell continues
to serve out his sentence at the minimum-security annex at Stony
Mountain Penitentiary. Even if the conviction was to be overturned,
Driskell said he is not sure he could ever be compensated for
the impact this ordeal has had on his family. Driskell said his
five children -- three of whom were conceived while he was behind
bars -- are becoming distant strangers.
In October 2002, he agreed
to grant his wife, Doreen, a divorce. "When I first came
in, I told Doreen, 'We've got two years at the very least and
you should move on.' It's been 13 and I don't expect her to do
the time along with me.
"They've taken away from
me the most important thing in my life, my kids. When they take
that away, they've taken everything."
dan.lett@freepress.mb.ca
© 2003 Winnipeg Free Press. All Rights Reserved.
Crusaders demand retrial,
give lifer glimmer of hope
Dan Lett, March 14th, 2003
For the
past three years, reporter Dan Lett has investigated claims that
James Patrick Driskell has been jailed for a murder he didn't
commit. His two-part series begins today.
North America's leading fighters
for the wrongly convicted are focusing their attention on Manitoba
in a bid to win a new trial for a man serving a life sentence
for first-degree murder.
The Association in Defense
of the Wrongly Convicted is joining forces with New Jersey-based
Centurion Ministries to try to get James Patrick Driskell a second
chance for justice.
"I am looking forward
to investigating this case and trying to get to the bottom of
the whole murder," said James McCloskey, executive director
of Centurion. "Right now, I do not believe Mr. Driskell
was involved in the murder."
It is only the second time
that Centurion Ministries, which has freed and exonerated 26
lifers or death-row prisoners, has worked on a Canadian case.
In the early 1990s, Centurion investigators uncovered evidence
that led to the exoneration of David Milgaard.
Now 13 years into a life sentence,
Driskell has steadfastly denied killing his friend Perry Dean
Harder. Harder's badly decomposed body was found in September
1990. He had been shot several times in the chest.
The defence association convinced
the province in early 2002 to pay for DNA tests on hair evidence
from Driskell's trial in 1991. During the trial, an RCMP forensic
expert testified that hairs found in a van once owned by Driskell,
and believed to have been used in Harder's murder, belonged to
the victim.
The DNA results proved the
hairs in the van did not belong to Harder. Despite excluding
the hair as a key piece of evidence, the Manitoba Justice Department
has so far refused to initiate a new trial.
Deputy justice minister Bruce
McFarlane said that while the DNA results are "unsettling",
any request for a new trial should go to Ottawa, where the federal
justice minister has the power to overturn or review questionable
convictions.
Defence association lawyer
James Lockyer said Driskell's case has all the telltale signs
of the wrongful convictions of David Milgaard, Guy Paul Morin
and Thomas Sophonow.
"There is no doubt that
Jim Driskell did not get a fair trial," Lockyer said. "His
trial was a serious miscarriage of justice and there should be
an immediate retrial to give him an opportunity to prove his
innocence once and for all."
Winnipeg police Chief Jack
Ewatski dismissed the DNA results as meaningless, given a body
of more reliable evidence pointing to Driskell's guilt.
Ewatski also noted that police
conducted a review of the case in 1993 that failed to uncover
any evidence that Driskell was wrongly convicted.
However, a nearly three-year
Free Press investigation of Driskell's case has uncovered new
evidence that casts doubt on the fairness of his trial:
* The jury was never told the
Crown's two star witnesses received tens of thousands of dollars
in relocation expenses and compensation in exchange for their
testimony. These deals were negotiated with the full knowledge
of the most senior officials in the Manitoba Justice Department.
* Winnipeg police received
a tape-recorded statement from an inmate in Stony Mountain Penitentiary
alleging a member of the Winnipeg Police Service was involved
in the murder. This information was never disclosed to Driskell's
lawyers, who at the time were working on a post-conviction review.
To date, the Winnipeg Police Service has refused to identify
the inmate who made the allegation or the officer who was accused.
* Winnipeg police also uncovered
evidence that a star witness tried to recant his testimony following
the trial.
dan.lett@freepress.mb.ca
© 2003 Winnipeg Free Press. All Rights Reserved.
Hard time with no way out
Jim Driskell was convicted
of first-degree murder in 1991, and although DNA testing has
disproved a key piece of evidence the Crown used to send him
to prison, the province won't order a new trial... Is he another
David Milgaard or Thomas Sophonow?
Dan Lett, March 14th, 2003
For the past 13 years, James
Patrick Driskell has been an inmate at Stony Mountain penitentiary
north of Winnipeg, where he has maintained his innocence in the
1990 slaying of his friend, Perry Dean Harder.
The Winnipeg Free Press began
an investigation of his case nearly three years ago to determine
whether Driskell was the victim of a miscarriage of justice.
In the first of a two-part series, reporter Dan Lett examines
the events that led to Harder's murder.
AFTER the verdict was read
out, Jim Driskell couldn't take his eyes off the woman in the
jury who was crying.
It was June 14, 1991, and after
deliberating 28 hours, jurors found Driskell guilty of first-degree
murder. The courtroom behind him was mayhem. The gallery, packed
with friends and family, erupted in cries and shouts. At first,
Driskell could do nothing but lower his eyes and shake his head.
When he looked up, Driskell
turned to the jury, where he saw one of the eight women on the
panel sitting in the front row with a hand over her mouth, sobbing.
Driskell's lawyer, Greg Brodsky,
saw the weeping juror as well, and immediately appealed to Justice
Peter Morse to poll the jury, which would require each juror
to rise and affirm the guilty verdict. "No," Morse
said calmly. "I was watching and they all indicated agreement."
Morse then thanked the jury and adjourned the proceedings. There
was little more to be said; a first-degree murder charge carries
an automatic sentence of life in prison with no chance of parole
for 25 years.
"When they actually said
'guilty,' it's like getting hit in the head with a baseball bat
or a brick," said Driskell. "It's just a full shock.
Then it was life-25 and that was it. The judge was gone."
For the previous two weeks,
Driskell sat in the prisoner's box in Manitoba Law Courts Room
117 and listened to a parade of witnesses describe how he plotted
the execution-style murder of Perry Dean Harder, one of his closest
friends. Harder was a small-time booster, a thief who stole anything
and everything that wasn't bolted down. Despite failing to produce
a murder weapon, a confession, a witness to the murder or credible
physical evidence tying Driskell to the crime, Crown prosecutor
George Dangerfield got his conviction.
Dangerfield argued that Driskell,
a trucker and auto mechanic, killed Harder because he was going
to testify against Driskell in a series of theft and stolen goods
charges laid in late 1989. Harder disappeared in June 1990, a
week before a court appearance where he was expected to plead
guilty to a handful of theft charges. His body was found three
months later.
As the trial started, Driskell
and his lawyers believed they could win an acquittal, given the
lack of evidence. Nothing, however, could prepare them for the
drama that unfolded as Driskell's friends and confidants became
prosecution witnesses. One was enlisted by police to wear a body-pack
recorder, which produced hours of taped conversations with Driskell.
Another friend claimed Driskell spent countless nights driving
around Winnipeg's north end in a beat-up van looking for Harder,
openly plotting various ways to end his life. The jury lapped
it up.
For the last 13 years, Driskell
has been an inmate of Stony Mountain Penitentiary north of Winnipeg,
where he has steadfastly maintained his innocence. The media
has followed his saga over the years, helping to spark a full
review of the case by Winnipeg Police in 1993. That review, headed
by now-Police Chief Jack Ewatski, found no evidence to clear
Driskell or confirm allegations that police had intimidated witnesses.
Driskell made no progress in
proving his innocence until 2001, when the Manitoba chapter of
the Association in Defence of the Wrongly Convicted (AIDWYC)
answered his pleas for help. AIDWYC lawyers convinced the Manitoba
Justice Department to conduct DNA tests on hair evidence used
in Driskell's trial.
The hairs, found by police
in a van once owned by Driskell, were identified by an RCMP forensic
technician as being consistent with hairs taken from Harder's
remains. This evidence formed a crucial link with the testimony
of the Crown's key witnesses, who claimed that Driskell talked
openly of using the van to dispose of Harder's body. It was considered
such an important component of the case that it was the last
piece of evidence Dangerfield highlighted in his closing address
to the jury.
The DNA results arrived in
December 2002 and proved with certainty that the hair wasn't
Harder's. While exclusion of the hair doesn't mean Driskell is
innocent, his legal team has argued it warrants a new trial because
of the importance placed on it by the Crown at Driskell's original
trial. Despite paying $25,000 for the DNA test, the province
so far has refused to consent to a new trial.
The province's decision to
dismiss the DNA results has stunned Driskell and his legal team,
who believe there is a growing body of evidence to support a
new trial. The province's decision also means a delay of years
while Driskell's case is investigated further by AIDWYC and Centurion
Ministries, a New Jersey-based organization that has overturned
more than 20 wrongful convictions. An investigator from Centurion
Ministries cracked the case of David Milgaard, the Winnipegger
who spent 23 years in prison after being wrongly convicted of
murder.
There is at least one other
avenue Driskell could pursue for his freedom. After 15 years,
he is eligible to apply for a Faint Hope review, which allows
prisoners with life sentences to request early release based
on a clean prison record. There is one catch: Driskell must go
before a jury and express remorse for the murder of Perry Dean
Harder.
"Out at the back of the
property here, there's a cemetery and big white cross and there's
30 people buried there," Driskell said, his normally flat
voice rising with emotion.
"And when I go out there,
I look at that cross and I know there's a good chance I'm going
to end up there. Because if they're waiting for me to say that
I did it just so I can get out of here, it's not going to happen.
I'd rather die here."
* * *
Jim Driskell was only 11 the
day his father took him to school on the Main Street strip.
Ron Driskell was one of the
strip's toughest men, a bouncer at the Occidental Hotel who loved
his drink and never turned down a fight.
One day, Ron took his son for
a ride to the National Hotel, a dangerous watering hole right
on Main Street, just south of Higgins Avenue. It was broad daylight.
Ron took his son out of the car and told him to stand by the
front door.
"He said to me, 'Wait
here Jimmy. I'll be right back.' Then he went inside and picked
a fight with someone. It didn't take much, pretty much everybody
in that place was good to go. He brought me down here to show
me how it was done on the strip.
"All I remember was there
was blood. He took his time with it and made his point. He just
said to me, 'This is what happens if you get into trouble, Jim.
This is what you do to defend yourself.' "
The elder Driskell would teach
his son Jim one other important lesson a few years later. In
October 1978, Ron Driskell got into a bitter argument with a
group that included a number of relatives of his second wife
who had come to enjoy the hospitality of the Occidental. They
had been drinking heavily and Ron was forced to cut them off.
When he got off work, Ron went
home to his Young Street apartment block. Before calling it a
night, he dropped into a party at a neighboring suite unaware
that three of his aggrieved in-laws had followed him. The three
men beat Driskell to death in the kitchen. He was 44 years old.
Ron Driskell's short, hard
life should have served as a warning to his son. Instead, it
triggered a dangerous curiosity about the strip and the people
who flocked there. "Even after he was dead, I kept wondering,
what did he see in that strip that kept him going back? I don't
know. A lot of me being around that area was curiosity. These
people were interesting. I was trying to find out what these
people were doing."
Despite these tough lessons,
Driskell showed few signs he was going to be the hard case his
father was. Friends and family claim he is easy-going, with a
live-and-let-live outlook. In fact, prior to the murder conviction,
Driskell's adult criminal record consisted of two minor offences,
both of which resulted in discharges. As a juvenile, he was sentenced
to a few months in the Agassiz youth centre in Portage la Prairie
on a shoplifting charge. When he was released into foster care
in Portage, he was only 17 years old. He fell in love with the
daughter of his foster parents and got married within a year.
Driskell immediately pursued
a career in long-haul trucking. Still, he always knew he would
one day return to the strip and its cast of larger-than-life
characters. Before too long, he and his teenage bride relocated
to Winnipeg and plugged into the rough-and-tumble world of Winnipeg's
north end and, of course, the Main Street strip. Jim kept himself
busy driving long-haul and tow trucks. On the side, he would
repair cars for a friend who owned a pawn shop. He also began
driving stock cars.
Driskell said he never involved
himself directly in crime. On the other hand, he wasn't worried
about hanging around with criminals because his short time in
the portage youth jail demystified the whole experience of being
locked up. "After Portage, I didn't mind taking chances
because I knew I could do that, I felt safe. A lot of the time
I've done in here over the last 13 years, I handled it because
I know how to do the time. I can be comfortable in this setting."
As he became more familiar
with the Main Street crowd, he began to make friends with drug
dealers, prostitutes and, most importantly, the boosters. There
were the Larking brothers -- Basil, Clifford and Billy -- who
split their time between boosting and dealing drugs. There was
Laurie "Larry" Coleman, a booster who flunked out of
a local motorcycle gang and seemed to specialize in obtaining
upscale men's clothing. Winnipeg may be a wholesale town, but
a significant number of its citizens live off a vibrant discount
economy kept alive with a constant stream of stolen goods.
It didn't matter what you wanted
or needed, you could find it from the legion of boosters moving
between the Main Street hotels and up and down the narrow streets
of north end neighborhoods. The selection was expansive: groceries,
car parts, appliances, clothing, bicycles, furniture. Anything
that could be snatched from a restaurant freezer, pried out of
a truck trailer or lifted from a loading dock was in play. The
boosters were so well organized that if they didn't have what
you wanted, buyers could "put in an order" to have
it stolen in the next few days.
Although Driskell said he didn't
involve himself in the thieving, like everyone in that community
he was never at a loss about where to go to buy something hot.
"It was everywhere," Driskell said. "They'd pull
their car right into the driveway and open the trunk and ask
if you were interested in anything. The big thing was meat --
steaks, roasts, corned beef. If somebody had something they were
selling fairly cheap, I'd jump all over it."
One of his friends ran a regular
scam at grocery stores, especially the Safeway at Sargent Avenue
and Maryland Street. Driskell said his friend and an accomplice
would enter the store and each would grab a shopping cart. While
one filled his cart with steaks and small appliances, the other
waited by the supermarket door. When the time was right, they
would dash for the exit, leaving a half-full shopping cart in
the way to stop would-be pursuers. "They'd just walk right
out of the stores and nine times out of 10, nobody would try
to stop them."
Of all the boosters Driskell
knew, he took a particular liking to Perry Harder. Driskell was
living with his young wife on Burrows Avenue when a slim man
with a cheesy mustache strolled up the front walk and tried to
sell them some stolen clothes. Over the next few months, they
became fast friends.
"Perry was hyper, happy
go lucky," Driskell said. "He was getting high off
what he was doing. He was ripping off trucks, vans, cars and
train cars. He would stop in every now and then. He was interested
in cars, I was interested in cars. I was rebuilding a '69 Chevelle.
He'd come over and give me a hand with it. In my first two years
racing stock cars he was on my pit crew."
Perry and a cast of his accomplices
became regular fixtures at a variety of run-down garages Driskell
rented to repair cars. Each had more than enough space for the
work he needed to do, so Jim rented out bays to friends who wanted
to work on their own cars, or for storage. Perry and a number
of his contacts, some of them very tough customers, began to
store stuff in Jim's garage. Perry occasionally slept in the
garages when he didn't have an apartment. It was a situation
that didn't worry Jim, but caught the attention of his friends
and family.
"I knew Perry but I didn't
talk to him very much," said Cliff Warren, a lifelong friend
who spent his share of time at Jim's garages. "I even told
Jim I didn't like him (Harder) very much. All he ever talked
about was stealing and making a fast buck. I didn't think anything
good was going to come from having him around."
Driskell said he remembers
people cautioning him about Harder, but he dismissed those concerns
because Harder was a good friend. However, he grew worried about
Harder, who he said seemed tormented when it came to women. He
moved back and forth between two serious girlfriends, both of
them prostitutes. When he was between relationships, Driskell
said Harder began trading stolen goods for hits of T&R, the
street name for Talwin and Ritalin, prescription drugs that when
combined became a powerful and cheap high. Driskell said it was
clear he was using the drugs to trade for sex.
"As the years went on,
things started getting tougher for him. He changed a bit; he
was a more serious person. I never pushed him or pressured him
to find out about anything he was up to. He was well-known on
the strip, so I figured he had to be up to a lot of stuff."
In 1987, Harder and an accomplice
were convicted of breaking into multi-modal trailers at the Fort
Rouge rail yards. He got six months in jail. In a psychiatric
assessment prior to his conviction, Harder was described as a
man with turbulent emotions and deep-seated fears.
Doctors found him to be anxious,
sad and frustrated by his lot in life. He reported hearing voices
and suffering hallucinations. He was not eating or sleeping properly.
Occasionally, he thought of suicide. The report noted he purchased
two guns to end his life but ultimately talked himself out of
it because, he told doctors, "suicide was not a realistic
solution."
Driskell said he was probably
one of the only people to see Harder's' suicidal tendencies up
close. On two occasions, Driskell stumbled upon Perry as he was
trying to kill himself. The second time, Harder was living in
the back of a garage Driskell was renting. Driskell dropped by
one day and found Harder trying to hang himself with an extension
cord tied to a car hoist.
Driskell said he also began
to hear rumours that Harder was a police informant. In during
a short period of unemployment, Driskell hung out at the infamous
Main Street Stop N' Shop, a run-down convenience store that fronted
for some of the most notorious T&R dealers in the city. The
so-called poor-man's heroin, Talwin and Ritalin is still widely
available through various prescription frauds and scams. Dealers
buy the tablets for as little as $5 each and re-sell them for
as much as 10 times that amount.
Driskell knew a lot of the
dealers at the Stop N' Shop, including Billy Larkin, a tough
guy Driskell met through stock car racing, and "Larry"
Coleman, one of the most active boosters on the Strip. Harder
was also a regular fixture in the Stop N' Shop, where he traded
stolen goods for small packets of T&Rs. A police raid shut
down the Stop and Shop in
Driskell said that one day
while he played video games at the Stop N' Shop, he overheard
a conversation involving Larkin and Coleman in which both men
identified Harder as a police informant. In the Main Street culture,
even a rumour that someone was an informant could be a death
sentence. "They were pushing Perry away. I asked Coleman
and Larkin if there was a problem with Perry. They didn't say
much, other than they thought he was a rat. As far as Perry being
an informant, I never had any reason to think that until the
guys in the Stop N' Shop mentioned it."
Driskell said that while he
was worried about Harder, he had his own life to plan. In the
summer of 1989, he was working hard to relocate his family to
Matheson Island, a tiny community on the west shore of Lake Winnipeg,
300 kilometres north of Winnipeg. Driskell had left his first
wife and was settled with a new love, Doreen Berens. They had
two children and a dream to get out of the city and, finally,
away from the strip.
Driskell had leased three lakefront
lots for $300 a year on a 30-year lease. He bought a mobile home,
which was loaded with everything he would need to create a home
in the bush. Driskell planned to set up a salvaging operation
on the lake to earn extra money.
"I was going to go up
there on my own and make sure everything was set, and then Doreen
and the kids would come up later. The whole plan was to make
sure everything was set and that we could live on as little as
possible. Doreen being treaty (status Indian) and all, we could
hunt all we want and fill the freezer with meat. It was going
to be very simple."
At that time, Driskell was
renting a garage at the back of a home on Rue Deschambault in
St. Boniface. As he began to relocate more of his belongings
to Matheson Island, Harder began to store more of his loot the
garage. Driskell said he knew what Harder was doing, that the
junk he was storing was hot. But he didn't think it would ever
result in any attention from the police. Eventually, when Driskell's
family was fully relocated, the plan was for Harder to take over
the Deschambault garage. Then the only problem complicating his
life would be bitter divorce fight with his first wife, which
was dragging on.
On Nov. 8, 1989, Driskell was
up at Matheson Island, unloading a trailer in advance of relocating
his family. As he laid the groundwork for his future, Winnipeg
police descended on his Deschambault Street garage with a search
warrant. When they finished a few hours later, they had found
thousands of dollars in what they believed were stolen goods
-- air compressors, tools, tow truck parts and the remnants of
several stolen vehicles -- and arrested Perry Harder.
Harder was taken to a tiny
interview room at the Public Safety Building on Princess Street.
Police found a wide variety of stolen goods in the garage that
night, but the most powerful evidence against Harder was the
presence of a furnace, baseboard heaters and lumber from Atco
Enterprises Ltd. on Lowson Crescent, which had been lifted earlier
the same day. Normally, it is very difficult for police to charge
suspects with theft unless they are caught in the act. Possession
of goods obtained by crime is a lesser and more common charge
when police are able to tie a suspect to the theft of merchandise.
However, if police find stolen goods shortly after they were
stolen, the law allows the court to assume the person in possession
was involved in the theft. The goods from Atco put Harder in
a tough spot.
Criminals like Harder almost
always keep their mouths shut when they're caught with stolen
goods. It's hard for police to get a conviction without a statement,
even on the less serious charge of possessing goods obtained
by crime. For reasons that are still not clear, Harder sang long
and loud for police about his criminal activities. And he named
Driskell as his accomplice in every crime.
By Nov. 10, three days after
he was arrested, Harder remained in police custody and had yet
to contact his lawyer, Tim Killeen. That did not prevent police
from taking a second statement from Harder that detailed no fewer
than eight thefts involving more than $50,000 in stolen automobiles
and parts, tools, electronics, heaters and automotive equipment.
In each crime, Harder identified Driskell as his accomplice.
"I hope by telling the truth it will help," police
quote Harder saying at the end of the second statement. "I
know I've made mistakes. The truth has come out, I've said it
in this statement because I have done wrong and I feel bad about
it."
Just after 10 p.m., a few hours
after Harder finished giving the second statement, two Winnipeg
police officers knocked on the door of Jim Driskell's Des Meurons
Street home and arrested him. Driskell knew his garage was raided
and Harder had been arrested, so the late-night visit from police
wasn't unexpected. He denied any involvement with the theft of
any of the items found in the garage, but Driskell knew he was
in a precarious situation and immediately asked to call his lawyer,
Ian Garber. After talking briefly with Garber, and watching as
the police searched his house, Driskell was cuffed and taken
away.
He was put in an interview
room at the Public Safety Building and read his rights. Police
then showed him both of Harder's statements, and allowed Driskell
to read them. Sgt. Mike Ashley, one of the arresting officers,
spoke first. "As you can see, there's strong evidence there,
combined with all the property found in your shop at 426 Deschambault.
What do you think of that?"
Driskell didn't look up from
the table in the interview room. "It looks pretty bad for
me."
"Do you wish to comment
on these offences?" Ashley continued.
Driskell shook his head. "I've
got nothing to say until I speak to my lawyer."
* * *
Ian Garber could not have been
more unimpressed by the charges against his client.
Although he had been a lawyer
for only five years, Garber had already waded through the torrent
of stolen goods cases that choked the Winnipeg court dockets.
As Garber saw the case against Driskell, police had arrested
Harder, squeezed him to make a statement implicating another
man, and then turned the whole mess over to the Crown's office
to be sorted out by lawyers. It was a typical, sloppy bit of
work that keeps the justice system humming along.
"When I looked at the
fact scenario it was readily apparent to me that the person responsible
for all the stolen material was Harder," Garber said in
an interview. "The odds are, based on my experience, was
that the Crown would take a plea against Harder and would drop
the charges against Driskell."
Garber's confidence was backed
up by an important legal axiom: unless Harder was willing to
testify in court, the statements he gave implicating Driskell
were inadmissible. And very quickly on, Garber would find out
that ratting on Driskell in open court was never part of Harder's
plan.
At this time, cases like Driskell's
went through screening court before setting a date for a preliminary
hearing. Screening court allowed Crown attorneys to meet with
defence lawyers to determine whether cases need to go to trial,
or can be resolved with a plea. The principle behind screening
court is simple: if the Crown were to try each and every criminal
case, the sheer volume would bring the court system to a standstill.
In this case, Garber dealt
with one of the best Crown attorneys to ever work screening court,
Raymond Wyant. Wyant is currently the chief judge of the provincial
court. Back then, it was Wyant's job to look at each case and
cull the losers that could be resolved with plea bargains or
dismissals. In January 1990, Garber approached Wyant and immediately
indicated Driskell was going to plead not guilty to all charges.
Garber then focused on the fact that other than Harder's statement,
there was no other evidence implicating Driskell to the thefts.
Police had not even bothered to fingerprint any of the stolen
goods.
Garber would speak to Wyant
again in March, at which time Wyant indicated he was already
speaking to Tim Killeen, Harder's lawyer. The implication was
that Harder had no intention of testifying against Driskell.
Garber immediately told his client that it appeared Perry wasn't
going to implicate him in the thefts, which would leave the Crown
only one option. "I was definitely left with the impression
that if and when Harder pleaded guilty to the charges, the Crown
would not be proceeding against Driskell," Garber said.
Tim Killeen also had reason
to believe the case against Harder was a lot weaker than first
presented. First and foremost, Killeen said he had a good chance
of having the confession declared inadmissible because Harder
did not have contact with a lawyer during the three days in which
he made his statements. Without those statements, police had
little or no evidence against Harder for any charges, save for
the Atco Enterprises heist. Again, according to Killeen, Wyant
agreed to proceed with a plea bargain on a smaller array of charges
in exchange for a prison term of no more than three years.
Killeen said Harder was almost
relieved at the prospect of a plea. Although he wasn't keen to
do jail time, the three-year sentence he expected to receive
would probably end up being as little as eight months if he behaved
himself at Stony Mountain. Harder was worried about Driskell
and how he would react to the whole mess, Killeen said. However,
at no time did Harder indicate he wanted to testify against Driskell
to get a better deal, Killeen said.
Even with a deal on the table,
the case would drag on for months. Killeen said proceedings were
adjourned four times, all at Harder's request. Killeen said his
client had two motives for requesting the delays. First, Harder's
girlfriend, Sheri-Lynn Bluebird, was about to have his baby and
he wanted to be present for the birth. Second, like many boosters
facing jail time, he wanted to delay his incarceration as long
as was possible.
As the case wound its way through
the court system, all indications were that Driskell and Harder
were still friends. At each of the four remands, the two would
be seen together talking quietly in the courtroom prior to their
appearance, or afterwards in the Law Courts hallways. Following
one court appearance on Dec. 12, 1989, Garber said he was standing
outside court with Driskell when Harder approached them and apologized
for getting Driskell involved. "Harder said the statement
wasn't what he actually said to the police, but what they told
him to say," Garber said. "He said he only signed it
to stop the cops from beating him. He also said he was sorry
if he had caused Jim any difficulty."
A similar conversation took
place March 14, 1990, when Harder once again approached Driskell
and Garber in the Law Courts. Garber had been telling Driskell
about his conversations with the Crown, and the fact the charges
were likely to be dropped. "Perry heard that part of the
conversation and indicated that he was glad things would be working
out well for Jim," Garber said. In April, Garber said he
got confirmation from Killeen that Harder was going to plead
out on reduced charges and would not be testifying. Garber related
this information to Driskell immediately.
The final court appearance
for both men was scheduled for June 21, 1990. However, shortly
after 10 a.m. when Driskell and Garber entered Courtroom 306,
they discovered that Harder was not present. Garber had intended
to request a discharge for Driskell based on Harder's plea bargain,
and his failure to appear made that outcome even more likely.
When he learned that Harder was a no-show, and that the Crown
did not ask any other witness to attend court that day, Judge
Arnold Connor issued a warrant for Harder's arrest and discharged
Driskell on all counts.
"Because Ian had said
that the Crown cancelled all the witnesses and because Perry
didn't show up, I wasn't that worried," Driskell would recall.
"But when it did get discharged, it was still a relief.
I thought, I could get on with my life now.''
Driskell said he remembered
one other thing from that day in court. One of Perry's best friends,
Harry Boomhower, was in the courtroom. Harder was very close
to Boomhower, and called the elder man his "uncle."
"When I saw Harry I thought,
'That's funny, I would have expected Perry to come to court with
Harry.'"
* * *
Passengers on the Prairie Dog
Central got a lot more than they bargained for on Sept. 30, 1990.
As the vintage tourist train
made its way out of the city on its typical Sunday afternoon
trip north, some of the railroad enthusiasts noticed what appeared
to be a human body, half buried along the side of the railway
bed. They contacted CP Rail police, who in turn called in the
Winnipeg Police homicide unit.
The badly decomposed body had
been buried in a shallow grave. It appeared to the first officers
on the scene that animals may have unearthed the grave, as scraps
of the victim's clothes were strewn about the scene. It was at
first impossible to identify the victim or the circumstances
that led to death, save for one inescapable conclusion. "I
can't think of any other explanation for how or why a body would
be buried in that fashion," police spokesman Eric Turner
said. "We are treating the scene as if it was a homicide
scene."
Three days later, a search
of missing persons reports and dental records allowed police
to identify the victim as Perry Dean Harder. An autopsy indicated
Harder had been shot at least three times in the chest with a
.22-calibre gun.
The discovery of Harder's body
shocked and saddened his family, who officially reported him
missing on July 9. Henry Harder, Perry's father, described his
son as a "happy-go-lucky guy and a good son" who had
an unfortunate compulsion to steal. "There was no reason
for anybody to knock him off," Henry Harder told a Winnipeg
newspaper. "He was a very good kid. He just couldn't leave
other people's things alone."
Henry Harder remembered one
other cryptic exchange he had with his son the last time the
two talked. "Perry was afraid he was going to die. He used
to come over here and help me drive my truck. And one time he
told me that 'they' were going to kill me.
"He just never said who
'they' were."
© 2003 Winnipeg Free Press. All Rights Reserved.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
