|
Cotler
orders new trial for Driskell | > > >
 January 25, 2005: The Federal government released the
first national examination of the reasons for so many wrongful
convictions in Canada. This should be required reading for every prosecutor,
cop and criminal defence lawyer in the country. News
reports
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
(4)
- Pressure mounts on police
chief
- Crown challenges his
claim it was told of '93 findings
By Dan Lett and Leah Janzen,
November 26th, 2003
A major rift has opened between
the Winnipeg Police Service and Manitoba Justice over the James
Driskell murder case.
Manitoba's deputy attorney
general alleged yesterday that Police Chief Jack Ewatski failed
to provide Crown prosecutors with evidence uncovered in an internal
review of the original murder investigation.
Just hours after Ewatski told
reporters that police provided prosecutors with "all available
evidence" on the Driskell case, Bruce McFarlane issued a
statement indicating his department was never told about some
of the findings in the 1993 review of the case.
McFarlane said Ewatski's claim
was "inconsistent with the information in the Crown's file."
The homicide review, which
was not made public for more than a decade, was only provided
to Manitoba Justice three weeks ago as part of the federal government's
investigation of Driskell's claims he was wrongly convicted.
When it was finally examined
by prosecutors, it was determined "a number of issues (the
review) explores are not reflected in the documents in the Crown's
office," McFarlane said.
Ewatski said in an interview
last night he wants to meet Crown officials this morning to discuss
what he stated at his news conference yesterday, and to address
any misunderstanding.
"I don't know where the
gap is," he said. "All evidence we reviewed was in
the Crown's possession. I'll stand by that report."
Ewatski also said there was
no bad blood between his office and the provincial Justice Department.
"And certainly not a rift
between us and the prosecutions office. That is not the case."
Ewatski also said the current
controversy would not affect his postion with the city. He has
been in talks with the City of Winnipeg this fall to extend his
five-year contract, which expired Nov. 3
"I am doing the job I
was tasked to do. I am trying to do it to the best of my ability,"
he said.
McFarlane's statements yesterday
added to the growing pressure on Ewatski over his decision not
to release the homicide review, which Driskell's lawyers believe
will be a key to overturning his first-degree murder conviction.
Ewatski said his 175-page review
of the 1991 Driskell investigation -- which was finally released
to the public Monday on the order of Court of Queen's Bench Associate
Justice Jeffrey Oliphant -- contained no new evidence, and that
everything that was uncovered was provided to Crown prosecutors.
Ewatski's claim the report
contains no evidence supporting Driskell's claims of innocence
is being challenged on a number of fronts.
In ordering Ewatski's review
released to the public, Justice Oliphant -- who admitted to reading
the 175-page review several times -- said its contents "are
relevant not only to (Driskell's) application for judicial interim
release, but also in my view, in assisting in demonstrating his
conviction for first-degree murder may have been a miscarriage
of justice."
Based in large part on Ewatski's
review, and DNA tests that ruled out the relevance of three hairs
used to convict Driskell, the federal Justice Department has
ordered an investigation on the basis that a miscarriage of justice
likely occurred.
Tomorrow, Court of Queen's
Bench Justice John Scurfield will hear an application to release
Driskell on bail pending the completion of the federal investigation
of his claims of innocence.
Ewatski would not comment on
the contents of his review, but repeatedly noted there was "no
new evidence" contained in the report. He also said it was
not the responsibility of the Winnipeg Police Service to forward
any information directly to defence counsel or "anyone other
than the Crown."
Ewatski said "all the
evidence produced by police was provided to the Crown,"
but he also noted that a copy of his report, which many including
Driskell's legal counsel argued contains new evidence, was not
viewed by anyone outside the Winnipeg Police Service.
Driskell has been in prison
since 1991 for the first-degree murder of his friend Perry Dean
Harder. Convicted without a witness, confession or murder weapon,
Driskell has steadfastly maintained his innocence.
The Ewatski review of the Harder
investigation was sparked by media reports in 1993 suggesting
Driskell was wrongly convicted, and a tip that a police officer
was involved in the murder. Ewatski and three other senior officers
were asked by then-chief Dale Henry to determine whether police
had acted improperly at any stage of their investigation.
The six-month review concluded
"there was no new evidence that would lead us to believe
James Driskell was not involved in the death of Perry Dean Harder."
The review did contain a number
of new facts, including evidence that Winnipeg police offered
a key witness, Ray Zanidean, immunity from arson charges in Swift
Current without seeking approval from Saskatchewan Justice. The
review also concluded that Zanidean "very likely" committed
perjury when he testified against Driskell, and that he tried
to recant his testimony shortly after Driskell was convicted.
At several points in the report,
Ewatski and the three other officers who helped with the review
noted that some findings could be used successfully by the media
to embarrass Winnipeg police and "cast a shadow of doubt
and suspicion" on the Driskell conviction.
There were tough questions
yesterday also for Manitoba Justice Minister Gord Mackintosh,
who is facing allegations senior members of his department were
also guilty of failing to disclose evidence on the Driskell case.
McFarlane said he is disturbed
by allegations Justice officials withheld crucial information
from Driskell's defence team. But he did not admit the province
made any mistakes in the handling of the case.
He said he's pleased an independent
review of the case is underway, despite the fact it took over
10 years to be launched.
Mackintosh refused to say whether
the Crown will oppose Driskell's bail application.
The thorniest issue for Mackintosh
is the unauthorized immunity deal offered to Zanidean, which
was detailed in letters to senior Manitoba prosecutors from the
Saskatchewan Justice Department in January 1992, five months
after Driskell's conviction and 10 months before his appeal.
Saskatchewan officials urged
Manitoba to provide the information to Driskell's lawyers as
part of ongoing legal obligations to disclose all relevant materials
to the defence.
The information was sent directly
to Bruce Miller, who is now a provincial court judge, but who
was director of prosecutions for Manitoba Justice in 1992. Miller
elected not to provide the information to Driskell's lawyers,
and instead provided it to Crown prosecutor George Dangerfield
to "make whatever use of it is appropriate in the circumstances,"
as Miller worded it in a memo to Dangerfield.
Miller continued to discuss
the Saskatchewan materials with Dangerfield and Stu Whitley,
then the assistant deputy minister of justice, well into 1993,
months after Driskell's appeal was turned down.
Miller declined to comment
on the revelations yesterday. Dangerfield could not be reached
for comment. Whitley, now counsel with the federal Justice Department
in Vancouver, directed all questions on the Driskell case to
McFarlane, who declined to comment.
This is not the first time
allegations of failing to forward evidence have been levelled
at Dangerfield. In 1981, Dangerfield was the lead prosecutor
on the Thomas Sophonow case. It was later proved Sophonow was
wrongfully convicted of the murder of Barbara Stoppel.
Justice Peter Cory, who led
an inquiry into Sophonow's conviction in 2001, uncovered numerous
instances in which the Crown failed to share vital information
with defence lawyers.
Mackintosh said the coincidence
was "interesting" but did not commit to conducting
his own review of the Crown's role in Driskell's conviction.
Police chief blasted:
Failure to reveal secret immunity deal 'inexcusable'
By Dan Lett, November 25th,
2003
FOR more than a decade, Winnipeg
Police Chief Jack Ewatski failed to disclose evidence about the
James Driskell murder case that showed police struck a secret
immunity deal with a key Crown witness.
Some of the most senior officials
from Manitoba Justice were alerted to the unauthorized immunity
deal to save the witness from facing arson charges in Saskatchewan.
But Justice officials they failed to disclose it to Driskell's
lawyers despite the urging of the Saskatchewan Justice Department.
Ewatski's failure to disclose
this information was "inexcusable," said James McCloskey,
who has investigated the Driskell case as head of New Jersey-based
Centurion Ministries, a non-profit group that fights for the
wrongly convicted.
"This conduct is shameful,"
said McCloskey, who has helped to free more than 20 life or death-row
prisoners in Canada and the United States. "He was hiding
evidence he knew would jeopardize the conviction of Driskell
if it ever saw the light of day. If the jury knew all this, Mr.
Driskell would never have spent one day in prison."
Driskell has been in prison
since 1991 for the first-degree murder in Winnipeg of his friend
Perry Dean Harder. Convicted without a witness, confession or
murder weapon, Driskell has steadfastly maintained his innocence.
A review by Ewatski of the
Harder investigation was sparked by media reports in 1993 suggesting
Driskell was wrongly convicted. Ewatski, who was an inspector
at the time, and three other senior officers were asked to determine
whether police acted improperly in their investigation.
Although Ewatski has maintained
there is nothing that supported Driskell's claim of innocence
in his 175-page report, it does detail the allegation by the
RCMP that to secure testimony from a key Crown witness, Reath
"Ray" Zanidean, Winnipeg police offered Zanidean immunity
in an August 1990 arson in Saskatchewan.
Zanidean admitted to the arson
while testifying against Driskell, but denied that he was offered
immunity in exchange for his testimony.
The Ewatski review noted RCMP
had identified Zanidean as the main suspect in the fire, which
levelled a home owned by Zanidean's sister. RCMP investigators
contacted Winnipeg police and told them of their interest in
Zanidean, who was known to be living in Winnipeg at the time,
the review said.
The review stated that no official
immunity deal was offered by the Saskatchewan Justice Department,
or sought by Manitoba Justice. It also noted the RCMP in Swift
Current were keen to pin the arson on Zanidean.
There were suggestions Winnipeg
police asked their Saskatchewan counterparts to hold off on their
investigation until after the Driskell trial. However, when RCMP
officers tried to jump-start their investigation, they were told
by Winnipeg police a deal had been offered to free Zanidean from
the Swift Current arson charges, the report stated.
Ewatski interviewed one of
the RCMP investigating officers, who alleged that Winnipeg police
"created a set of circumstances that would ensure the RCMP
arson investigation would be scuttled." The report also
quoted the RCMP officer relating a conversation with Winnipeg
police where it was clear "part of the deal for Zanidean's
testimony was that he not be charged for the 1990 arson."
Ewatski was also told by the
RCMP that their arson investigation showed that Zanidean perjured
himself at Driskell's trial when he admitted to the arson, but
claimed it was for revenge and not as part of an insurance fraud.
Ewatski declined to comment
yesterday, saying police would hold a news conference today to
comment on different aspects of the report.
Driskell's legal team eventually
obtained the Ewatski report after making an application to the
federal Justice Department under Sec. 696 of the Criminal Code,
which allows the minister of justice to intervene in cases where
a miscarriage of justice has taken place. However, Driskell's
lawyer, James Lockyer, was asked to sign an undertaking preventing
him from making the report public.
After the Ewatski report was
filed as evidence in a bail application, expected to be heard
later this week, media outlets including the Winnipeg Free Press
and CBC immediately applied to have the report released.
Associate Chief Justice Jeffrey
Oliphant agreed that while the report might be "embarassing"
for the Winnipeg Police Service, it was not a strong argument
for keeping it from public view. Oliphant said that after reading
the report, he believed it was not only relevant to Driskell's
bail application, but also to his attempts to prove he may be
the victim of a miscarriage of justice.
In addition to the Ewatski
report, Driskell's legal team also obtained a series of letters
which showed senior members of Manitoba's justice system were
alerted by Saskatchewan about the unauthorized immunity deal,
and the possibility that Zanidean had committed perjury at Driskell's
trial. But the officials failed to disclose the information to
Driskell's lawyers.
In January 1991, Saskatchewan
Justice wrote to Bruce Miller, the associate chief judge of the
provincial court who was then director of prosecutions for Manitoba
Justice, with details of the dispute between the RCMP and Winnipeg
police on the question of immunity for Zanidean.
Saskatchewan officials asked
that Manitoba immediately provide these materials to Driskell's
lawyer, who was preparing for an appeal scheduled for December
1992. This advice was based on the Stinchcombe decision in the
Supreme Court of Canada's in the fall of 1991, which required
the disclosure of all police and Crown files to counsel for the
defence.
"Although not our prerogative,
it would also be our recommendation that disclosure of this information
be made to counsel for Mr. Driskell at your earliest opportunity,"
wrote Richard Quinney, executive director of prosecutions for
Saskatchewan Justice. "The recent Stinchcombe decision from
the Supreme Court of Canada clearly establishes our ongoing obligation
to continue disclosure."
In July 1992, five months after
being contacted by Saskatchewan, Miller forwarded the materials
to George Dangerfield, a senior Crown attorney who prosecuted
Driskell and was also preparing for the appeal. Despite being
urged by Saskatchewan to disclose the materials to Driskell's
lawyers, Miller left it up to Dangerfield to decide what to do.
"I trust you will make whatever use of it is appropriate
in the circumstances," Miller wrote to Dangerfield.
There is no record of further
discussion of the matter until March 1993, more than three months
after Driskell's appeal was turned down, when Miller once again
asked Dangerfield what to do with the Saskatchewan materials.
"Was that information disclosed to counsel for Mr. Driskell?
If no, should we do so at this time?" Miller wrote.
Dangerfield returned the memo
with a handwritten note indicating that he does not remember
receiving the materials. "I hesitate to agree to send it
to counsel without first looking at it," Dangerfield wrote.
Holes emerge in Manitoban's
conviction: Report suggests Driskell was a victim of deal-making
By KIRK MAKIN AND GRAEME
SMITH, Nov. 25, 2003
Gaping holes appeared in a
12-year-old Manitoba murder conviction yesterday after the release
of a long-suppressed police report suggesting a key underworld
witness was told he would not be charged in an arson prosecution
in return for his testimony against defendant James Driskell.
"We can see how a perception
of deal-making exists in the minds of individuals who are calling
for a review of the investigation," the report said.
The report also contains a
slew of revelations about unsavoury Crown witnesses who used
the Driskell investigation to save their own skins, and, in at
least one case, benefit financially. It quotes one potential
Crown witness as saying investigators punched and beat him until
he caved in and supplied statements that damned Mr. Driskell.
The report and some accompanying internal correspondence also
reveal a major squabble between Saskatchewan and Manitoba police
about confusion over the arson investigation, including accusations
of deceit by one officer against another.
Mr. Driskell is imprisoned
in Stony Mountain penitentiary. He has consistently asserted
his innocence since the day he was arrested for the murder of
his friend Perry Harder.
The report released yesterday
was prepared in 1994 by Winnipeg Police Chief Jack Ewatski and
senior staff after public pressure by the Winnipeg Sun and lawyer
Greg Brodsky. At the time, all its authors would say in public
was that they endorsed the validity of the conviction.
They warned in the report that
releasing the findings "could and probably would be a serious
source of embarrassment if this matter is reviewed in another
type of public forum."
"It might be embarrassing,
but that's not good enough to keep it from the public eye,"
Associate Chief Justice Jeffrey Oliphant of Manitoba Court of
Queen's Bench said yesterday, ordering the release of the report.
"The innocence and the liberty of Mr. Driskell are at stake
here. Nothing can trump that."
"We are thrilled that
finally, after 10 years, this report will for the first time
see the light of day, and be in the public domain where it belongs,"
said Jim McCloskey, founder of Centurion Ministries, a U.S.-based
group that has been investigating the Driskell case. "There's
no question in my mind that not only did Mr. Driskell not get
a fair trial, but also he's a completely innocent man. He had
nothing to do with this crime."
Mr. Harder, 30, was last seen
alive on June 16, 1990, after he left his rooming house in a
pickup truck. Three months later, his remains were discovered
in a shallow grave just outside Winnipeg. He had been shot at
least once.
Mr. Harder and Mr. Driskell
ran a "chop shop" together, cutting up stolen vehicles
and reselling the parts. Just five days after his disappearance,
Mr. Harder had been scheduled to appear at a preliminary hearing
involving charges against Mr. Driskell for possessing stolen
goods.
On Oct. 23, 1990, Mr. Driskell
was charged in the murder. A jury convicted him on June 14,1991.
He was sentenced to life imprisonment without parole for at least
25 years.
The case began to erode last
year. DNA tests arranged by the Association in Defence of the
Wrongly Convicted showed that three hairs used to link Mr. Driskell
to the killing did not come from the victim, as had been alleged
at his trial.
AIDWYC lawyers Alan Libman
and James Lockyer say the contents of the internal police report
are so explosive that it is only a matter of time before Mr.
Driskell's first-degree murder conviction is scuttled and he
takes his place in an expanding line of wrongfully convicted.
"The significance of the
undisclosed information to the applicant's right to full answer
and defence is incalculable," they wrote in a brief to the
federal government seeking Mr. Driskell's exoneration. "The
miscarriage of justice caused by their non-disclosure has been
compounding day by day ever since."
Judge Oliphant also released
a sheaf of correspondence yesterday in which Saskatchewan officials
spoke of an arson they believed had been committed by Crown witness
Reath Zanidean. They strongly suggest to their Manitoba counterparts
that they disclose the tangle of evidence against Mr. Zanidean
and the way in which he was using his potential testimony against
Mr. Driskell to blackmail police into giving him immunity in
the arson case.
Winnipeg Police have repeatedly
denied in public that Mr. Zanidean was given immunity.
"Time and time again,
Zanidean committed purjury. The RCMP knew it, the Winnipeg Police
knew it, and they sat on it for 12 years," Mr. McCloskey
said yesterday.
The AIDWYC lawyers will be
seeking Mr. Driskell's release on bail on Thursday.
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
Ottawa
reviewing murder conviction
Dan Lett, Winnipeg Free
Press, November 21st, 2003
THE federal Justice Department
has launched a full investigation of the James Driskell murder
conviction after finding reasonable grounds that a "miscarriage
of justice likely occurred."
And just days before a court
hears an application to free Driskell on bail while Ottawa investigates,
Manitoba Justice has withdrawn its lawyer from the proceedings,
with no explanation. A private lawyer has been appointed as an
independent prosecutor to represent the Crown.
Earlier this year, Driskell
asked the federal government to intervene in his case under Sec.
696 of the Criminal Code, which gives Justice Minister Martin
Cauchon the power to overturn a conviction, order a new trial
or refer a case for further review by an appellate court.
Driskell has been in prison
since 1991 for the first-degree murder of his friend, Perry Dean
Harder, of Winnipeg. Convicted without a witness, confession
or murder weapon, Driskell has steadfastly maintained his innocence.
In a letter filed with supporting
materials for the bail application, David McNairn, counsel with
the Justice Department's Criminal Convictions Review Group in
Ottawa, confirmed he found some merit in Driskell's claims of
innocence.
"On the basis of my preliminary
assessment of Mr. Driskell's application, I am satisfied that
there may be a reasonable basis to conclude that a miscarriage
of justice likely occurred," McNairn wrote Nov. 4.
There are four different stages
in the Sec. 696 application. After a preliminary assessment,
if there is new and material evidence pointing to a miscarriage
of justice, a full investigation is launched.
At the completion of that investigation,
CCRG staff prepare advice for the minister. The final stage involves
the minister's decision about whether to intervene.
Driskell appeared yesterday
in a Winnipeg courtroom, where a judge confirmed Nov. 27 as the
date for his bail application. Manitoba has yet to indicate whether
it will oppose his release.
However, in a surprising twist,
court was told yesterday that senior Crown attorney Dale Schille
was withdrawing. Private lawyer Bill Olson announced he had been
retained to take over the case.
Manitoba Justice contracts
private lawyers to act as independent prosecutors in cases where
the province has a conflict of interest, or when it is determined
the actions of the Crown will be at issue. Schille had been assigned
to the case as the senior-most prosecutor in the province with
no previous contact with the Driskell file.
Olson represented Manitoba
Justice at the Thomas Sophonow inquiry in 2001. Allegations of
prosecutorial misconduct were a central theme of the inquiry.
Deputy Justice Minister Bruce
McFarlane declined to comment on the decision to withdraw government
lawyers from the bail proceedings.
The bail application was brought
forward earlier this month by Toronto lawyer James Lockyer, senior
counsel with the Association in Defense of the Wrongly Convicted,
and Winnipeg lawyer Alan Libman.
Earlier this year, Lockyer
won bail for Romeo Phillion, who stands convicted of the 1967
murder of an Ottawa firefighter. The bail application was based
on the revelation that police withheld evidence supporting Phillion's
alibi.
Lockyer argued successfully
before the Ontario Superior Court that based on the strength
of that evidence, it was unconstitutional to keep Phillion behind
bars while Ottawa reviews his claims of innocence.
In the last year, a significant
body of new evidence pointing to Driskell's innocence has been
uncovered.
In the original investigation,
police found what they claimed were three hairs from the victim
in a van owned by Driskell. At trial, prosecutor George Dangerfield
argued the hairs were positive evidence that Driskell used the
van in the murder.
DNA tests performed last year
proved that not only were the hairs not from Harder, they were
from three different people.
In addition, a Free Press investigation,
the results of which were published in March, revealed additional
new evidence in the case, including more than $80,000 in payments
to two key Crown witnesses.
The witness protection agreements,
which were being negotiated during the trial, were never revealed
to the jury.
Lockyer and Libman have also
submitted a 175-page review of the homicide investigation written
by Winnipeg police Chief Jack Ewatski and a committee of senior
police officers in 1993.
Ewatski has consistently refused
to release the report to Driskell or the media on the basis that
it is confidential and contains nothing that would help Driskell
prove his innocence.
However, in an October 2000
interview with the Free Press, Ewatski and Insp. Bob Hall, co-author
of the review, answered questions based on their work. Several
important and previously unknown facts were revealed in that
interview.
The most alarming revelation
was that the police were aware a key Crown witness tried, shortly
after Driskell's trial was completed, to recant his testimony
to Driskell's lawyer, Greg Brodsky, during the trial. Despite
knowing this, Ewatski never interviewed the witness as part of
his review, and never revealed his discovery to Driskell's lawyers.
The Ewatski review has not
yet been made public with other documents supporting the bail
application because of promises made by Driskell's legal team
not to disclose the document to a third party.
Associate Chief Justice Jeffrey
Oliphant of Court of Queen's Bench will hear arguments Monday
about whether to keep the report sealed. Several media outlets,
including the Free Press, will argue for its release.
dan.lett@freepress.mb.ca
Court to review murder
investigation: Ewatski loses long struggle to keep confidential
report under wraps
Fri Nov 7 2003, By Dan Lett,
Winnipeg Free Press
A confidential police report
on the James Driskell murder investigation -- which Chief Jack
Ewatski has fought strenuously to keep under wraps for a decade
-- will finally find its way to a Winnipeg courtroom next week.
The detailed review of the
police investigation of the 1990 murder of Perry Dean Harder,
for which Driskell was convicted, has been pursued by Driskell
and his lawyers for years as part of a bid to win him a new trial.
Now, that report will be filed
along with an array of other new evidence in the case to support
an extraordinary bail application pending a review of Driskell's
claims of innocence by the federal justice department. Winnipeg
lawyer Alan Libman, part of the legal team representing Driskell,
yesterday told Justice John Scurfield of the Manitoba Court of
Queen's Bench the police report would be filed early next week
along with a legal argument to release Driskell on bail.
Driskell, dressed in a leather
and melton jacket and wearing handcuffs, stood quietly in the
prisoner's box as Libman made his submission. It was the first
court appearance for Driskell since June 1991 when he was convicted
of first-degree murder.
Libman said the report would
be "sealed," meaning it will be viewed only by the
court, and not available to the public. Libman declined to comment
on why the report was sealed, or its contents. The report was
commissioned in March 1993 by former Winnipeg Police Chief Dale
Henry after media reports raised questions about Driskell's guilt.
Ewatski, then an inspector,
was assigned with another senior officer, Insp. Bob Hall, to
conduct the review.
The conclusion of the report
was that the review "found nothing which would lead us to
believe James Patrick Driskell was not involved in the death
of Perry Dean Harder." Henry, and then Ewatski, refused
to release the full text of the 175-page report.
However, in October 2000, Hall
and Ewatski agreed to an interview with the Free Press to answer
questions based on their review of the Driskell case. In that
interview, several new and startling facts were revealed which
encouraged Driskell's lawyers to demand access to the report.
These new facts include:
- An admission a Winnipeg police
officer was implicated in the Harder murder;
- Confirmation that police negotiated
a witness protection agreement for a key Crown witness that was
never revealed to the jury;
- That despite evidence that
same witness tried to recant his testimony after Driskell was
convicted, Hall and Ewatski failed to interview the witness for
their review.
Scurfield adjourned the bail
motion for two weeks to give provincial and federal prosecutors
time to review the legal arguments and supporting evidence, including
the Ewatski report.
Driskell was returned to Stony
Mountain Penitentiary north of Winnipeg. This is only the second
time a bail application of this kind has been brought before
a Canadian court. In July, Toronto lawyer James Lockyer successfully
won bail for Romeo Phillion, who stands convicted of the 1967
murder of an Ottawa firefighter.
New evidence supporting his
evidence is before the federal justice department as part of
an application for ministerial intervention under Sec. 696 of
the Criminal Code.
Lockyer, who is also part of
Driskell's legal team, successfully convinced an Ontario Superior
Court judge it would violate Phillion's constitutional right
to liberty by leaving him in jail while Ottawa reviews compelling
new evidence of his innocence.
Winnipeg police spokesperson
Const. Shelly Glover said police wouldn't comment on the bail
application, or the evidence being introduced, because the matter
is now before a judge.
Manitoba Crown Attorney Dale
Schille said the province has not decided whether to oppose Driskell's
bail application. That determination can not be made until there
has been a full review of the legal arguments. Clyde Bond, a
federal prosecutor representing the Attorney General of Canada,
said he will require time as well to assess all the materials
filed in support of the bail application.
"All the Attorney General
of Canada is wanting at this point is to look at the materials,"
said Bond.
The homicide review could inject
explosive new evidence into a case that has already been significantly
weakened.
Driskell's lawyers have already
succeeded in eliminating a key piece of physical evidence from
the original case.
Police found what they claimed
were three hairs from the victim in a van owned by Driskell which,
it was argued at trial, was used in the murder. DNA tests performed
last year proved that not only were the hairs not from Harder,
they were from three different people.
dan.lett@freepress.mb.ca -- with files from Bruce Owen
- James Driskell has served
12 years for murder; forensic tests now suggest he may be innocent;
- Convicted by a hair,
man seeks new trial
By Kirk Makin, The Globe
and Mail, March 15, 2003
Three hairs were the only physical
evidence that convicted James Driskell of killing his friend
Perry Harder.
And even though new tests have
shown that the hairs did not come from the victim, Manitoba refuses
to order a new trial.
The test results made public
yesterday have prompted Justice Minister Gordon McIntosh to review
all serious criminal cases in which hair samples played a pivotal
role. But that is cold comfort for Mr. Driskell, 42, who has
languished in Stoney Mountain penitentiary since his 1991 conviction
for first-degree murder.
'Right from Day 1, it has been
pretty much hell,' Mr. Driskell said in a telephone interview.
'I've seen a lot of things I don't want to remember, but that
are going to stay with me for the rest of my life. Over the last
12 years, I can tell you there has been a lot of anger.
'I've been asked so many times:
'Did you kill Perry Harder?' The answer is always the same. I
didn't. I wouldn't kill anybody. He was my friend.'
The three hairs were in a van
that police say was used by Mr. Driskell to transport the 30-year-old
victim to his death. They were the only physical evidence in
the case. But in DNA tests arranged by the Association in Defence
of the Wrongly Convicted , a British lab recently said the hairs
did not come from Mr. Harder.
'The findings provide extremely
strong support for the proposition that the hairs from the van
originated from three individuals, none of whom was Perry Harder,'
a lab report concluded.
The father of eight children,
five of whom were born since he went to prison, Mr. Driskell
said he is not the only victim. 'It's not only you doing a life
sentence,' he said. 'The families do too.'
In the late 1980s, Mr. Harder
and Mr. Driskell ran a 'chop shop,' cutting up stolen vehicles
and reselling the parts.
On June 15, 1990, Mr. Harder
vanished, just five days before he and Mr. Driskell were to appear
at a preliminary inquiry on joint charges of possessing stolen
goods. Three months later, a passerby found his remains.
The Crown convinced the jury
that Mr. Driskell had killed Mr. Harder to ensure that he couldn't
implicate him in the court case. The Crown produced evidence
that:
· Mr. Harder was shot
with a .22-calibre rifle, a type of weapon Mr. Driskell was known
to have owned at one time.
· Two career criminals,
Reath Zanidean and John Gumieny, testified about hearing Mr.
Driskell plot to kill Mr. Harder.
· Mr. Harder's girlfriend
said he had been feeling under pressure from Mr. Driskell to
take the full rap on the stolen-goods charge, yet didn't want
to do so.
· A surreptitiously
recorded exchange between Mr. Driskell and a Crown witness, Shakiv
Kara, resulted in a handful of statements that could be interpreted
as admissions of guilt by the accused man. (Mr. Kara has disavowed
much of his testimony and accused police of intimidating him
into supporting their version.)
· RCMP analyst Todd
Christianson called the hairs found in the Driskell van strong
evidence. 'If the hair is consistent, that means it either came
from the same person as that known sample, or from somebody else
who has hair exactly like that,' he testified.
Within a year of the trial,
defence lawyers, a private detective and The Winnipeg Sun began
raising troubling issues. These included potential witnesses
who claimed police harassed them, and a phone call to defence
lawyer Greg Brodsky six days after the conviction.
A mystery caller said Mr. Zanidean
had fabricated his testimony on instructions from the police.
Police acknowledge that the call was made from Mr. Zanidean's
phone. They believe he called to stir up trouble and force authorities
to enhance his witness-protection program.
The Winnipeg Sun reported that:
· Saskatchewan police
had stopped investigating Mr. Zanidean in connection with a home
arson shortly after he agreed to testify against Mr. Driskell.
Winnipeg police deny such a deal.
· Forensic tests showed
that two shovels were used to dig Mr. Harder's grave, suggesting
at least two killers.
· Mr. Harder suffered
a broken nose several weeks before he disappeared, opening the
possibility that he had other enemies.
· Mr. Harder's lawyer,
Tim Killeen, denied having discussions with the Crown about his
client testifying against Mr. Driskell on the stolen-property
charges.
While authorities acknowledge
frailties in the case, including the unsavoury nature of several
Crown witnesses, they maintain this is typical of underworld
characters. They also note that Mr. Driskell is the only strong
suspect.
About two years ago, the Association
in Defence of the Wrongly Convicted took up the case. AIDWYC
lawyers Alan Libman and James Lockyer persuaded the Manitoba
Justice Department to pay almost $30,000 to have the hairs analyzed
again.
While the Justice Minister
has acknowledged that the new test results are 'unsettling,'
he told Mr. Driskell's lawyers that they do not tip the scales
toward granting a new trial, although the province will review
all cases involving hair as evidence.
'I think we will probably be
looking at the most serious charges,' deputy justice minister
Bruce MacFarlane said in an interview.
Mr. Lockyer wonders why Manitoba
will not reopen Mr. Driskell's case.
'This was the only forensic
evidence that incriminated Driskell,' he said. 'Why would Manitoba
have authorized the DNA testing if they were then going to turn
their backs on the results?'
Manitoba's response is that
it felt it was morally right to foot the bill.
'We felt that we should take
the high road and if there were any stone he felt ought to be
turned, we should turn it,' Mr. MacFarlane said.
He said that Manitoba prosecutors
recently reviewed the case and decided the verdict would have
been the same regardless of the hair evidence.
The best course now, he added,
is for federal justice officials to re-examine the conviction
using a Criminal Code review process that can lead to an acquittal
or a new trial.
The release of the new test
results is the second attempt to expose the Driskell case as
a wrongful conviction. The 1992 Winnipeg Sun articles prompted
the Winnipeg Police Service to conduct an internal review of
the case. The force concluded that it had done a fine job, but
refused to release its 175- page report.
Mr. MacFarlane added that if
Mr. Driskell has not applied for a Criminal Code review by July
1, the province may do so.
AIDWYC objects to federal reviews
on the ground that the Justice Department has a vested interest
in upholding convictions.
Mr. Driskell said he has his
own theories about who killed Mr. Harder, but it would be premature
to discuss them. 'I'm just hoping that this time, some people
are going to take this seriously,' he said.
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