|
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
(5)
- 'A continuing cover-up'
- Officials knew key
evidence in Driskell case withheld
-
- By Dan Lett, Winnipeg Free
Press, December 22nd, 2003
-
- MANITOBA Justice learned more
than three years ago that senior prosecutors withheld evidence
that could have won a new trial for James Driskell but did not
reveal their discovery despite repeated requests by his lawyers.
This latest revelation has sparked concern among Driskell's legal
team that some of the prosecutors in Manitoba Justice have been
trying to cover up mistakes made by their predecessors.
-
- Jim McCloskey, head of New
Jersey-based Centurion Ministries, which has freed more than
30 life and death-row prisoners, said there is evidence now that
the department is not being forthcoming about everything that
has transpired in Driskell's case.
-
- "My question is, who
prosecutes the prosecutors?" said McCloskey, who has worked
for more than a year on Driskell's case. "In my view, there
has been a continuing cover-up of this material. It was continually
withheld from the defence by everyone in the prosecutor's office
-- right up until the game was up this fall, and their backs
were against the wall and they had to give it up on the eve of
the bail application."
-
- Driskell, convicted of murder
in 1991, was released on bail last month after a barrage of new
evidence withheld during his original trial and appeal was finally
uncovered. Driskell remains on bail pending the results of a
federal review of his conviction.
-
- The new evidence included
letters sent in January 1992 to senior Manitoba prosecutors from
Saskatchewan Justice alleging Winnipeg police gave a key witness
in the trial, Ray Zanidean, a secret immunity deal for an arson
charge in Swift Current in exchange for his testimony. Saskatchewan,
which did not consent to the immunity deal, asked that the information
be disclosed to Driskell's lawyer in time for his appeal in December
1992.
-
- The letters, and a series
of internal memoranda showing the senior-most prosecutors in
the department were aware of the Saskatchewan materials, were
not disclosed until last month just prior to the bail application.
Justice officials claimed they had not known until then that
the evidence had never been disclosed.
-
- However, a continuing investigation
by the Free Press has found Manitoba Justice first uncovered
the letters in October 2000 as part of a review of the Driskell
case.
-
- Deputy Justice Minister Bruce
McFarlane said a Crown attorney reviewing the case, Dale Schille,
mistakenly assumed they had already been disclosed to Driskell's
lawyers. When it became clear the materials had not been disclosed,
they were immediately provided to Driskell's legal team, he said.
-
- "Speaking for myself,
in terms of the Saskatchewan correspondence, I see... how an
assumption was made," McFarlane said. "The assumption
turned out to be wrong."
-
- In July 2000, McFarlane said,
he asked the department to review the Driskell files to determine
if there was any concerns he received a fair trial. Schille was
assigned to examine the files.
-
- In an interview, Schille confirmed
he found the Saskatchewan correspondence and subsequent memoranda
showing that Bruce Miller, the former director of prosecutions,
George Dangerfield, who prosecuted Driskell, and assistant deputy
minister Stu Whitley were all aware of the existence of the Saskatchewan
materials.
-
- Schille said he instantly
understood the potential importance of the letters, but assumed
-- based on the reference to a "draft letter" being
prepared -- that the materials had been disclosed to Driskell's
lawyers after his appeal in December 1992. Schille said he assumed
that settled the issue of disclosure.
-
- "The defence should have
had that prior to the hearing of the appeal, but it looked like
at this point it was crying over spilled milk," Schille
said. "It had been done, albeit belatedly."
-
- Schille could not explain,
however, why he never checked with Driskell's former lawyer,
Greg Brodsky, to confirm whether he received the Saskatchewan
materials, and how he overlooked several obvious signs that Driskell
had no knowledge of the secret immunity deal, including:
- Numerous letters from Winnipeg
private investigator Janie Duncan, who continued for years after
Driskell's 1992 appeal to demand any details of an immunity deal
for Zanidean. Schille confirmed these letters, which continued
well into the late 1990s, were in the same file as the Saskatchewan
materials;
- Direct demands by lawyers
for the Association in Defence of the Wrongly Convicted (AIDWYC)
in 2001 and continuing right up until weeks before the bail application
for all information related to consideration, monetary and otherwise,
offered to Zanidean and another witness, John Gumieny.
- No mention of the Saskatchewan
materials in Driskell's application to the federal government
under Sec. 696 of the Criminal Code, which gives the justice
minister the power to order a new trial or refer a case to an
appellate court.
Schille confirmed he also excluded
the letters and memoranda from case files when they were shown
to AIDWYC lawyer Alan Libman in early 2003 to fulfil an agreement
to disclose all prosecution materials. Libman said he was shocked
to hear that Schille had uncovered the letters years before those
meetings.
"He never showed me the
documents," Libman said. "I'm at a loss to explain
the position that he thought we had them. If that's the case,
then why didn't he show them to me? That was the whole point
of the meeting, to see what we already had and what we still
needed."
McFarlane said he did not think
Schille had an obligation to raise the issues contained in the
letter -- in particular that senior prosecutors failed to disclose
relevant evidence prior to Driskell's appeal -- because ultimately
disclosure was made.
A more detailed investigation
of what Miller, Dangerfield and Whitley did, or did not do, back
in 1992 will be left to former provincial judge John Enns, who
has been asked to look at disclosure issues in the Driskell case.
Enns will first examine whether police provided all their evidence
to prosecutors, and then whether prosecutors disclosed everything
to defence counsel.
McCloskey said he believes
Schille had an obligation as a lawyer to immediately report the
failure of Miller, Dangerfield and Whitley to his superiors.
Alan Fineblit, executive director
of the Law Society of Manitoba, said a lawyer does not have an
obligation to report a colleague for professional misconduct.
However, if that misconduct is so grave it qualifies as possibly
criminal, then all lawyers are compelled to go to the authorities,
he added.
"If we become aware of
conduct that is maybe criminal, we have an obligation to report
it to law enforcement authorities," said Fineblit. Although
no prosecutor has been charged criminally for failing to disclose
relevant evidence, there is always a possibility that such behaviour
could be considered criminal if it was blatant and contributed
to a long incarceration, he added.
dan.lett@freepress.mb.ca
Chronology of events
- June 1991: James Patrick Driskell
is convicted of first-degree murder in the death of Perry Dean
Harder, and sentenced to life in prison with no hope of parole
for 25 years.
- January 1992: Saskatchewan
Justice writes to Bruce Miller, head of Manitoba Justice prosecutions
branch, alerting him that Winnipeg police promised a key crown
witness, Ray Zanidean, immunity for a Swift Current arson without
authorization from Saskatchewan Justice. Further, Saskatchewan
officials indicate they are convinced Zanidean committed perjury
while testifying against Driskell, and urge Miller to disclose
the evidence to Driskell's lawyers at the earliest opportunity.
Saskatchewan brings to Miller's attention a recent decision in
the Supreme Court of Canada, R. vs. Stinchcombe, which obligates
police and prosecutors to disclose all evidence to defence counsel.
- March 9, 1992: Saskatchewan
contacts Miller again, this time providing a copy of an RCMP
investigation into the Swift Current arson, showing how Zanidean
committed perjury when he testified against Driskell. Again,
Saskatchewan asks Miller to disclose these materials to Driskell's
lawyers.
- July 1992: Miller sends Saskatchewan
materials to Crown Attorney George Dangerfield, who prosecuted
Driskell and who argued against Driskell's appeal. Miller tells
Dangerfield he is leaving the material in his hands "for
whatever action you deem appropriate." He does not ask Dangerfield
to disclose the materials.
- December 1992: Manitoba Court
of Appeal denies Driskell's appeal for a new trial. The court
hears no mention of the Saskatchewan materials disclosed to Miller
and Dangerfield months earlier.
- March 11, 1993: Miller writes
to Dangerfield again, asking if "that information was disclosed
to Mr. Driskell? If not, should we do so at this time?"
Dangerfield returns the memo with a handwritten note indicating
that he does not recall the material, and that he hesitates to
agree to turn anything over to Driskell's lawyers without first
looking at it.
- March 16, 1993: Justice Minister
Jim McCrae announces he has called a review of the Driskell case
because of media reports questioning the conviction. That same
day, Dangerfield prepares a memo on the Driskell case and media
reports. In the four-page note, addressed to deputy attorney
general Ron Perozzo, Dangerfield dismisses criticism of the prosecution,
and repeats the evidence presented at trial. Dangerfield does
not include any of the new evidence from Saskatchewan in his
note to Perozzo.
- April 13, 1993: Miller writes
to assistant deputy minister Stu Whitley about the Saskatchewan
materials, indicating that on several previous occasions the
two men had discussed the issue of disclosure to Driskell's lawyers.
Miller stated in the memo that in his opinion, "it would
be inappropriate for us to withhold the information. From what
I gather it was due to an oversight that Mr. Dangerfield did
not address this issue when it was first brought to his attention
last July." Miller goes on to say that Dangerfield has been
asked to draft a letter to Driskell's lawyers, explaining the
delay. Greg Brodsky, counsel for Driskell has sworn an affidavit
indicating he never received that letter from Dangerfield and
never received the materials from Saskatchewan.
- July-October 2000: Following
more inquiries on the Driskell case, Manitoba Justice assigns
Dale Schille, a Crown attorney, to review the case files and
write a summary of any problems. Schille finds the Saskatchewan
letters, and the memos exchanged between Miller, Dangerfield
and Whitley. However, Schille said he thought the evidence had
been disclosed because of a reference to the draft letter, even
though he could not find the draft letter. In his summary, Schille
makes no mention of the Saskatchewan correspondence, or of the
failure of Miller, Dangerfield and Whitley to get the materials
to Driskell's lawyer prior to this appeal.
- November 18, 2003: After reading
the factum and all supporting materials for Driskell's bail application,
Schille alerts his superiors that it appears the Saskatchewan
letters were, in fact, never disclosed. An immediate meeting
is convened in the office of Deputy Justice Minister Bruce McFarlane,
where a decision is made to provide the Saskatchewan materials
to Driskell's lawyers the same day. Schille then suggests he
withdraw from the case as he may be required to be a witness
at the bail application, or some future court proceeding. Outside
counsel is then selected to carry on with the bail application.
dan.lett@freepress.mb.ca
© 2003 Winnipeg Free Press. All Rights Reserved.
Manitoba judge releases
Driskell on bail
By GREAME SMITHE,Globe
and Mail, Nov. 29, 2003
Pale and frightened, James
Driskell stepped into the cold sunlight of a Winnipeg winter
yesterday and savoured his first moment of freedom in more than
13 years.
Earlier that morning, a judge
granted Mr. Driskell bail pending a review of his murder conviction,
saying that new evidence raised "very serious concerns about
the accuracy of the conviction."
That allowed Mr. Driskell to
walk out of a downtown courthouse without handcuffs and leg irons
- a new experience he said was bewildering. "It's very scary
right now," he said. "I focused strictly on doing time,
a long time. I didn't put hope into anything. It's kind of a
shock."
The judge who released Mr.
Driskell also expressed shock at some of the evidence presented
in court.
In his oral decision, Mr. Justice
John Scurfield of Manitoba's Court of Queen's Bench said that
either the new DNA evidence in the case or the facts that emerged
about two key witnesses would have been enough to affect jury
deliberations in Mr. Driskell's 1991 trial.
That trial found him guilty
of killing his friend, Perry Dean Harder, partly on the basis
of three hairs found in Mr. Driskell's van that a police expert
testified had come from the victim. It was the only piece of
physical evidence linking Mr. Driskell with the crime. Years
later, a DNA test showed that the hairs didn't belong to Mr.
Harder and, in fact, came from three different people.
"It proves that a material
piece of evidence upon which the jury may have relied was wrong,"
Judge Scurfield said.
Other reasons for thinking
the jury may have decided differently, the judge said, were undisclosed
payments of at least $70,000 to witnesses, and the secret belief
of key witness Ray Zanidean that he was exchanging his testimony
for immunity against arson charges he was facing in Saskatchewan.
"It is reasonable to conclude
that the evidence of payment to the witnesses together with Mr.
Zanidean's belief that he was obtaining immunity in respect of
a serious charge could have constituted the straw that broke
the jury's confidence in these witnesses," the judge said.
Citing the fact that Mr. Zanidean
later recanted his testimony, and the Crown's failure to disclose
many of these items despite the urgings of Saskatchewan's Justice
Department, Judge Scurfield concluded that the case against Mr.
Driskell was flawed.
"The new evidence does
not simply identify procedural irregularities as suggested by
the Crown. It goes to the heart of their case."
At a press conference, Mr.
Driskell said he's grateful to the court and to the lawyers who
worked countless unpaid hours to gain his freedom. The 45-year-old
said he plans to spend some quiet time with his eight children
and 12 grandchildren, before eventually brushing up on his skills
in carpentry, automotive or electrical work and considering the
many job offers he's received.
Under his bail conditions,
he cannot leave Manitoba and must obey a curfew at his temporary
new home with friends in a town south of Winnipeg.
He appeared to be struggling
with conflicting emotions. "I haven't got a clue how I'm
going to deal with this yet," he said.
There is a bitter undercurrent
to his celebratory mood, he said, as he considers the years he
lost. "The anger has built up. I've learned to deal with
it several different ways. Eventually I imagine it will go away,
but not for a long time because there's still lots that has to
be done."
Outside lawyers hired by the
province's prosecutions division told the court this week that
the new evidence didn't exonerate Mr. Driskell. They are fighting
his request for a new trial, currently being considered by the
federal Justice Department. Mr. Driskell's lawyers say this leaves
them with many hurdles yet to overcome.
"I just don't know what
we have to do to convince them," said James Lockyer, a founding
director of the Association in Defence of the Wrongly Convicted,
who acted on Mr. Driskell's behalf.
"It's incredible to me
that we are still at a stage where yesterday they [Manitoba's
prosecutors] were opposing bail and today they continue to oppose
our application to the Justice Minister in Ottawa," he said.
"I appeal directly to Manitoba Justice to finally take off
the blinders."
Lawyers Hymie Weinstein and
William Olson, who acted for the Crown, said very little about
the decision.
"The fact is, he's still
convicted," Mr. Weinstein said. "Whether he's innocent
or not, is not up for us to decide or the Justice Department
to decide. It's up to the review by the minister and there could
potentially be a new trial."
None of the legalities appeared
to matter much to Mr. Driskell's family, however. They hugged
and passed around Kleenex to dry their eyes as the judge read
his decision in court.
"We're all happy that
he's out and we can spend some more time with him," said
his mother Florence, 72. "Sunday dinner and all, he was
never there for 14 years."
She added: "He's still
my baby."
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
Driskell waiting to see if he'll
get bail
Globe and Mail with Canadian
Press, Nov. 27, 2003
A man who has spent more than
a decade behind bars following a conviction for a murder he says
he didn't commit is waiting to see if he will be granted bail
because of new evidence that may exonerate him.
James Driskell was in a Winnipeg
courtroom Thursday, where for a judge was to decide whether he
can go free while officials look at new documents.
Mr. Driskell was convicted
in 1991 for the fatal shooting of his friend Perry Harder
The federal Justice Department
is already reviewing the case, in part because DNA tests conducted
last year on crucial hair evidence raised doubts about Mr. Driskell's
guilt.
As well, Mr. Driskell's original
lawyer says he was never given important information about the
case, including the fact that police had doubts about a key Crown
witness.
In a Winnipeg courtroom Thursday,
Mr. Driskell's lawyer said he deserves to be granted bail because
the new evidence is so overwhelming it would be wrong to keep
him behind bars.
"We're dealing with a
recantation. We're dealing with new scientific evidence,"
James Lockyer told a packed Queen's Bench courtroom while Mr.
Driskell sat quietly nearby in the prisoner's dock, dressed in
a blue suit.
"The applicant has come
forward with an abundance of evidence...that was certainly not
considered by the courts," Mr. Lockyer told Justice John
Scurfield.
"If Mr. Driskell's trial
were held today, it would simply implode. To keep Mr. Driskell
in custody would be a perpetuation of a miscarriage of justice."
Mr. Harder was shot to death
and his body was found in a shallow grave in Winnipeg's north
end.
There were no witnesses to
the crime and Mr. Driskell has always maintained he is innocent.
Crown prosecutors indicated
they would argue that keeping Mr. Driskell behind bars during
the review is in the public interest.
Mr. Driskell was convicted
largely on testimony from Crown witness Ray Zanidean and three
hairs found in Mr. Driskell's van that the Crown said came from
the victim.
But DNA tests conducted last
year revealed the hairs did not belong to Mr. Harder.
In addition to presenting the
new DNA evidence, Mr. Lockyer spent much of the morning on an
internal 1993 Winnipeg police report on the case that was made
public earlier this week. The report showed police were suspicious
of Mr. Zanidean's testimony, that Mr. Zanidean "very likely"
lied when he testified against Mr. Driskell and that he tried
to recant his testimony after Mr. Driskell was convicted.
The report - authored by senior
Winnipeg police officers, including Jack Ewatski, who is now
chief - also states RCMP believed Winnipeg police secured Mr.
Zanidean's testimony by giving him immunity on an arson charge
in Saskatchewan.
The report had been kept under
wraps until a Winnipeg judge ordered it released on Monday, saying
it could be a key in efforts to prove a wrongful conviction.
"The review in itself
provides a reasonable basis to conclude that a miscarriage of
justice likely occurred," Mr. Lockyer said.
On Wednesday, the Manitoba
government ordered an independent review of the way the Crown
handled Driskell case, to determine whether police or prosecutors
withheld key evidence.
Joyce Millguard, whose son
David spend 23 years wrongfully imprisoned for the murder of
a Saskatoon nursing aide was on hand in Winnipeg for the bail
hearing.
She told reporters that an
independent board is needed in Canada to review such cases.
"I'm one that's lost faith
in the justice system," she said.
Boxer Rubin (Hurricane) Carter,
who was also wrongfully convicted of murder and sent to prison,
said these cases have become more common.
"These cases of wrongful
convictions, while we thought were very few, have grown to epidemic
proportions," he said. He said the board must be independent
of the government.
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
- Crown plays down new
Driskell evidence
- Disputed facts wouldn't
have changed murder conviction, bail hearing told
By GRAEME SMITH, Globe
and Mail, Nov. 26, 2003
WINNIPEG - New facts that have
emerged since James Driskell's murder conviction 12 years ago
were challenged for the first time in a courtroom yesterday,
as his lawyers and the Crown argued about whether he should get
bail while his case is re-examined.
They offered two starkly different
viewpoints about the reams of new material that Mr. Driskell's
legal team has unearthed.
The Crown said the new facts
amount to nothing more than suggestions of procedural irregularities
and refutations of minor pieces of evidence, which would not
have changed the outcome of the jury trial that found Mr. Driskell
guilty of murdering Perry Harder in 1991. Mr. Driskell's lawyers
said that any one of the new pieces of evidence is enough to
show that his conviction was likely a miscarriage of justice.
"When you look at them
cumulatively, you have an overwhelming basis for concluding that
a miscarriage of justice occurred," said lawyer James Lockyer.
"To keep Mr. Driskell
in jail would perpetuate a miscarriage of justice that has gone
on too long already."
Federal lawyers are reviewing
his conviction in the shooting death of Mr. Harder, who had been
a friend. The provincial government announced a second review
of the case this week.
The evidence against Mr. Driskell,
45, was always circumstantial, relying on the testimony of underworld
informants and three hairs recovered from Mr. Driskell's van
that an expert analyst for the Crown testified belonged to the
victim.
A secret police report, revealed
this week, shows that police had deep misgivings about the informants
and that they were rewarded for their testimony.
An earlier DNA analysis of
the hairs showed that they belonged to three different people,
none of them the victim.
Spectators crowded into a Queen's
Bench courtroom yesterday to see whether the new evidence would
be enough to get Mr. Driskell out of jail.
Lawyers acting for the Crown
said that it would not serve the public interest to release a
convict whose case is still being reviewed, arguing that Mr.
Driskell's lawyers still have not proved that a miscarriage of
justice was "reasonably likely."
Speaking in court about the
new material in the case, Crown attorney William Olson, said:
"The difficulty for you, my lord, is how material is the
material? . . . Are they sufficiently grave as to raise serious
concerns about the accuracy of the verdict?"
While Mr. Olson argued that
the verdict wouldn't have been affected, Mr. Lockyer listed several
ways that it would have been.
"If Mr. Driskell's trial
were held today, it would essentially implode," Mr. Lockyer
said.
Mr. Justice John Scurfield
questioned both lawyers rigorously. He particularly scrutinized
the Crown's assertion that the new facts don't exonerate Mr.
Driskell, saying that the new evidence merely needs to have been
enough to have affected the outcome of the trial. After hearing
both arguments, Judge Scurfield said he would attempt to deliver
a decision this morning.
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
Inquiry ordered into
Driskell case
By Dan Lett, November 27th,
2003
MANITOBA Attorney General Gord
Mackintosh struck an independent inquiry into the James Driskell
murder case yesterday amid mounting allegations police and prosecutors
failed to disclose evidence that would have cast doubt on the
conviction.
Mackintosh also made a surprise
disclosure, releasing a 1993 memo that shows George Dangerfield,
the Crown attorney who prosecuted Driskell, failed to tell senior
officials in the Manitoba Justice department about evidence that
undermined the credibility of a key Crown witness.
The release of the Dangerfield
memo is just the latest in a string of revelations in the last
week alleging some of the most senior officials in the prosecutions
branch of Manitoba Justice and the Winnipeg Police Service, including
Chief Jack Ewatski, failed to disclose evidence that Driskell's
lawyers now believe would have won him a new trial.
The federal Justice Department
has launched an investigation of the Driskell case under Sec.
696 of the Criminal Code, which allows Ottawa to overturn a conviction
or order a new trial. Mackintosh said the allegations of withholding
evidence required an immediate response.
"I have a growing list
of questions about what took place here," said Mackintosh.
"There are some very unsettling matters regarding the trial,
and some events that happened after.
"So this is a timely effort
to make sure we discover what took place in Manitoba in the prosecution's
branch."
Mackintosh has asked retired
provincial court judge John Enns to preside over the inquiry.
Enns is expected to begin his work within days and could produce
a final report "within a matter of weeks," Mackintosh
said.
Enns' appointment is likely
to raise eyebrows. A former Crown prosecutor, Enns was criticized
by the Aboriginal Justice Inquiry for his work in presiding over
the J.J. Harper coroner's inquest that allowed police to introduce
inadmissible evidence in support of their case.
Evidence
The inquiry will look at whether
police and prosecutors correctly disclosed evidence.
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.
This morning, lawyers from
the Association in Defense of the Wrongly Convicted will try
to persuade Court of Queen's Bench Justice John Scurfield to
release Driskell on bail while the federal government investigates
his claims of innocence.
Despite Mackintosh's announcement,
an independent prosecutor representing the attorney general confirmed
yesterday he will fight the bail application.
Through a spokesman, Ewatski
declined to comment yesterday on Mackintosh's announcement of
a review.
In the last week, Driskell's
case for bail has been strengthened by the disclosure of several
new pieces of evidence that cast doubt on his conviction.
These include a 175-page review
of the homicide investigation written by Ewatski, which he fought
for more than 10 years to keep out of public view. Court of Queen's
Bench Associate Chief Justice Jeffrey Oliphant ordered the report
released on Monday, noting it was "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."
Ewatski told reporters Tuesday
he had provided Manitoba Justice with "all available evidence"
in the case. Those comments drew an immediate response from deputy
attorney general Bruce McFarlane, who issued a statement late
in the day that there are a number of new facts dug up by Ewatski's
report that have never been provided to prosecutors.
Only days earlier, Driskell's
lawyers had been provided with correspondence showing Saskatchewan
Justice told Manitoba prosecutors about new evidence that undermined
the credibility of a key Crown witness, Ray Zanidean.
The Saskatchewan materials
allege Winnipeg police struck a secret deal with Zanidean, offering
him immunity for an arson charge in Swift Current in exchange
for his testimony, without authority from Saskatchewan. Additional
concerns were raised that the arson investigation showed Zanidean
committed perjury when he testified against Driskell.
Witness credibility
This new evidence, which undermined
the credibility of the witness, was given to senior Manitoba
Justice officials in January 1992, five months after Driskell's
conviction and 10 months before his appeal. Those in possession
of the evidence included Dangerfield, then-director of prosecutions
Bruce Miller -- who is now a provincial court judge -- and Stu
Whitley, a federal attorney who was Manitoba's assistant deputy
minister of justice.
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 Dangerfield memo released
yesterday adds another dimension to growing concerns that evidence
casting doubt on Driskell's conviction was withheld from public
view.
On March 15, 1993, then-justice
minister Jim McCrae ordered a review into the Driskell case to
answer questions raised by a series of media reports. The next
day, Dangerfield prepared a four-page "short commentary"
of the trial, dismissing the concerns raised in the media reports.
In the memo, addressed to deputy
justice minister Ron Perozzo, Dangerfield says no evidence was
kept from Driskell or his lawyers, and that "every care
was taken to see that Driskell was given the fairest trial possible."
Dangerfield does not, however,
reference evidence from Saskatchewan about the unauthorized immunity
deal, or the belief that Zanidean committed perjury which, according
to a departmental memorandum, he was made aware of eight months
earlier.
Despite repeated efforts to
contact Dangerfield to explain his actions, he has not responded
to interview requests.
- Wrongful conviction
inquiry ordered
- Manitoba murder case:
Police chief blames prosecutors for withheld evidence
Michael Higgins, National
Post, November 27, 2003
WINNIPEG - Manitoba's Attorney
General has ordered an inquiry after the Winnipeg police chief
accused Crown prosecutors of withholding vital evidence from
lawyers defending a man alleged to have been wrongly convicted
of murder.
"We need to have an independent
set of eyes review this matter to permit the department to move
forward in a sure-footed manner," Gord Mackintosh said yesterday.
On Tuesday, Chief Jack Ewatski
said the contents of a 1993 police report into the case of accused
murderer James Driskell were known to Crown prosecutors. The
report revealed an immunity deal was made with one of the key
witnesses.
However, the report was kept
secret from the public and Driskell's defence team for 10 years
until being revealed this week.
Bruce McFarlane, Manitoba's
deputy attorney general, later disputed the chief's claim. He
said it was "inconsistent with the information in the Crown's
file."
Yesterday, Mr. Mackintosh announced
that John Enns, a retired provincial court judge, would conduct
an independent review of the matter.
"Recent developments have
raised concerns over the handling of disclosure documents relating
to the Driskell matter," Mr. Mackintosh said in a statement.
"These developments can impact public confidence in the
justice system and need to be examined by an independent reviewer."
The review will examine the
issue of disclosure as well as compare the police review with
the prosecution's files.
This week, Mr. Justice Jeffrey
Oliphant ordered the release of the report saying it was key
to helping Driskell's bid for bail today and, "in assisting
in demonstrating his conviction for first-degree murder may have
been a miscarriage of justice."
Lawyers claim Driskell's trial
12 years ago was unfair and evidence was suppressed.
The case has reignited a debate
that Canada needs an independent review of cases of possible
wrongful conviction.
The fate of innocent people
behind bars too often rested in the hands of under-resourced
and under-staffed defence lawyers battling against a rigid justice
system, lawyers said yesterday.
"I think there is clearly
a better way," said Louis Sokolov, a Toronto lawyer and
a board member of the Association in Defence of the Wrongly Convicted
(AIDWYC.)
"Independence is the key.
Without independence members of the public cannot have confidence
in the justice system."
Mr. Sokolov, a lawyer for AIDWYC
in the case of Thomas Sophonow who was wrongfully convicted of
strangling Barbara Stoppel, 16, said, "What we tend to see
is tunnel vision by police and prosecution authorities.
"By its very nature, tunnel
vision excludes factors that do not comply with the police and
prosecution theories.
"You also have reputations
of individuals wrapped up in defending the status quo. Nobody
wants to admit that they were party to a wrongful conviction."
Dianne Martin, director of
the Innocence Project at York University's Osgoode Law School
in Toronto, said police refusal to admit they were wrong was
called "belief perseverance" by psychologists.
"Once they have reached
a conclusion they stick to it and ignore or rationalize evidence
pushed their way," she said.
Some officers were guilty of
"noble cause corruption," said Sean Dewart, a lawyer
who represented Gary Staples, the Ontario man freed after being
wrongly convicted of murdering a taxi driver.
"Police become frustrated
when they are trying to solve a difficult crime and in that frustration
they land on the wrong person and become convinced that it is
the right person and suppress the inconsistent evidence in order
to put that person in jail.
"There's a system in place
and they usurp the role of the jury and the courts and the Crown
by trying to get the result they want. And that's corruption
but not borne of a desire to put innocent people away. They have
persuaded themselves that they have the right person."
Mr. Sokolov said what was needed
was something similar to the U.K. where there was an independent
Criminal Cases Review Commission that investigated miscarriages
of justice.
"You do not have the same
people investigating. You have independent people whose reputations
are not wrapped up in the matter," he said.
Following commissions of inquiry
into the cases of Mr. Sophonow, Donald Marshall and Guy-Paul
Morin, Ottawa responded with a new conviction review unit which
has been criticized as having few powers and little in the way
of resources.
In the case of Driskell, it
was defence lawyers who again uncovered evidence that cast doubt
on his conviction.
Police claim Driskell killed
a friend, Perry Dean Harder, in order to stop him testifying
against him on a charge of receiving stolen goods. Driskell has
always maintained his innocence.
But since the conviction it
has emerged that police paid two key witnesses $80,000 in "compensation"
to give evidence and that one of the witnesses, Ray Zanidean,
was granted immunity from an arson charge.
The 1993 report claimed Mr.
Zanidean "likely lied" in his evidence. He later tried
to recant his testimony.
A central plank of the prosecution
case -- and the only forensic evidence -- has also been discredited.
At the trial it was claimed
that three hairs found in Driskell's van belonged to the victim
and supported the prosecution case that the vehicle was used
to dispose of the body.
New DNA tests have shown that
the hairs did not belong to the victim but to three other people.
mhiggins@nationalpost.com © Copyright
2003 National Post
Ex-judge wrong for review
Gordon Sinclair Jr., Winnipeg
Free Press, November 27th, 2003
ATTORNEY General Gord Mackintosh
said yesterday the matters surrounding the Crown's handling of
the James Driskell murder case "cry out" for an "independent
review."
So what, for crying out loud,
was he doing appointing retired Manitoba provincial judge John
Enns?
Either Mackintosh is stupid,
or he thinks we are, or both.
Actually, I happen to think
Mackintosh is a rather clever guy.
Smart enough to quickly act
on a legal sewage spill that is looking more and more like yet
another wrongful conviction.
Specifically, Mackintosh wants
an assessment of how his department handled the disclosure 10
years ago of important information that should have been passed
on to the lawyer for convicted murderer James Driskell.
But wasn't.
The documented information
concerned alleged perjury by a key Crown witness that the Saskatchewan
government was urging Manitoba Justice to disclose to defence
counsel.
That information might well
have resulted in a new trial because, right around that time
in 1992, Driskell's lawyer, Greg Brodsky, was preparing to appeal
the 1991 murder conviction.
The uncharacteristically stupid
part of what Mackintosh did yesterday, though, was in appointing
Enns to do the independent review.
Enns is the judge best known
for his pro-police witness mishandling of the J.J. Harper inquest,
or so the Aboriginal Justice Inquiry suggested.
That piece of history aside,
Enns may be a decent, well-meaning man, but he can hardly be
called "independent."
At least not with a straight
face.
Enns is a former prosecutor
himself. He was around in the bad-old, good-old days when some
Crowns and cops got a little too cosy for legal comfort working
together out of the Public Safety Building.
That was an era when most people
in the Crown-cop culture looked up to a pair of notorious detectives
who preferred fists to facts.
The problem is Enns is being
tasked with reviewing people and a culture he knows only too
well, which in this case, isn't necessarily a plus.
People like "Gorgeous"
George Dangerfield, the tall, white-goateed former senior Crown
attorney, who in March 1993 -- six months before the Winnipeg
Police Service review led by then-inspector, now police Chief
Jack Ewatski -- did the first so-called Crown review of the Driskell
case.
That meant Dangerfield reported
on what Dangerfield did as the prosecutor.
Enns might well do a fine job.
But, as Mackintosh said yesterday
in reference to the concerns raised by the decade-old document
disclosure issue, "these developments can impact public
confidence in the justice system... "
Which is why Manitoba Justice
should have asked a retired judge from another province to conduct
the review into the past doings of Manitoba Justice officials.
gordon.sinclair@freepress.mb.ca
Important dates detail
events in Driskell case
November 27th, 2003
June 1991:
James Patrick Driskell is convicted
of first-degree murder in the death of Perry Dean Harder. He
is sentenced to life in prison with no hope of parole for 25
years.
January 1992:
Saskatchewan Justice writes
to Bruce Miller, head of Manitoba Justice prosecutions branch,
alerting him that Winnipeg Police promised a key crown witness,
Ray Zanidean, immunity for a Swift Current arson without authorization
from Saskatchewan Justice. Further, Saskatchewan officials indicate
they are convinced Zanidean committed perjury while testifying
against Driskell, and urge Miller to disclose the evidence to
Driskell's lawyers at the earliest opportunity.
Saskatchewan brings to Miller's
attention a recent decision in the Supreme Court of Canada, R.
vs. Stinchcombe, which obligates police and prosecutors to disclose
all evidence to defence counsel.
March 9, 1992:
Saskatchewan contacts Miller
again, this time providing a copy of an RCMP investigation into
the Swift Current arson, showing how Zanidean committed perjury
about details of his arson case when he testified against Driskell.
Again, Saskatchewan asks Miller to disclose these materials to
Driskell's lawyers.
July 1992:
Miller sends the Saskatchewan
materials to Crown Attorney George Dangerfield, who prosecuted
Driskell and who argued against his appeal. Miller tells Dangerfield
he is leaving the material in Dangerfield's hands "for whatever
action you deem appropriate." He does not ask Dangerfield
to disclose the materials.
December 1992:
Manitoba Court of Appeal denies
Driskell's appeal for a new trial. The court hears no mention
of the Saskatchewan materials disclosed to Miller and Dangerfield
10 months earlier.
March 11, 1993:
Miller writes to Dangerfield
again, asking if "that information was disclosed to Mr.
Driskell? If not, should we do so at this time?" Dangerfield
returns the memo with a handwritten note indicating that he does
not recall the material, and that he hesitates to agree to turn
anything over to Driskell's lawyers without first looking at
it.
March 15, 1993:
Justice Minister Jim McCrae
announces he has called for a review of the Driskell case because
of media reports questioning the conviction. The next day, Dangerfield
prepares a memo on the Driskell case and the media reports. In
the four-page note, addressed to the Deputy Attorney General
Ron Perozzo, Dangerfield dismisses criticism of the prosecution,
and repeats the evidence presented at trial. Dangerfield does
not include any of the new evidence from Saskatchewan in his
note to Perozzo.
April 13, 1993:
Miller writes to Assistant
Deputy Minister Stu Whitley about the Saskatchewan materials,
indicating that on several previous occasions the two men had
discussed the issue of disclosure to Driskell's lawyers. Miller
stated in the memo that in his opinion, "it would be inappropriate
for us to withhold the information. From what I gather it was
due to an oversight that Mr. Dangerfield did not address this
issue when it was first brought to his attention last July."
Miller goes on to say that
Dangerfield has been asked to draft a letter to Driskell's lawyers,
explaining the delay.
(Greg Brodsky, counsel for
Driskell has sworn an affidavit indicating he never received
that letter from Dangerfield and never received the materials
from Saskatchewan.)
dan.lett@freepress.mb.ca
- Trio in the spotlight
again
- Prosecutors singled
out for withholding evidence in Sophonow trial
By Leah Janzen, November
27th, 2003
A provincial review into allegations
the Crown attorneys' office mishandled the James Driskell murder
case will focus on a trio of prosecutors singled out for withholding
evidence in the wrongful conviction of Thomas Sophonow.
George Dangerfield, Gregg Lawlor
and Stu Whitley were Crown attorneys who were involved in the
prosecution of Driskell in 1991 for the first-degree murder of
Perry Dean Harder.
Documents filed in support
of Driskell bail application show that all three were aware of
new evidence significantly undermining the credibility of a star
witness, but never disclosed that evidence to Driskell's lawyer.
Bruce Miller, a provincial
court judge who was director of prosecutions for Manitoba Justice
in 1992, also received a copy of the evidence, but did not provide
the information to Driskell's defence.
Justice Minister Gord Mackintosh
ordered a provincial review yesterday into how the Crown attorneys'
office handled Driskell's murder case.
The review of the Crowns' role
in Driskell's conviction marks the second time Dangerfield, Lawlor
and Whitley have been investigated for withholding evidence in
a murder trial.
In a 2001 inquiry into Sophonow's
wrongful murder conviction, former Supreme Court Justice Peter
Cory found numerous instances where Crown attorneys failed to
provide evidence about the questionable credibility of prosecution
witnesses to Sophonow's defence lawyer.
"Crown counsel agreed
(the information) should have been disclosed to the defence.
It was not. This was a serious error on the part of the Crown,"
Cory wrote in his report. "The error contributed significantly
to the wrongful conviction of (Sophonow)."
The day the Sophonow report
was released in September 2001, Mackintosh requested Cory review
the Crown's role in the conviction with an eye to laying criminal
charges or professional sanctions against the three men.
Cory determined no further
action should be taken against the prosecutors.
University of Manitoba law
professor Lee Stuesser said during Sophonow's trials in the '80s,
complete disclosure of evidence was expected, but not required
by the Crown under the law.
A Supreme Court of Canada decision
in 1991 -- called Stinchcombe -- made Crown disclosure of evidence
a requirement. Stinchcombe was in effect when Driskell appealed
his conviction in 1992.
"Before Stinchcombe, people
assumed the Crowns were doing their jobs, but there was no clear
guidelines," said Stuesser. "Not all Crowns had the
same opinion about what was relevant evidence."
As a result of the Stinchcombe
decision, Stuesser said, prosecutors who do not disclose all
the evidence they have to the defence can be subject to professional
sanctions or even criminal charges of obstructing justice.
Mackintosh said he's particularly
disturbed by the fact that suggestions the Crown did not share
important information with Driskell's counsel took place after
Stinchcombe was in place.
University of Winnipeg criminology
professor Doug Skoog said the mentality of the prosecutions branch
at the time of Driskell's conviction may have influenced Crown
attorneys and justice officials.
"It was a win-at-all-costs
mentality," he said. "One's chances for promotion depend
not so much on being fair and just as being successful in convicting
cases."
Skoog said the fact Miller
did not ensure the evidence was provided to Driskell's lawyer
is an indication of "weak leadership" on the part of
senior justice officials at the time.
leah.janzen@freepress.mb.ca
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