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Arnold
Kyle Unger
Kyle Unger has proclaimed
his innocence since the slaying of Manitoba teen in 1990
By RICHARD BLACKWELL, Globe
and Mail, November 5, 2005 Page A16
A man convicted of a brutal
1990 murder of a teenage girl in Manitoba has been granted bail
while the federal Justice Minister reviews his case.
Kyle Unger, who has been in
jail for more than 13 years, will be released under a ruling
delivered yesterday by Madam Justice Holly Beard of the Manitoba
Court of Queen's Bench.
"There are very serious
concerns that [he] may have been wrongfully convicted and . .
. there is no reason to refuse to release Mr. Unger," Judge
Beard said in her ruling.
Mr. Unger and another man,
Timothy Houlahan, were convicted of the murder of 16-year-old
Brigitte Grenier at a rock music festival at a ski resort near
Roseisle, southwest of Winnipeg, in June, 1990. Her body was
found in a creek, brutally beaten, raped and strangled.
Mr. Houlahan's conviction was
overturned after an appeal, but he committed suicide before he
could be retried.
Mr. Unger, who was 19 at the
time of the slaying, has consistently proclaimed his innocence.
Now Judge Beard has said he should be released pending the federal
review because "there is . . . strong evidence that [Mr.
Unger's] conviction may not be sustainable."
James Lockyer, the lawyer who
argued for Mr. Unger's release, said yesterday that the ruling
"is a very encouraging judgment." The conviction, he
said, "is potentially a classic case of wrongful conviction
for a horrid, brutal crime [where there was] a rush to judgment."
One of the main pieces of evidence
tying Mr. Unger to the slaying of Ms. Grenier was a hair found
on her body. A process known as hair microscopy suggested it
was Mr. Unger's hair, but a DNA analysis conducted last year
showed that was a mistake.
The Crown also used testimony
from a jailhouse informant, but that has now been discredited.
Third, Mr. Unger made a confession
to undercover police officers who were posing as drug dealers
in a sting operation set up to get him to talk. At his trial,
however, Mr. Unger said that he lied about the killing to impress
the men, because he thought if he looked tough they would give
him a job.
Judge Beard noted in her ruling
that some of the details of the killing that Mr. Unger gave to
the undercover officers were wrong, and this raised questions
about the validity of what he said.
With the other two pieces of
evidence now removed, "all that is left is the confession
to the police . . .," the judge said, and that is "fraught
with serious weaknesses."
Mr. Lockyer said his client
will probably be released some time next week, after Judge Beard
talks to the lawyers about terms and conditions for his bail.
When he is released from a
British Columbia prison, Mr. Unger wants to live with his parents
in Merritt, B.C.
A report on Mr. Unger's case
by the Justice Department's criminal conviction review group
is not expected to be ready until the end of the year. As a result,
Justice Minister Irwin Cotler won't likely make a decision on
what to do with the case until some time in 2006.
Hair-testing not needed
in 492 cases, panel finds
By MICHELLE MACAFEE, Canadian
Press, September 21, 2005
WINNIPEG -- A Manitoba committee
looking for possible miscarriages of justice based on key hair
evidence in robbery or sexual assault cases has come up empty-handed.
The government-appointed forensic
evidence review committee looked at 492 convictions recorded
in the past 15 years in the province. But it determined in a
report released yesterday that none warranted retesting hair
samples using DNA science to see whether mistakes were made.
Chairman Rick Saull said the
committee couldn't find any cases that met three criteria for
further review: that the Crown relied on hair comparison evidence,
that the accused claimed innocence and that the case was taken
to the Court of Appeal.
"The idea of going out
and testing the hairs in any event would have been in effect
an empty performance," Mr. Saull said during a news conference.
"It wouldn't have taken
us anywhere."
The results of the review came
as a surprise and a relief to a prominent Winnipeg defence lawyer.
But Jay Prober cautioned the committee may have too quickly dismissed
some cases.
"It's hard to generalize
over 400-and-some cases to say it [hair evidence] wouldn't have
mattered, it was an academic exercise," Mr. Prober said.
Yesterday's report marks the
end of a two-part review begun in April of 2003. Last September,
the government announced it had uncovered two more cases in which
faulty microscopic hair analysis was the basis for a murder conviction,
bringing the total in the province in recent years to four.
It recommended the federal
government review the conviction of Kyle Unger, who is serving
a life sentence for the 1990 slaying of teenager Brigitte Grenier.
And provincial justice officials
have not yet made any recommendations in the case of Robert Sanderson,
who was convicted of participating in a triple murder in Winnipeg
in 1996.
Hair comparison evidence was
ultimately rejected in the high-profile case of James Driskell,
who spent 13 years in jail for murdering his friend, Perry Dean
Harder.
Federal Justice Minister Irwin
Cotler quashed the conviction last March after determining Mr.
Driskell was wrongly convicted. A provincial inquiry into the
conviction is expected to start as early as this fall.
The process is the first of
its kind in Canada, maybe even North America, an assertion backed
by the Association in Defence of the Wrongly Convicted, which
sat on the committee.
Unger seeks bail during
murder conviction review
Canadian Press, October
17, 2005
WINNIPEG - A Manitoba man serving
a life sentence for murder should be released on bail because
new DNA evidence and an unreliable key witness have eroded the
Crown's case, defence lawyer James Lockyer argued Wednesday.
Lockyer said faulty hair evidence
that linked Kyle Unger to the murder of 16-year-old Brigitte
Grenier had a major influence on the judge and jury who heard
the case in 1992.
"This undermines a substantial
pillar in the Crown's case against Mr. Unger,'' Lockyer told
Justice Holly Beard.
"There isn't one scintilla
of forensic evidence to link him to the crime. You are left with
strong circumstantial evidence that he did not commit the crime.''
Lockyer also took issue at
the day-long bail hearing with testimony from a jailhouse informant
as well as an undercover RCMP sting operation that garnered a
confession that both Unger and Lockyer now say is false.
Unger has spent 13 years in
jail for first-degree murder.
Grenier was sexually assaulted
and beaten at a music festival in Roseisle, Man., in June 1990.
Unger has always maintained
his innocence. Another man convicted of the crime, Timothy Houlahan,
committed suicide in 1994.
Unger's arguments were bolstered
last year by a Manitoba government committee's review that found
hair evidence used to link him to the crime was misidentified.
The review prompted the deputy attorney general to recommend
the case be brought to federal Justice Minister Irwin Cotler.
Lockyer said department officials
have indicated a decision is not expected soon because Cotler
has called in an expert in false confessions to offer input.
His options are to do nothing,
send the case back to the Court of Appeal or quash the conviction
and leave it to the province to order a new trial.
Lockyer said he has been told
the minister is prepared to take some action on the file.
Crown prosecutor Brian Bell
opposed bail for Unger.
He acknowledged the jailhouse
informant would not be considered reliable according to today's
standards. But he argued Unger could have been convicted without
the testimony and the trial judge cautioned the jury that he
could be lying.
Bell added the potential inaccuracies
with the hair comparison evidence presented at the trial were
spelled out for the jury by the police witness.
"We say the strength of
the case as it is now should not raise serious concerns about
the reliability of Mr. Unger's conviction,'' said Bell.
"The issues raised were
all put before the jury in 1992.''
The Manitoba government's review
of murder cases that relied on faulty microscopic hair analysis
was triggered in part by revelations that the science was used
to convict another Manitoba man, James Driskell.
Earlier this year, Cotler quashed
Driskell's murder conviction for killing his friend Perry Dean
Harder in 1990. Manitoba Justice opted not to proceed with a
new trial.
The government's review also
raised questions about the hair evidence used to convict Robert
Stewart Sanderson of participating in a 1996 triple homicide
in Winnipeg, but department officials have not yet decided whether
to recommend that case for a federal review.
Unger, who is serving his sentence
at the Mountain Institution in Aggasiz, B.C., looked relaxed
in court, where his parents and several aunts and uncles travelled
from Alberta and British Columbia to support him.
Two uncles testified they are
prepared to offer significant cash or property as bail and will
help him develop his "gift'' as a wood carver.
"I certainly have a lot
of confidence in Kyle,'' said his uncle Stan Unger, a real estate
developer who divides his time between Calgary and Kamloops,
B.C.
"I love him, I care for
him and I'm prepared to do whatever I can do to help him in the
future.''
On the other side of the courtroom
were several members of the Grenier family, who refused to comment
on the bail hearing.
Beard reserved her decision.
Unger opts to stay in jail
CBC Manitoba, Jan 13, 2005
WINNIPEG - Convicted killer Kyle Unger had a
bail hearing scheduled for next week, but CBC News has learned
the hearing will be adjourned on Thursday.
Unger has served 13 years of
a life sentence for killing Brigitte Grenier at an outdoor rock
centre in Roseisle in 1990.
In September 2004, Manitoba's
forensic evidence review committee concluded the single hair
used at trial to establish Unger was at the scene of the murder
didn't come from him. The provincial justice department urged
Unger to ask the federal justice minister to review his conviction.
Unger's lawyers expected he'd
be released at next week's bail hearing. But now, Unger's lawyer,
Hersh Wolch, says his client has decided to stay behind bars.
"Kyle has instructed us
to hold off on the bail," says Wolch. "He has been
led to believe rightly or wrongly that if he gets
bail, it will delay the process because there isn't the same
urgency."
Wolch says Unger has been paying
close attention to the similar case of another Manitoban convicted
of murder, James Driskell. Driskell was released on bail over
a year ago after DNA tests also showed the hair evidence used
at his trial was wrong.
To date, Ottawa has not made
a decision on how to handle Driskell's case.
"He's been surprised by
the delay to date and he doesn't want to be in the same position
if he can afford it," says Wolch.
"It's unfortunate but
it's probably got some merit to it. The department of justice
in Ottawa is limited resource-wise, and they have to give priority
to certain cases, and I would suppose that someone in custody
would get precedence over somebody out of custody."
Wolch says Unger is free to
reapply for bail at any time.
Province may oppose bail for murder-conviction
appeal
CP, December 2nd, 2004
A battle appears to be brewing
over whether a Manitoba man will be granted bail while he seeks
to overturn his murder conviction.
Manitoba Justice officials
indicated at a press conference in September that they would
not oppose Kyle Wayne Unger's bid for bail. But Unger's lawyer
said yesterday the province has now changed its tune.
"Lately, we've been told
that they're taking a different position and opposing bail,"
Hersh Wolch said in an interview from Calgary.
"I don't know what the
reasons are."
Wolch said he has not received
anything in writing from the province, but has been told to expect
opposition to Unger's bail application.
Unger has been in prison for
14 years, serving a life sentence for the 1990 killing of teenager
Brigitte Grenier.
The Crown presented a number
of pieces of evidence at Unger's trial, including a hair on the
victim's clothing that was identified by an RCMP forensic technician
as belonging to Unger.
But recent DNA tests determined
the hair sample belonged to someone else.
A hearing is scheduled for
today, to set a date for Unger's bail hearing.
© 2004 Winnipeg Free
Press. All Rights Reserved.
DNA testing puts verdicts in
jeopardy
By Dan Lett, September 15th,
2004
HAIRS used by Manitoba prosecutors
to secure convictions in two notorious murder cases have been
rejected by DNA tests, the Free Press has learned.
This is the fourth time since
2001 that hair evidence used in Manitoba has been excluded by
DNA tests performed years after convictions.
The latest results raise questions
about the convictions of Kyle Wayne Unger, now serving a life
sentence for the 1990 slaying of teenager Brigitte Grenier near
Roseisle and Robert Stewart Sanderson, convicted of participating
in a 1996 triple homicide in West Kildonan.
The DNA testing is part of
an initiative by Manitoba Justice to voluntarily review cases
involving hair-comparison evidence. Last year, a committee of
police, prosecutors and defence lawyers was struck to review
all serious criminal cases where hair evidence was used.
Hairs found on Grenier's clothing
were among several key pieces of evidence used to convict Unger
and his co-accused Timothy Houlahan, who was found guilty of
first-degree murder. When a new trial was ordered on appeal,
Houlahan committed suicide after he had been released on bail.
In the Sanderson case, a hair
found on one of three victims was the only evidence introduced
by the Crown to put Sanderson at the scene of a triple homicide.
Manitoba Justice is expected
to advise lawyers for both Unger and Sanderson to file applications
under Sec. 696 of the Criminal Code, which allows the federal
minister of justice to intervene in cases where a miscarriage
of justice may have taken place.
In those applications, sources
confirmed Manitoba will ask Ottawa to refer the DNA results in
each case to a court to determine whether they alone would be
enough to alter the jury's verdict.
The sources also said there
will be renewed investigation in the Grenier murder in an attempt
to find the identity of the person whose hair was found on the
victim's clothing.
Winnipeg defence lawyer Greg
Brodsky has represented the accused in three of the four cases
where DNA tests have rejected hair-comparison evidence, including
Sanderson and James Patrick Driskell, now out on bail pending
a review of his case by the federal justice minister.
Brodsky said the results show
a troubling pattern by the Crown, which used hair evidence to
bolster cases that were otherwise weak and open to doubt.
"That evidence should
never have been used," said Brodsky.
The hair evidence in question
at the time involved the microscopic visual comparison of two
or more hairs. A forensic technician would attempt to match the
hairs by comparing a series of features of each sample, including
colour, texture and thickness.
Lawyers for the Association
in Defence of the Wrongly Convicted, who are representing both
Unger and Driskell, have complained publicly that despite knowing
hair-comparison evidence was imperfect, prosecutors and forensic
hair experts routinely exaggerated the results to sway juries.
dan.lett@freepress.mb.ca
Case files at a glance:
Hair microscopy evidence used
in four high-profile criminal cases has been rejected after more
sophisticated DNA testing was conducted. The cases include:
Accused: James Driskell
The case: Driskell is convicted of killing friend Perry
Dean Harder in 1990 as punishment for implicating him in a chop
shop/auto theft case. The Crown claimed to have found three of
Harder's hairs in a van once owned by Driskell. This evidence
was used to corroborate informant testimony that Driskell planned
to use the van to murder Harder.
The hairs were rejected by
DNA tests in 2001. Subsequently, Manitoba released thousands
of pages of new material from the case file that revealed informants
were paid tens of thousands of dollars, and promised immunity
from prosecution on other charges. None of this evidence had
been disclosed to Driskell's lawyers.
The result: Driskell is free on bail while the
federal justice department investigates his case. Manitoba has
already served notice that it wants the case, and the body of
new evidence, referred for judicial review.
Accused: Robert Starr
The case: Starr is convicted of two counts of first-degree
murder for his role in the 1994 execution-style deaths of a Manitoba
Warriors gang member and a friend. The original convictions were
overturned in 2000 when the Supreme Court of Canada determined
the judge had not properly instructed the jury on reasonable
doubt.
Starr was then convicted of
manslaughter in May 2001. Prior to the appeal of that conviction,
DNA tests were done on a hair, found in Starr's car, which the
Crown claimed on the basis of hair microscopy was from one of
the victims. The results rejected the hair evidence, but the
results were never communicated to Starr's attorney.
The result: Based on the fact the conviction was
changed to manslaughter, the exclusion of the hair evidence did
not have any further impact on Starr's case. He is currently
serving out his sentence in Quebec.
Accused: Kyle Unger
The case: Unger was charged with Timothy Houlahan in the
brutal 1990 slaying of teenager Brigitte Grenier at the site
of a music festival in Roseisle. The Crown presented a number
of pieces of evidence against Unger, including a hair on the
victim's clothing that was identified by an RCMP forensic technician
as belonging to Unger.
The result: The full impact of the rejection of
hair evidence is not yet known. Manitoba is expected to join
the defence in asking the federal justice minister to refer the
DNA results to a Manitoba court to determine their importance.
Accused: Robert Sanderson
The case: Sanderson was one of three men charged and convicted
of beating, stabbing and shooting three men to death in 1996.
A hair found on one of the victims was identified by a police
forensic technician as coming from Sanderson. Blood from the
victims was found on his car, but it could not be proven he was
driving it at the time of the murders. No other forensic evidence
could be produced linking him directly to the crime scene.
The result: As is the case in Unger, the full
impact of the rejection of hair evidence is not yet known. Manitoba
is expected to join the defence in asking the federal justice
minister to refer the DNA results to a Manitoba court to determine
their importance.
© 2004 Winnipeg Free
Press. All Rights Reserved.
Magic key unlocks prison doors
By MICHELE MANDEL, TORONTO
SUN, September 19, 2004
This is the kind of phone call
lawyer James Lockyer lives to make. After years of fighting,
hoping and protesting his innocence, a convicted murderer is
about to learn that freedom may yet be his. On this Toronto morning,
high above University Ave., the tousle-haired champion of the
wrongly convicted is on the phone to a British Columbia penitentiary.
"Kyle," Lockyer tells
the Manitoba inmate who has served 13 years for a murder he insists
he did not commit, "we have the DNA results." He pauses
for dramatic effect.
"It's good news,"
he finally says. "You're excluded."
Last week, Manitoba's deputy
attorney general made it official with Lockyer at his side. New
DNA tests have revealed that hair strands used to convict Kyle
Unger and Robert Sanderson in separate murders didn't belong
to them, throwing their convictions into doubt.
Unger could soon be released
on bail while his case is reviewed by the federal justice minister.
Sanderson, convicted of a triple homicide in 1997, must wait
while Manitoba Justice looks further into his case.
For the wrongly convicted,
DNA has proven to be the magic key to unlock countless prison
cells around the world. "There's no better tool in our forensic
arsenal to exonerate the falsely accused," says Dr. Ron
Fourney, a leading DNA expert and officer in charge of the National
DNA Data Bank.
In the United States, more
than 150 convicts have been cleared through post-conviction DNA
testing spearheaded by the Innocence Project at New York's Cardozo
School of Law and more than three dozen other "innocence
projects" around the country. The exoneration of each is
significant, but most chilling has been the power of DNA to free
14 men slated to die on Death Row. In 2000, the governor of Illinois
was so troubled by the results that he announced a moratorium
on executions.
In Canada, the Association
in Defence of the Wrongly Convicted is a volunteer organization
of lawyers around the nation who work to free the innocent. Lockyer,
one of the founding members, credits DNA with helping him to
clear seven people. On the flip side, he has also been involved
in three cases where DNA results did not establish innocence.
But the names of the freed
are legion: Guy Paul Morin. David Milgaard. James Driskell.
"There's nothing like
it," says Lockyer, trying to explain the exhilaration of
sharing the DNA news with his clients. "It's sheer joy,
I suppose. And the two most dramatic by far were Morin and Milgaard."
Morin, of course, was his first.
He will never forget that night in 1995 spent waiting for Dr.
Ed Blake to call from a Boston lab with the DNA results. Lockyer
was certain the Queensville man had not killed little Christine
Jessop in 1984, yet he still admits to twinges of panic just
before he gets lab results on his clients. "I'm like a cat
on hot bricks."
He needn't have worried. Blake,
a leading forensic analyst from California, had good news. DNA
tests on semen found on Christine's underwear excluded her neighbour
as the donor. Morin was innocent. Within an hour, Lockyer had
50 people celebrating in his home, from Morin himself - who was
out on bail - to his first lawyer, Clayton Ruby, armed with champagne.
"DNA's a godsend,"
Lockyer says. "But the funniest thing is that I don't understand
DNA at all."
He understands this much -
the key is having evidence that can actually be tested. Some
cases have no DNA involved. In others, such as the current bid
by Steven Truscott to prove he is not guilty of the 1959 murder
of a young friend, the exhibits have been destroyed.
Even when they do exist, the
first hurdle, at least in the early days of DNA, was convincing
prosecutors to release the old evidence for testing. Not surprisingly,
authorities were always convinced they had the right man, and
they didn't want any new-fangled science unravelling years of
hard work spent putting him away.
Milgaard, who served 23 years
in prison for a 1969 murder he did not commit, had to wait more
than two years before they would release the exhibits for DNA
testing. "The Milgaard case was dreadful," Lockyer
recalls in his rumpled office overflowing with briefs. "That
wouldn't happen now."
He smiles at the memory of
that winter morning in 1997 when he reached Blake in England
to hear the Milgaard results. The DNA implicated suspect Larry
Fisher. Milgaard was cleared. "I started screaming. I think
I danced a jig."
Lockyer couldn't reach Joyce
Milgaard because she was flying in from New York. Morin, living
in Milton, Ont., at the time, had offered to pick her up at the
airport. And so, ironically, it was Morin who told her that,
like his own nightmare, her son's was finally over.
Some of DNA's most dramatic
successes have been in clearing those convicted based on comparative
hair analysis.
Morin was originally convicted
in 1992 based in part on a hair found in Christine's necklace,
which forensic scientists said "looked" like his. The
same unreliable hair evidence would send James Driskell to prison
for 12 years for a murder he didn't commit.
Driskell had been in a Manitoba
prison since 1991 after scientists testified that three hairs
found in his van belonged to Winnipeg murder victim Perry Dean
Harder. It took Lockyer nine months to convince Manitoba authorities
to release the hairs and pay for cutting-edge mitochondrial DNA
testing in the United Kingdom. In December 2002, Lockyer got
the shocking results. Not only did none of the three hairs match
the victim's DNA, but they were from three different people.
Driskell has been released
while his case is reviewed. But Lockyer wasn't satisfied. Last
year he convinced the Manitoba government to examine all their
murder convictions that relied on hair-comparison evidence. Last
week's announcement on Unger and Sanderson was the result.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
