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Pre-inquiry
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Commission
of Inquiry Into the Wrongful Conviction of David Milgaard:
(Page 11)
Honourable Mr. Justice Edward
P. MacCallum, Commissioner
| Commission website
| Lockyer shows similarities
with Guy Paul Morin investigation |
More
background (also see
links on sidebar) Sask to
give inquiry another $700,000
Former police
chief Joe Penkala Photo credit: Gord Waldner, StarPhoenix
Officers bugged hotel room
Interview subjects unaware equipment installed in room
Betty Ann Adam, The
StarPhoenix, May 31, 2005
Members of a low-profile intelligence-gathering
unit drilled a hole in a hotel room wall and inserted a microphone
as they tried to bug a room where David Milgaard's travelling
companions were being interrogated by a Calgary polygraph expert
in May 1969, the inquiry into Milgaard's wrongful conviction
heard Monday.
Retired Saskatoon police officer
Rusty Chartier was a member of the National Criminal Intelligence
Unit, which provided technical support to investigators looking
into the January 1969 rape and murder of nursing assistant Gail
Miller.
Milgaard spent 23 years in
prison for the murder before being released in 1992, after the
case was reviewed by the Supreme Court of Canada. DNA evidence
was used to clear him in 1997 and to help convict serial rapist
Larry Fisher in 1999.
The commission of inquiry,
headed by Edmonton Justice Edward MacCallum, is looking into
the murder investigation, the wrongful conviction and whether
the case should have been reopened based on new information police
later received.
Art Roberts, a Calgary polygraph
expert, and the other police officers knew Chartier and his intelligence
unit partner, Robert Morrison, were installing the equipment,
but the interview subjects were not aware, Chartier said.
The recording equipment didn't
work properly and resulted in a poor quality tape of the interrogations
of Nichol John and Ron Wilson, Chartier said.
The tape has never been found.
It was during those interviews
that Roberts reported obtaining the first verbal statements from
the teens implicating Milgaard in the crime he didn't commit.
Both teens later signed written
statements in the presence of Saskatoon police.
Chartier said he does not recall
hearing John or Wilson make the incriminating statements that
were attributed to them. He said he may have left the hotel room
for part of the time the teens were being questioned.
He said he and Morrison may
have gone for coffee at some point since they were not investigators
on the case, but rather were simply installing the recording
equipment for Det.-Sgt. Raymond Mackie, who was in charge of
the case.
Also present were Det. Ed Karst,
Lieut. Charles Short, who was Mackie's superior, and Short's
boss, superintendent of criminal investigations Jack Wood, who
was the most senior officer after the deputy chief of police.
Chartier recalls seeing Roberts
in the hotel hallway after the interrogation was finished and
asking him if he had done the polygraphs.
"I didn't have to, they
were telling the truth," Chartier recalled Roberts responding.
Roberts told the Supreme Court
of Canada in 1992 that John first said she couldn't remember
what happened, but after he showed her Miller's blood-stained
uniform, John exclaimed that suddenly she could remember seeing
Milgaard fighting with a woman down the lane and stabbing her.
John signed a statement saying
she saw Milgaard stab a woman but refused to repeat the statement
at trial.
She has since insisted she
doesn't remember details of what happened the morning of Miller's
murder.
Wilson testified at Milgaard's
1969 trial that Milgaard confessed to him a few days later and
that John told him she already knew about it.
Wilson recanted in 1992, saying
police manipulated him by asking suggestive questions and indicating
that he might be blamed for the murder if Milgaard was not.
Earlier in the inquiry, Wilson
said Roberts was the most intimidating of the police he dealt
with.
© The StarPhoenix (Saskatoon) 2005
Police asked about 'tunnel
vision' at inquiry
CBC, Jun 1, 2005
SASKATOON - The lawyer for the Milgaard family
had some harsh criticism yesterday for the way the Saskatoon
police conducted their investigation into Gail Miller's 1969
rape and murder.
David Milgaard spent 23 years in prison after being wrongfully
convicted of the crimes. The inquiry into his wrongful conviction
is looking at the role police played in what happened.
On Tuesday, Milgaard family
lawyer James Lockyer questioned former Saskatoon police officer
Rusty Chartier about why the police did not share relevant information
that may have helped to clear Milgaard.
Chartier, one of about 100
police involved in the murder investigation, spoke of a "stovepipe"
attitude that meant sections of the police department didn't
share information with other sections.
And he said there was no one
in charge of reading all the reports to see if there were some
common threads.
Lockyer asked Chartier about
a letter he wrote to a newspaper in the early '90s after the
Supreme Court freed Milgaard and ordered a new trial.
Lockyer said Chartier accused
the media of "the worst kind of tunnel vision." Chartier
replied his feelings haven't changed.
"As we now look back on
it, it really demonstrates the most extraordinary tunnel vision
on the part of the Saskatoon Police Service, don't you think?"
Lockyer asked Chartier.
"I don't think so,"
Chartier said.
Lockyer asked Chartier why
he continued to believe in Milgaard's guilt even after the Supreme
Court ordered a new trial.
He said it was because the
DNA evidence hadn't cleared him at that point.
Chartier also said he couldn't
recall if he knew the name of Larry Fisher when he was working
on the Milgaard case.
Fisher was convicted of Miller's
murder in 1999.
Milgaard's mom close to
finding Fisher in '83
Betty Ann Adam, The
StarPhoenix, June 01, 2005
David Milgaard's mother was
surprised Tuesday to realize she had been on the trail of a key
source whose information might have helped free her son from
prison many years before he was released in 1992.
"To think we were so close
in 1983 is upsetting to me," Joyce Milgaard said Tuesday
during a break at the commission of inquiry into the wrongful
conviction of her son, who spent 23 years in prison for a rape
and murder he didn't commit.
Joyce Milgaard was responding
to a long-forgotten letter her former lawyer, Tony Merchant,
had written in May 1983 to a private investigator in which he
sought help in tracking down three people Milgaard wanted to
talk to. The letter was raised by another lawyer during questioning
at the inquiry.
The people Milgaard sought
included Linda Fisher, who, Merchant noted, lived at 334 Ave.
O South in 1969.
"She married Larry Fisher
who is presently in prison on a rape charge," Merchant wrote
in the letter to a Calgary firm.
Joyce Milgaard didn't realize
at the time that Larry Fisher had committed other rapes in the
same neighbourhood and within months of the Miller murder. In
1983, she sought Linda Fisher only because she knew the woman
had once lived in the same Avenue O house as Albert Cadrain,
one of the teenagers who testified against David Milgaard.
Joyce Milgaard never doubted
her son's innocence and worked for years gathering evidence to
have his case reopened. During that time she spoke with hundreds
of people, many of whom had no useful information for her.
"I had no idea of the
significance of her. We were just looking for more information.
I'm absolutely blown away," Milgaard said.
"How many years we could
have taken off David's sentence," she said.
The investigating firm never
did find Linda Fisher for Milgaard.
Seven years later, in 1990,
Milgaard's lawyer Hersh Wolch received an anonymous tip saying
Larry Fisher was the person who had really killed Gail Miller.
That information was an important part of Milgaard's successful
bid to have his case reviewed by the Supreme Court of Canada,
which quashed his conviction in 1993.
In 1983, Milgaard did not know
that Larry Fisher had pleaded guilty in 1970 to three rapes and
one indecent assault in the same neighbourhood where nursing
assistant Gail Miller was raped and murdered on Jan. 31, 1969,
or that the attacks had occurred in the months just before and
after Miller's murder.
Some police investigators originally
-- and correctly -- thought the person who had committed the
then-unsolved rapes in the Pleasant Hill neighbourhood was the
same person who killed Miller, but that theory was abandoned
after Milgaard's teenage friends implicated him in the murder.
Milgaard was convicted in January
1970 and sentenced to life in prison. Months later, Fisher was
caught raping a woman in Winnipeg. He confessed to the Saskatoon
rapes.
In an unusual move, Fisher
was brought to Regina, not Saskatoon, to plead guilty to the
charges. He was sentenced to prison and was released in 1980.
Two months later, he raped
a woman in North Battleford and was sentenced to 10 years in
prison. Months later, his ex-wife Linda told Saskatoon police
she suspected Larry had committed the Miller murder.
Lawyers for the Milgaards say
Saskatoon police never gave them any information about Larry
Fisher. They did not say how Milgaard knew in 1983 that Linda
Fisher had lived in the Cadrain's basement suite.
"We were so frustratingly
close," Wolch said.
"It highlights the lack
of disclosure. Even if police don't want to follow leads, the
defence can. Not knowing about the 1968 rapes in the area was
crucial," Wolch said.
© The StarPhoenix (Saskatoon) 2005
Evidence should have
been saved
ex-police chief
Betty Ann Adam, The
StarPhoenix, June 2, 2005
Retired Saskatoon police chief
Joseph Penkala acknowledged Wednesday he should have ensured
that semen found in murder victim Gail Miller's body was retained
and sent to a crime lab.
"It was the police responsibility.
We obviously didn't do that. I can only assume in discussion
we didn't think there was any benefit," Penkala said, adding
he probably discussed the matter with the pathologist Dr. Harry
Emson, who conducted the autopsy.
Penkala, 73, testified at the
commission of inquiry into the wrongful conviction of David Milgaard,
who was blamed for Miller's January 1969 murder and spent 23
years in prison.
His conviction was quashed
by the Supreme Court of Canada in 1992.
Penkala, who was the lieutenant
in charge of the identification unit during the investigation,
said the fact the fluid was thrown away after the pathologist
confirmed it contained immobile spermatozoa "never came
up again."
Penkala said he doesn't know
if the fluid could have been used in 1969 to help identify Miller's
assailant.
Instead, police depended upon
two frozen lumps of yellow snow Penkala found at the unprotected
crime scene four days later to eliminate suspects and focus on
those with a certain blood type.
He asked the crime lab to determine
if the yellow snow contained semen and if it came from a human
source. The lab said it did.
Penkala would not say Wednesday
that he threw away useful evidence from the autopsy on Miller's
body.
But Penkala acknowledged he
sent samples of semen found on another woman who was raped around
the same time as Miller to the RCMP crime lab for analysis.
Penkala raised the possibility
of a contaminated specimen in the Miller case.
But he said he was more concerned
that the semen found inside Miller's body would be contaminated
by blood from her imminent menstruation than he was about the
possibility the yellow snow he found days later might be compromised
evidence.
Findings from analysis of the
yellow snow were used in the prosecution's case against Milgaard.
In 1997, DNA from semen on
Miller's underwear proved Milgaard was not the assailant and
was used to help convict serial rapist Larry Fisher in 1999.
Penkala acknowledged he and
other Saskatoon police officers originally thought Miller had
been killed by the same person who had raped two other young
women in the area in recent months, but they had no suspects
for the rapes or the murder.
Police abandoned evidence pointing
to similarities in the rape cases after friends of Milgaard's
implicated him in Miller's death.
Milgaard was never accused
of committing the other rapes.
Months after Milgaard was convicted
and sentenced to life in prison, Fisher admitted committing the
other rapes.
Milgaard and his family accuse
the police of deliberately suppressing that information.
The inquiry saw Wednesday that
Penkala wrote a letter to the RCMP national crime index soon
after the murder, in which he listed the similarities between
the modus operandi of the Miller killer and the attacker in rapes
that occurred in October and November 1968.
The rape victims were 18 and
20 years old, all had dark hair and were petite.
They were attacked while walking
alone at night, were threatened with knives, taken into alleys,
forced to remove their clothing and raped. The rapist took some
articles of their clothes and allowed them to put some clothes
back on.
Miller was 20 and had dark
hair. She was attacked about 6:45 a.m. on Jan. 31, when it would
still have been dark outside, and was stabbed repeatedly with
a paring knife.
It appeared Miller had also
been forced to partially undress in the bitterly cold, -40 C
morning. The top of her one-piece uniform dress had been removed
and was bunched around her waist, but her arms were in the sleeves
of her black coat, as if she had been allowed to put it back
on.
The coat had knife holes matching
many of her stab wounds. Her throat also had been slashed.
Penkala returns to the stand
today.
© The StarPhoenix (Saskatoon) 2005
Fisher's ex-wife ignored
Penkala: Police should have investigated claim, former chief
says
Betty Ann Adam, The
StarPhoenix, June 7, 2005
When the ex-wife of serial
rapist Larry Fisher told Saskatoon police in 1980 that she felt
he might have murdered Gail Miller 11 years earlier, the matter
should have been fully investigated, former police chief Joseph
Penkala said Monday.
"If I was aware . . .
I would call for a thorough examination of the allegations made
by Linda Fisher. . . . It would be important to do that,"
Penkala told the commission of inquiry into the wrongful conviction
of David Milgaard, who served 23 years in prison for the murder
Fisher committed.
If the allegation had been
substantiated, the findings would have been sent to the provincial
Justice Department, Penkala said.
The fact Milgaard had already
been convicted of murder in Miller's death would have been an
impediment to police attitudes toward the allegation, he said.
"It can't be denied. It
was a situation that rested in the minds of many investigators.
(If there had been no conviction) I assume it would have got
a different kind of approach," he said.
Penkala said he did not find
out about Linda Fisher's Aug. 28, 1980, statement to a Saskatoon
police inspector until about 10 years later, when Milgaard was
applying to the federal justice minister for a review of his
case.
When Linda Fisher came forward,
Penkala was the superintendent in charge of the patrol division
and sometimes became acting chief when the police chief was away.
As a senior officer he had, for more than 11 years, been involved
in the daily meetings of top Saskatoon police officers, who discussed
day-to-day operations and important matters going on within the
department.
Linda Fisher's statement appears
to have been forwarded directly to Jack Parker, who had been
involved in the Miller murder investigation and who, by 1980,
was the duty inspector for the patrol division.
While the practice would have
been to assign such a matter to the detective division for follow-up,
that was not done in this case, Penkala said.
Linda Fisher had been divorced
for two years from Larry Fisher, who was serving a 10-year sentence
for rape, when she went to the police station and told them the
couple had lived in the basement of the house where Albert Cadrain
lived with his family in 1969.
Cadrain was the 16-year-old
friend of Milgaard who was the first person to implicate Milgaard
in the murder, when he told police Milgaard had blood on his
clothing when he came to the Cadrain house that morning.
Association with the Cadrain
house was an important part of the murder investigation because
the dead nursing assistant's wallet and identification were found
on the boulevard in front of a house two doors down from the
Cadrain's and a tuque with blood on it was also found nearby.
There was no indication police
were aware in 1969 that Fisher lived in the house, nor was he
a suspect in a series of sexual assaults that had occurred in
the neighbourhood in recent months.
Unbeknownst to police in 1969,
Fisher had raped two girls and attempted to rape another in the
months before the murder. Within minutes of killing Miller, someone
using the same approach that Fisher used in rapes also groped
a young woman on the street a few blocks away.
Weeks after Milgaard's January
1970 conviction for killing Miller, Fisher raped another woman
in Saskatoon. He was caught raping a woman in Winnipeg in September
of that year and confessed to the Saskatoon sexual assaults.
Penkala, who was already a
senior officer who attended the daily meetings in 1970, said
Monday he didn't know that one of the Miller investigators, Eddy
Karst, had gone to Winnipeg to interview Fisher about the rapes.
Penkala also denied knowing
at the time that Fisher was brought to Regina in 1971 and pleaded
guilty to rapes that Penkala had once been certain were connected
to the Miller murder.
Prior to Saskatoon police focusing
the investigation on Milgaard, Penkala had written to the RCMP
national crime index with a list of similarities between the
unsolved rapes and the Miller murder. He had also sent biological
samples from the rapes and the Miller murder to the crime lab
to see if links could be established.
That testing had indicated
the rapist could not be eliminated from the murder investigation
but the rape and murder connection was abandoned when police
focused on Milgaard.
Milgaard was released in 1992
after the case was reviewed by the Supreme Court of Canada. DNA
evidence was used to prove his innocence in 1997 and was used
to help convict Fisher in 1999.
The commission, headed by Justice
Edward MacCallum of Edmonton, is looking into Miller's death,
the police investigation that led to the wrongful conviction
and whether the case should have been reopened when new information
came to light. Penkala returns to the stand today.
© The StarPhoenix (Saskatoon) 2005
Link between rapes, murder
rejected:
Penkala
Betty Ann Adam. The
StarPhoenix, June 8, 2005
Former Saskatoon police chief
Joseph Penkala knew of only one serial rapist in his 37 years
with the department, so there would have been good reason to
think the person who raped and murdered Gail Miller using similar
methods as the rapist around the same time and in the same neighbourhood
was the same person, he said.
Under cross-examination by
Joyce Milgaard's lawyer, James Lockyer, Penkala acknowledged
it also would have been reasonable to think the same person was
responsible for an indecent assault on a young woman 20 minutes
after Miller was killed and just a few blocks away.
Considering the strange time
of day for a rape, in the early morning, and the extremely cold
-40 C weather, police might have inferred they were dealing with
the same person, Lockyer suggested.
Penkala agreed. He was testifying
at the commission of inquiry into the wrongful conviction of
David Milgaard, who spent 23 years in prison for the crime committed
by serial rapist Larry Fisher. The current phase of the inquiry
is looking into the police investigation that led to the injustice.
Police must have seen the connection
between the same-day assault and Miller's death because the assault
was included in the Miller investigation file, Lockyer suggested.
Penkala agreed.
Lockyer noted that if police
rejected the theory that Fisher was the murderer, then they must
have been prepared to accept that on the cold morning of Miller's
death, there were two different men committing sexual assaults
on young brunette women within five blocks of each other, Lockyer
said.
Penkala agreed the striking
coincidence could have been relevant, but he insisted that he
wasn't in control of the investigation.
Penkala testified last week
that he and Insp. Charles Short were the ones who in May 1969
convinced their superior, Supt. Jack Wood, to continue pursuing
Milgaard.
At a May 16 meeting the three
officers adopted a theory about Milgaard killing Miller, which
subsequently became the basis of further questioning of Milgaard's
companions from the day of the murder, Penkala said.
That theory ignored the connection
between the rapes and the murder. The rapes were never raised
again during the murder investigation.
But Penkala also insisted there
were reasons for police ignoring evidence from the rapes after
they decided to focus on Milgaard.
"Simply because there
were similarities doesn't mean it was the same person,"
Penkala said.
While it may look like police
"had options" beyond focusing on Milgaard, they also
had evidence against Milgaard "staring at us, glaring at
us," Penkala said.
Police had a statement from
Milgaard's friend, Albert Cadrain, saying Milgaard had blood
on his clothing that morning. Police had also established that
Milgaard and two other teens had been driving around streets
and alleys in the same neighbourhood as the murder.
Penkala also told the inquiry
he was not aware that Fisher struck again, just weeks after Milgaard
was convicted and sentenced to life in prison.
That coincidence escaped Penkala
even though he was the person who wrote the request for crime
lab tests of biological samples in the new rape case.
Penkala also said he didn't
know that one of the investigators he worked with on the Miller
murder investigation, Ed Karst, had obtained a confession from
Fisher 18 months after police abandoned the serial rapist-murder
connection.
Penkala has told the inquiry
that if there had been a conspiracy to conceal the Fisher rape
convictions from Milgaard, Penkala would have heard about it
"through the grapevine" within the police department,
Lockyer observed.
Yet the grapevine did not inform
Penkala that the serial rapist had been caught, that Saskatoon
police had obtained a confession from Fisher and that he had
been pleaded guilty to the Saskatoon rapes in a Regina court.
© The StarPhoenix (Saskatoon)
2005
Penkala still unsure Milgaard
apology warranted
Betty Ann Adam, The
StarPhoenix June 09, 2005
Former Saskatoon police chief
Joseph Penkala said Wednesday he "would have considered"
apologizing to David Milgaard if he had still been chief in 1997,
when DNA evidence exonerated Milgaard in the 1969 rape and murder
of Gail Miller.
"I certainly would have
considered it. I don't think anybody's pleased about the fact
an innocent person was in jail, but I still go back to the fact
that the understanding was that there was nothing that was done
improperly and what am I apologizing to? So I would view it in
that respect," Penkala said during cross-examination by
Joyce Milgaard's lawyer, James Lockyer.
Lockyer pointed out that the
Saskatoon police force is the only party involved in the wrongful
conviction that has not yet apologized to Milgaard.
When DNA evidence revealed
in 1997 that Milgaard had not committed the crime, and showed
Larry Fisher had, Milgaard received apologies from the federal
justice minister, the Saskatchewan justice minister and Crown
prosecutors T.D.R. Caldwell, who handled the trial, and Serge
Kujawa, who handled Milgaard's failed appeals to the Saskatchewan
Court of Appeal and, in 1971, to the Supreme Court of Canada.
Penkala said Dave Scott, who
was chief of police at the time, may not have known the facts
when Scott refused to acknowledge that the DNA results exonerated
Milgaard or to apologize to him.
Saskatoon police lawyer Richard
Elson objected to Lockyer asking Penkala if Saskatoon police
should apologize to Milgaard.
Inquiry commissioner Justice
Edward MacCallum allowed the question, saying it was relevant
because the commission's mandate includes looking into systemic
issues in the wrongful conviction.
Penkala said police couldn't
rely on the media to inform them about facts of the case, but
he was not able to identify any examples of inaccurate reporting.
Instead, Penkala said he was
offended by reporters being "critical," "accusing"
and "demanding" of answers when news came out about
things like Fisher's rape convictions and a Milgaard witness
recanting.
Lockyer showed how information
about Fisher, a serial rapist, should have alerted Saskatoon
police to the possibility they had helped convict an innocent
man.
- Three weeks after Milgaard
was convicted of first-degree murder, the then-unidentified serial
rapist, who had been an early suspect in Miller's death, struck
again, seven blocks away from where Miller's body was found.
- Ten months after Milgaard
was convicted, Fisher confessed to a Saskatoon police officer
involved in the Miller murder investigation, Ed Karst, that he
had committed two of the serial sex offences in Saskatoon. Penkala
said he never found out about this until years later.
- Eleven months after Milgaard's
conviction, Fisher was charged with four sex offences in Saskatoon,
including three rapes and one attempted rape, which was listed
as an indecent assault.
- In December 1971, while serving
a 13-year sentence for two Winnipeg rapes, Fisher was taken to
Regina, not Saskatoon, where he pleaded guilty to the four Saskatoon
sex offences. Fisher was not sentenced to any extra prison time.
He received a 10-year sentence to be served concurrent to the
Winnipeg sentence. Penkala said he didn't find out about that
until many years later.
- Two months after Fisher was
released in January 1980, he raped a woman in North Battleford
and was soon arrested.
- In August 1980, Fisher's
ex-wife Linda Fisher told Saskatoon police she thought Fisher
had killed Miller, including the fact her paring knife had gone
missing at the time. The information was not followed up by Saskatoon
police.
- In June 1981 Fisher was convicted
of the North Battleford rape, in which he told the victim he
had slit the throat of another woman he had raped.
- In the early 1990s, a woman
who was sexually assaulted about 20 minutes after Miller was
killed and just a few blocks away, identified Fisher as her assailant.
Also Wednesday, Penkala acknowledged
that police had two suspects in Miller's death -- Milgaard and
an unidentified serial rapist.
The defence should have been
told about the unidentified serial sex offender so the defence
could have put it before the jury to decide whether they believed
beyond a reasonable doubt that the killer was Milgaard and not
the serial rapist, Penkala acknowledged.
© The StarPhoenix (Saskatoon) 2005
Police didn't hide facts
about Fisher convictions
Penkala
Betty Ann Adam of The
StarPhoenix June 10, 2005
"There is not a crumb
of truth," in the allegation that police hid facts about
Larry Fisher's rape convictions from David Milgaard's lawyers
and family, former Saskatoon police chief Joseph Penkala said
at the Milgaard wrongful conviction inquiry Thursday.
"I am offended to have
that brought forward. . . . I never knew an officer who would
stoop to that," Penkala said while being questioned by lawyer
Aaron Fox, who represents retired police officer Ed Karst.
Penkala denied that Saskatoon
police were involved in the circumstances surrounding Fisher's
conviction in Regina for crimes he committed in Saskatoon.
Milgaard's lawyers have said
the matter was handled in a different jurisdiction to help keep
Fisher's existence a secret from them. The fact Fisher had committed
other rapes in the same neighbourhood in recent months was part
of the information considered by the Supreme Court of Canada
when it quashed Milgaard's 1970 conviction in 1992.
Penkala said this week that
he didn't even know until years later that the serial rapist
who had been active in Saskatoon around the time of the Miller
murder had been caught, convicted and sentenced.
Saskatoon police didn't have
any say in where Fisher would plead guilty or be sentenced, Penkala
said.
Months after Milgaard was convicted
of the Miller murder, Fisher was caught raping a woman in Winnipeg
in September 1970. He was sentenced to 13 years for that and
another Winnipeg rape.
He was taken from Saskatchewan
Penitentiary in Prince Albert to Regina, where he pleaded guilty
to the Saskatoon rapes and was sentenced on Dec. 21, 1971.
The fact it happened just days
before Christmas meant activity in the courts was unlikely to
draw as much attention as usual, Joyce Milgaard's lawyer, James
Lockyer, observed earlier this week.
Saskatoon police also had nothing
to do with when Fisher would plead guilty to the charges, Penkala
said.
Nor did Saskatoon police have
any say in the length of sentence Fisher received, Penkala said.
Fisher was sentenced to 10
years for the Saskatoon sexual assaults, to be served concurrently
with the 13-year sentence he received for the Winnipeg rapes.
The principle of global sentencing
is often used in cases where an offender receives one large sentence
when he or she pleads guilty to a series of charges, Fox said.
Penkala agreed.
It is not uncommon for offenders
who will be convicted of certain crimes to plead guilty to outstanding
offences in order to "start fresh" when they get out
of jail, Fox suggested. Penkala agreed.
There was no attempt to hide
the convictions from the victims, Penkala said.
He didn't know of any police
protocol around 1970 for informing rape victims when their attackers
were convicted. Three of Fisher's victims were not informed that
their assailant was off the streets until Joyce Milgaard told
them years later.
Fox pointed out that within
days of the Miller murder, articles appeared in the Saskatoon
StarPhoenix and the Regina Leader-Post mentioning other sexual
assaults which had recently occurred in Saskatoon.
"Is there any reason to
think David Milgaard's defence wouldn't know about this?"
Fox asked. Penkala didn't know.
Milgaard was charged in May,
1969 for the Jan. 31 murder.
Saskatoon police were not directly
involved in providing disclosure about investigation findings
to the defence, Penkala said. Police followed the direction of
the Crown prosecutor, he said.
Milgaard's lawyers say his
1970 defence lawyer, Calvin Tallis, should have been provided
with information about the then-unsolved sexual assaults so that
the jury could have decided whether it weakened the case against
Milgaard.
Fox also reviewed the information
police had gathered that showed why they continued pursuing Milgaard
as a suspect in the murder.
Fox also showed that, while
police theorized the killer might be the unidentified man who
had sexually assaulted three women in recent months, there were
differences between the murder and the sexual assaults. Miller
was robbed of her purse, while other rape victims were not. Miller
was the only case, at that time, in which the assailant actually
used a knife.
© The StarPhoenix (Saskatoon) 2005
Milgaard investigators
didn't suppress information
Penkala: Says officers not responsible for forwarding reports
to lawyers
Betty Ann Adam, The
StarPhoenix, June 14, 2005
Former Crown prosecutor T.D.R.
Caldwell never asked or told Saskatoon police to suppress or
distort any information related to its investigation of Gail
Miller's murder, former police chief Joseph Penkala told Caldwell's
lawyer Monday.
In his final day on the witness
stand at the inquiry into the wrongful conviction of David Milgaard,
Penkala acknowledged that he did not ensure all his reports made
their way to the prosecutor -- that wasn't his job -- and he
doesn't know which documents from the police investigation would
have been given to Caldwell.
"You didn't take personal
responsibility to be sure that it went to prosecution services.
Not that you were required to, but you weren't one of those officers
who went that extra bit or made sure that everything went. You
followed the system," Knox said.
"That's right," Penkala
said.
In the years since Milgaard
was convicted, his lawyers have alleged the police and prosecutors
deliberately withheld information that could have helped Milgaard's
defence.
Milgaard was convicted of the
January 1969 rape and murder of the 20-year-old nursing assistant
and spent 23 years in prison before the Supreme Court of Canada
quashed the conviction in 1992. By then, one of the witnesses
against Milgaard had recanted, one could not recall her most
damning evidence against him and one had called police interrogation
during the investigation "mental torture." The Supreme
Court also considered the fact a serial rapist, Larry Fisher,
had assaulted other young women in the area around the time of
the murder.
In 1997, DNA evidence showed
Milgaard was not the assailant, and that evidence was used to
help convict Fisher of the crime in 1999.
Penkala acknowledged Monday
that someone within the police department would have determined
which documents were relevant to send to the prosecutor and would
have excluded those which were deemed not relevant.
Saskatoon police did not have
a regular procedure for gathering all information related to
a file before sending it to the Crown prosecutor until the early
1960s, when then-chief James Kettles implemented a case preparation
procedure that delegated the job to one person, Penkala said.
Caldwell's lawyer, Catherine
Knox, showed correspondence between Caldwell and Milgaard's defence
lawyer, Calvin Tallis, in which it appears police did not release
all the relevant information to Caldwell at one time, but rather
provided at least some of the information as Tallis requested
it through Caldwell.
Penkala earlier denied police
suppressed information of their own accord. He said he never
knew that Fisher confessed, a year after Milgaard was convicted
of the murder, to sexually assaulting other young women in Miller's
neighbourhood in the months prior to the murder. Nor did he know
Fisher pleaded guilty in Regina to the Saskatoon crimes.
In the early weeks of the investigation,
Penkala and other Saskatoon police officers investigated the
possibility that the man who had raped two young women and attempted
to rape a third was the same person who killed Miller.
Knox referred to four documents
Caldwell had in the Milgaard prosecution file, which refer to
some of the sexual assault victims. She pointed out that those
reports did not specify a connection to the Miller murder and
some of them had written notations indicating they were "not
connected."
Penkala acknowledged those
documents did not lay out for Caldwell the possibility the rapist
was also the murderer.
Milgaard's lawyer, Hersh Wolch,
reiterated that Fisher was not sentenced to any additional prison
time after pleading guilty to the violent Saskatoon sexual assaults
in Regina. He was already serving a 13-year sentence for two
rapes in Winnipeg when he pleaded guilty to the Saskatoon sexual
assaults.
Contrary to suggestions by
other lawyers at the inquiry, the principle of global sentencing,
in which one large sentence is given for numerous offences, was
not considered when Fisher was sentenced in Manitoba, Wolch showed.
He referred commissioner Edward MacCallum to a letter from the
Manitoba Crown prosecutor which stated that "at no time
was Fisher's Saskatchewan involvement made known to the sentencing
judge, therefore this involvement was not taken into account
in his 13-year sentence."
© The StarPhoenix (Saskatoon) 2005
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
