|
Pre-inquiry
publicity | 2004
| Day 1 | Day
2 | Page 3 | Page
4 | Page 5: The Relentless
interrogation of Nichol John | Page
6 | Profile on Joyce
Milgaard | Got a comment? Post
it on the blog | Sigrid
MacDonald's blogspot
Commission
of Inquiry Into the Wrongful Conviction of David Milgaard:
(Page 17)
Honourable Mr. Justice Edward
P. MacCallum, Commissioner
| Commission website
| Lockyer shows similarities
with Guy Paul Morin investigation |
Even as millions are spent
on this inquiry into a 37 year old murder, two prime examples
of how wrongful convictions occur are unfolding in Saskatoon.
Wilfred Hathway is having
his defence severely handicapped as prosecutor Brent Klause has
successfully obtained an order from now Chief Justice Robert
Laing to keep disclosure out of the hands of his defence team.
Denver Crawford's
memory is not being well served. Material has surfaced which
indicates Dominic McCullock's
lawyer, Mark Brayford, did not provide a vigorous defence for
his client who was convicted of killing Jaime
Wheeler. This brutal murder was described as savage, committed
by a dangerous person, by Judge Laing, even though the conviction
was for second degree murder. This raises again the 2000 conviction
of Leon Walchuk who has steadfastly
maintained his innocence in the murder of his wife and whose
appeals have been turned down, despite evidence not presented
at trial which would show serious flaws in the Crown's case.
<
< < Page 16 |
page 18 > > > | More
background (also see links on sidebar) Sask
to give inquiry another $700,000
Milgaard prosecutor had
questions about murder
Betty Ann Adam, The
StarPhoenix, Tuesday, October 04, 2005
The Crown prosecutor who had
David Milgaard convicted of a murder he didn't commit said he
had unanswered questions about how the 1969 murder happened but
he proceeded with the case, in part, because the police investigation
had provided evidence to prove all the elements of the offence.
Bobs Caldwell, 71, told the
Milgaard inquiry Monday that he never did receive a satisfactory
explanation of how Gail Miller's dress top had been removed and
her coat put back on before she was stabbed.
"That was one of the things
I simply couldn't understand; not that it's up to me to solve
it," Caldwell told commission lawyer Doug Hodson.
"I never had it explained
to me in a form that I could suddenly say that's how it happened,"
he said.
Caldwell also said he never
saw a police document which outlined their theory of the crime.
That theory was written down
when two friends of Milgaard maintained he was never out of their
company long enough to have committed the rape and murder.
Within weeks of the theory
being discussed by senior police officers, the two friends, Nichol
John and Ron Wilson, had changed their stories and provided statements
that covered the points in the police theory, the inquiry has
heard.
The theory document was found
among Caldwell's files on the case, but he said he doesn't know
how it got there. He said the files were somewhat reorganized
after they left his possession.
When he reviewed the files
years later, "this document stuck out as something I hadn't
seen," he said.
Over the years, Caldwell's
files were handed to various justice officials as Milgaard's
case made its way to the Supreme Court and later when the RCMP
looked into Milgaard's allegations of a police cover-up.
Caldwell also said he didn't
know about similar rapes that had occurred in the area around
the time of the murder or that police had originally suspected
the murderer was that same rapist.
(That so-called common perpetrator
theory turned out to be correct but it was abandoned after Milgaard
was identified as a suspect in the murder.)
The unusual arrangement of
Miller's clothing appeared to conflict with a one-time statement
from eyewitness Nichol John, who said she saw Milgaard grab a
woman's purse and then jab her with a knife. John's police statement
said Milgaard then took the girl around a corner.
Caldwell said he didn't consider
whether the dress top was down when John said she saw Milgaard
jab Miller with the knife.
He thought it was possible
the jabs John saw never penetrated her coat and that the stabs
through the coat happened later, when Milgaard and the victim
were out of John's view.
The mystery didn't cause him
to doubt John's story, Caldwell said.
Caldwell also said it didn't
make sense for a person to rape and murder someone, then return
to a car that was stuck in the snow.
"The last way I would
do that is to run to a stuck car," he said.
"You'd want to understand
the evidence you had but I didn't have an explanation,"
he said.
Caldwell wasn't troubled by
witnesses who contradicted witness Albert Cadrain's allegation
he'd seen blood on Milgaard's clothing.
A man at a motel where Milgaard
obtained a map, within minutes of the murder, didn't see blood
on his clothes.
Nor was blood seen by a couple,
Walter and Sandra Danchuck, who encountered the group of teens
in the hours after the murder but before they arrived at Cadrain's
house.
Caldwell said it is not unusual
for witnesses to remember things differently from each other
and the motel employee could have been mistaken about the time.
Caldwell showed that he was
fair to Milgaard by calling the Danchucks to testify even though
their evidence tended to exculpate Milgaard.
He said he had to review and
analyse the police findings and reach his own conclusions.
"You'd have to be alert
to any tunnel vision on behalf of the investigators and maybe
the prosecutors in due course. You should evaluate the thing
and watch for some policemen who can't stand anyone who's charged,
say, with impaired driving. You'd be just alert to whether they're
doing their job properly or not," he said.
Caldwell said that, generally
speaking, he looked for holes in the Crown's case and ensured
elements in the indictment had been covered off. In the course
of that he satisfied himself a case should proceed to trial,
he said.
"I would never close my
case until I had some evidence on each of those things. . . .
I had a careful way of proving I'd done all those things, strong
or otherwise, before I closed the Crown's case.
"I was the one responsible
for the case getting to trial in good or presentable shape."
Where a witness's credibility
might come into play, Caldwell said he looked over briefs of
law from previous cases.
Caldwell had discretion to
stay the charge if main witnesses were "very unreliable"
or if there were missing items or missing witnesses, he said.
Around 1983, Caldwell allowed
a lawyer working on behalf of Milgaard's mother, Joyce Milgaard,
to examine his file on the Milgaard prosecution.
Caldwell also allowed journalist
Peter Carlyle-Gorge to spend two or more days reading those files
as part of an investigation into famous Canadian trials.
MACCALLUM HAS CONCERNS
Justice Edward MacCallum, commissioner
of the Milgaard inquiry, on Monday took issue with media coverage
of the hearings, saying some parties' arguments have been reported
as fact.
Last week James Lockyer, Joyce
Milgaard's lawyer, asserted that a federal government lawyer
was biased in his questioning of Linda Fisher, who had earlier
gone to police to report her suspicion that her ex-husband was
the real killer of Gail Miller.
Lockyer's points were laid
out in a StarPhoenix article and may have been featured in some
broadcast news reports.
MacCallum noted that many people's
only information about the inquiry comes from the media and he
expressed concern that conclusions may be drawn before all the
evidence has been heard.
"One must be patient.
No issue can be said to be fully canvassed until the last witness
has been heard," he said.
"It is obvious to me that
the basis for some of the theories I am hearing lies more in
inference than in direct evidence," he said.
He also took issue with parties
with standing commenting on a witnesses's testimony before the
witness is finished testifying or before they've taken the stand.
"I perceive a threat to
the integrity of the commission's work. . . . I must decry what
I regard as an abuse of the privileges of standing and funding.
"If parties wish to indulge
themselves in running commentary through the media, let them
do so as private citizens, not as parties with standing,"
MacCallum said.
"It matters what the media
reports about the evidence at a public inquiry," he said.
© The StarPhoenix (Saskatoon) 2005
Witness not pressured
Milgaard prosecutor
Betty Ann Adam, The
StarPhoenix, Wednesday, October 05, 2005
The Crown prosecutor in the
David Milgaard case on Tuesday denied pressuring a teenage witness
to make his testimony more incriminating.
Bobs Caldwell was responding
to a question from Milgaard commission lawyer Doug Hodson about
an allegation made by Ron Wilson, who recanted his incriminating
testimony in 1990.
Wilson, who was 17 in 1969,
has said that during an interview prior to Milgaard's 1970 trial,
Caldwell pressed him on how long he and Milgaard were away from
Wilson's car. That time window was important because it was when
Milgaard was alleged to have raped and murdered nursing assistant
Gail Miller.
Caldwell denied the allegation
on Tuesday.
He said he was not troubled
that witnesses changed their stories because their later stories
fit with known facts in the case, and it was not unusual for
witnesses to begin with untruths.
He rejected the early, non-incriminating
statements of Nichol John and Ron Wilson in favour of those they
provided after they were questioned by a Calgary polygraph expert.
In those statements, John said she saw Milgaard stab a woman
and Wilson said Milgaard admitted to the stabbing.
Caldwell said he thought John
may have experienced hysterical amnesia because of witnessing
the stabbing, which could explain why she didn't remember seeing
it when she was first questioned.
He said he continued to believe
John's statement after she refused to repeat it to him in three
later meetings and in court because he thought she was afraid
of Milgaard.
Caldwell recalled an interview
with her in his office, where she ran from the building, giving
him the strong impression she was terrified to testify.
He said his belief was bolstered
when, just before Milgaard's preliminary hearing, other witnesses
told him John had said she saw everything and didn't know why
Milgaard didn't kill her, too.
The other witnesses said John
also told them, as they all waited in a room at the courthouse,
that she wasn't going to say anything in the courtroom, Caldwell
said.
The inquiry into Milgaard's
wrongful conviction also heard Tuesday that Caldwell had possession
of a lab report about forensic testing of evidence from two rapes
that occurred in Saskatoon in the months prior to Gail Miller's
death.
Caldwell has said he doesn't
think he was aware of the rapes, and he was unaware police originally
thought the rapist was responsible for Miller's death.
The lab reports about the October
and November 1968 rapes were stapled along with other lab reports
on the Miller murder investigation.
Correspondence shows Caldwell
sent defence lawyer Calvin Tallis the lab reports, but it is
possible Caldwell did not give Tallis the rape reports because
the document has a wavy line drawn diagonally through it and
the word "omit" in a circle.
There is also a note on the
document in Caldwell's handwriting indicating the document belonged
to a different file.
Caldwell said he doesn't know
if he omitted the report before or after sending the lab reports
to Tallis.
Milgaard's supporters have
said that if his defence had been aware of the other rapes, it
could have cast doubt on the case against Milgaard.
Caldwell's files include a
list of witnesses whose evidence indicated Milgaard was not guilty
and which he disclosed to the defence.
Caldwell met with Tallis prior
to the preliminary hearing and agreed to send him those witness
statements and police reports.
The documents show Caldwell
told Tallis about an early police suspect and showed Tallis the
police report that mentioned the suspect.
On the same police report,
which listed several people interviewed by a detective just days
after Miller's death, was a reference to a conversation with
Larry Fisher at the bus stop where Miller usually boarded the
7 a.m. bus.
Fisher's address, which was
the same as Albert Cadrain's, was noted on the same document.
By that time, the address was
a key location in the murder investigation.
Caldwell said Tuesday Fisher's
name didn't mean anything to him at the time and he didn't notice
the address.
Caldwell couldn't remember
if he gave Tallis the entire page or just the part about the
early suspect.
Miller's wallet was found on
the boulevard a few doors from Cadrain's house, which indicated
the killer had been in the area. Milgaard visited the Cadrain
house the day of Miller's death and Fisher lived in the basement,
but police have said they didn't realize he lived there and never
made the connection to the construction worker noted on the detective's
report.
At the time, Fisher had already
committed the two rapes but he had not been caught, had no criminal
record and was unknown to the police.
Milgaard spent 23 years in
prison before he was released in 1992. DNA evidence was used
to prove his innocence in 1997 and to convict Fisher in 1999.
The commission of inquiry is
looking into the murder investigation, the prosecution of Milgaard
and whether the case should have been reopened as new information
came to light.
© The StarPhoenix (Saskatoon) 2005
Inquiry studies 'Milgaard
rules'
Betty Ann Adam, The
StarPhoenix, Friday, October 07, 2005
The Milgaard inquiry will examine
the then-unusual rules of evidence that were used by the prosecution
to let the jury hear a damning statement that witness Nichol
John refused to repeat at David Milgaard's 1970 murder trial.
Later this fall, the commission
of inquiry will examine Section 9.2 of the Canada Evidence Act,
which has become known in legal circles as the "Milgaard
rules."
That section of the act was
used by the Crown to cross-examine John on a previous statement
she had given, an 11-page, May 24, 1969, statement in which she
said she saw Milgaard stab a woman.
At the trial, John said she
didn't remember what happened that morning.
Crown prosecutor Bobs Caldwell
was allowed to cross-examine her on the statement in front of
the jury for the purpose of showing the jury that John was not
being truthful when she said she didn't remember. The jury wasn't
supposed to consider the contents of John's earlier statement,
just that she had at one time claimed to remember what happened.
After Milgaard was convicted,
he appealed to the Saskatchewan Court of Appeal, based on the
way the rules of evidence had been applied.
"The Court of Appeal concluded
the trial judge had not applied it correctly in every respect.
There was one part that the court should have done differently,
but that it did not affect the outcome, was the court's ruling,"
commission counsel Doug Hodson explained.
The section may have been applied
in cases previous to Milgaard, but that was the first time it
was addressed by a Court of Appeal, which produced a written
decision on how it should be interpreted, Hodson said.
That ruling has been applied
for many years since and used as a guide to dealing with witnesses
who have given previous inconsistent statements.
Milgaard inquiry commissioner
Justice Edward MacCallum informed parties Thursday that the commission
has researched the section and the case law since 1970 and has
assembled a brief for the use of all the parties.
MacCallum told them they needn't
spend any further commission money on legal research that is
already being done by the commission itself.
© The StarPhoenix (Saskatoon) 2005
Joyce Milgaard says judge's
threat 'unbelievable'
- Betty Ann Adam, The StarPhoenix,
October 27, 2005
Joyce Milgaard risked annoying
the commissioner hearing the inquiry into her son's wrongful
conviction, saying Wednesday she feels "intimidated"
by him and adding Canadian people "will be ashamed"
by the proceedings in Saskatoon.
"At this time I feel so
intimidated by the commission, the commissioner, actually, that
it's hard to speak to the press. But I just feel compelled to
respond," Milgaard said. "I can't abandon my fight
for David after doing it for 36 years.
"There seems to be no
understanding of what David's been through," she continued.
"Larry Fisher has funding and standing and I have to sit
here and listen to the commissioner threaten to take away my
son's standing? It's just unbelievable. I think Canadians will
be ashamed to see what is happening here in Saskatoon."
She was responding to commissioner
Justice Edward MacCallum's ruling Tuesday that David Milgaard
must promise to appear at the inquiry or have his standing suspended
until he does.
MacCallum issued the ultimatum
in response to David Milgaard's remarks at a Monday news conference,
where he said he won't appear at the inquiry and won't talk about
his wrongful conviction.
MacCallum took issue with David
Milgaard's comment that he wanted nothing to do with the inquiry
and, in effect, that the commission would be discredited in the
public eye if he were subpoenaed to appear.
"I am determined to continue
with the business of this inquiry thoroughly and impartially.
Obviously my task is complicated by distractions of this kind.
Challenges to the authority of the commission, such as this,
can be ignored only at the risk of loss of public confidence,"
MacCallum said Tuesday.
Hersh Wolch, who represents
David Milgaard, defended him Tuesday by citing medical advice.
Wolch said Milgaard has been advised to avoid reliving the trauma
of 23 years of wrongful imprisonment for murder and five more
years of public skepticism about his innocence, before he was
exonerated in 1997. DNA evidence was used to prove his innocence
and to convict Fisher in 1999 of murder in the 1969 Saskatoon
death of Gail Miller.
MacCallum said he was originally
going to suspend Milgaard's standing and funding immediately
pending an undertaking by Milgaard that he would appear, but
in light of Wolch's remarks, he granted Milgaard two weeks to
provide the undertaking.
David and Joyce Milgaard each
have standing and funding at the inquiry and are represented
by different lawyers.
In January this year, MacCallum
granted Joyce Milgaard funding for travel and accommodation while
attending the hearing, saying the presence of one Milgaard family
member was reasonably necessary, particularly in the phase of
hearings that examines whether the case should have been reopened
in the years after Milgaard's conviction in 1970.
At the time, MacCallum said
David Milgaard could expect to have his expenses paid because
he is in a separate class, as the subject of the wrongful conviction.
On days when he does not attend, his funding could be applied
to Joyce Milgaard, MacCallum ruled.
In that decision, MacCallum
wrote: "Indeed, her remarkable effort deserves to be termed
a crusade, but it is over. The public inquiry is not a continuation
of her crusade. The inquiry belongs to the public, not to Mrs.
Milgaard, nor has she been entrusted with its conduct."
© The StarPhoenix (Saskatoon) 2005
Former prosecutor thought
Milgaard a risk if paroled
Bobs Caldwell wrote letters to parole board, inquiry hears
Betty Ann Adam, The
StarPhoenix,Friday, October 28, 2005
Bobs Caldwell, the Crown prosecutor
who handled David Milgaard's 1970 trial, this week denied deliberately
withholding from the defence information that could have cast
doubt on Milgaard's guilt.
Caldwell also denied several
other allegations of wrongdoing that were made by Milgaard supporters
after his 1992 release from prison, following a Supreme Court
of Canada review.
Caldwell completed his eighth
day on the witness stand at the Milgaard inquiry Thursday, the
last day of a week marked by tension which began after Milgaard
made his first appearance in the hearing room only to say he
wouldn't come to the inquiry.
Milgaard held a news conference
in the hearing room before Monday's proceedings began to draw
attention to the cases of two other wrongfully convicted men
who are still fighting for compensation.
Though Milgaard's position
has previously been that he would honour a subpoena, he said
at the news conference he would not come and suggested the inquiry
would look bad if it issued the legal order for him to appear.
The next day, an angry commissioner
Justice Edward MacCallum ordered Milgaard to promise he would
appear as a witness or lose his standing and funding. A party
with standing can have a lawyer cross-examine witnesses on his
behalf.
According to Milgaard's lawyer,
Hersh Wolch, away from the news conference Milgaard discussed
with commission lawyer Doug Hodson the possibility the commission
could grant him some accommodation, considering the damaging
health effects that could be caused by his reliving the trauma
of the wrongful conviction.
MacCallum gave Milgaard until
Nov. 8 to provide the undertaking he will appear.
On Wednesday, Milgaard's mother,
Joyce Milgaard, made a public statement saying she felt intimidated
by the commissioner. She said there didn't seem to be any understanding
of what her son has gone through.
MacCallum made no mention of
Joyce Milgaard's remarks Thursday and the inquiry continued,
as it has all week, with Hodson resuming his cross-examination
of Caldwell.
Caldwell, now 71, said he did
not learn in late-1970 that a man named Larry Fisher had admitted
committing other sexual assaults in the Saskatoon neighbourhood
where nursing assistant Gail Miller was raped and murdered in
January 1969. Those assaults had been committed in the months
prior to Miller's death.
Nor did Caldwell know police
had once linked those sexual assaults to Miller's death, he said.
"I never received their
entire file of raw material," Caldwell said.
Caldwell has maintained that
police never drew to his attention their early common perpetrator
theory, and that he did not see any significance in references
to rapes, which were in documents found in the prosecution file.
Those documents had handwritten notes by Caldwell indicating
they were not related. Caldwell has said he didn't think there
was any connection.
Caldwell said he believed Milgaard
killed Miller. He believed witness Nichol John's May 24 statement,
in which she said she saw Milgaard stab a woman, was true, and
an earlier, exculpatory statement was untrue, he said.
The inquiry reviewed a Winnipeg
Free Press news article from July 17, 1970, that erroneously
said Caldwell withheld witness Ron Wilson's original, exculpatory
statement from Milgaard's defence lawyer, Calvin Tallis.
In that article, Milgaard's
lawyer, David Asper, said it would be "serious misconduct"
by the Crown to withhold such information.
In fact, Caldwell did provide
that statement to Tallis and Tallis questioned Wilson about it
at the trial, the inquiry has seen, through correspondence and
trial transcripts.
The inquiry also heard this
week that Caldwell took the rare step of writing to the National
Parole Board three times in the 1970s urging it to never give
Milgaard parole.
Caldwell said he wrote the
first letter in 1972 after seeing a parole board booklet that
encouraged judges, magistrates and police to forward information
that would help them in their decisions.
He included photographs of
Miller's body in the snow and at the autopsy. He also encouraged
board members to obtain psychiatric reports about Milgaard and
told them where they could get them.
Caldwell wrote another letter
in 1974 urging parole board members to get the psychiatric records,
and again in 1977, when he sent the death photographs again.
"I cannot over-emphasize
the danger which I think Milgaard would present to other persons
if he were to have his freedom, even on a short and temporary
basis," Caldwell wrote.
He compared Milgaard to David
Threinen, a child molester who killed four Saskatoon children
in 1975, three years after he was acquitted of murdering a 16-year-old
Lethbridge girl.
Caldwell wrote that the Threinen
case was an example of the "inadvisability of granting freedom
to dangerous persons."
© The StarPhoenix (Saskatoon) 2005
Shopping cart story may
upset coverup notion
Les MacPherson, The
StarPhoenix, Thursday, October 27, 2005
It's been a rare week of surprises
at the Milgaard inquiry.
The most jarring of these was
the towering rage of Justice Edward MacCallum, the normally inconspicuous
inquiry commissioner. MacCallum routinely goes for days without
saying a word except "Good morning," and "Adjourned."
This week, however, he all but spontaneously combusted.
MacCallum was furious, and
justifiably so, at David Milgaard, the central figure in this
protracted legal drama, and at Milgaard's lawyer, Hersh Wolch.
They incurred the commissioner's wrath by suggesting at a news
conference that Milgaard, who demanded the inquiry, who requested
and accepted taxpayer funding for legal representation at the
inquiry, won't himself deign to testify. It didn't help that
they made this provocative announcement in the very hotel meeting
room where the inquiry was sitting.
This amounted to a direct attack
on MacCallum's authority. A witness and his lawyer don't tell
the judge how it's going to be; it's the judge who tells them.
A fuming MacCallum made this abundantly clear.
A second surprise was MacCallum's
subsequent leniency. As angry as he'd been, I'd have thought
he might charge someone with contempt. I feared I might even
be charged myself, just for being in the same room. Instead,
the commissioner allowed Wolch two weeks to secure from Milgaard
an undertaking to appear when he's called. In other words, Milgaard
gets two weeks to agree to do what he's supposed to do anyway.
After all that steam, I'd expected a louder whistle.
A third and more significant
surprise came during the testimony of Bobs Caldwell. Now retired,
Caldwell was the Crown prosecutor in Milgaard's 1970 wrongful
conviction. Now we learn it was also Caldwell who personally
saved from impending destruction the evidence that 27 years later
would exonerate Milgaard. This seriously undermines allegations
of a Crown conspiracy to conceal the truth.
Caldwell recalled how exhibits
from the trial were for years stored in a shopping cart parked
in a cluttered, chicken-wire enclosure in the basement of the
Saskatoon courthouse. Then one day came an order from the chief
justice: He wanted evidence secured and the basement cleaned
up. Exhibits from cases long since closed were to be thrown out.
Caldwell and his Crown colleagues
spent a night going through mouldering boxes and file folders.
Most went into the dumpster. There was one item, however, that
Caldwell wanted from the Gail Miller case, this being the notorious
murder for which Milgaard was wrongfully convicted. Caldwell
thought he might one day give a speech about the trial, to service
clubs, say. To help him prepare, he wanted a large chart he'd
had made up, itemizing key points of evidence. This chart, he
presumed, was stuffed in the shopping cart with all the other
exhibits from the grisly crime.
Since he didn't have time just
then to go through the individual exhibits, he ordered they all
be preserved. A note to that effect was placed on the shopping
cart. He'd find later what he wanted and dispose of the rest.
Except he never got around to it.
"As with many of my projects,"
he noted ruefully.
The shopping cart and its contents
remained for years as he left them. In the meantime, while Milgaard
languished in jail, forensic scientists learned to match ever
smaller and older samples of DNA. It was in 1997 that they finally
cracked the case wide open. From that dusty shopping cart would
come the victim's coat that yielded DNA excluding Milgaard and
implicating the true culprit, a serial rapist named Larry Fisher.
But for Caldwell unintentionally
saving this evidence, long after the last appeal was exhausted,
Milgaard would never have been exonerated, Fisher would never
have been convicted and Caldwell might be lecturing service clubs
about his famous prosecution instead of defending himself at
a public inquiry into a wrongful conviction.
His story of the shopping cart
casts justice authorities in a somewhat less sinister light.
If they were involved in a coverup, you'd think they'd have destroyed
the damning evidence instead of hanging onto it for almost 30
years, apparently on a whim.
lmacpherson@sp.canwest.com
© The StarPhoenix (Saskatoon) 2005
- No deals made with prosecution
witnesses
Caldwell
Betty Ann Adam of The
StarPhoenix, Thursday, November 03, 2005
Less than two weeks after 17-year-old
Craig Melnyk testified at trial that David Milgaard re-enacted
the murder of Gail Miller at a motel room party, Melnyk received
an unusually light sentence for an armed robbery, the Milgaard
inquiry heard Wednesday.
But former Crown prosecutor
Bobs Caldwell said it never occurred to him that two youths facing
their own criminal charges would think they might get easier
treatment if they testified for the prosecution in Milgaard's
1970 trial.
"It didn't convey itself
to me, if I may put it that way. I didn't come out with that
caution to myself," Caldwell said Wednesday at the inquiry
in response to questions from Hersh Wolch, who represents Milgaard.
"That would be something
to look at and have in one's mind as a caution," Caldwell
said.
Melnyk and George Lapchuk surfaced
unexpectedly on Jan. 18, the night before the trial was set to
begin, after another Crown witness said they had told him about
the re-enactment.
Melnyk was awaiting trial on
an armed robbery committed in August 1969, while he was serving
a suspended sentence for a previous conviction. He pleaded guilty
in early February 1970 and was sentenced to six months in jail.
His co-accused was sentenced to 2 /2 years in a penitentiary.
A Regina newspaper article
reported that Melnyk's sentence was thought to be the shortest
ever handed out in Regina for an armed robbery.
Caldwell phoned Arnold Piragoff,
the Crown prosecutor handling both Melnyk's and Lapchuk's matters
in Regina, Caldwell's handwritten notes show. Caldwell said he
phoned to make sure the witness court dates did not conflict
with the Milgaard trial dates.
Milgaard was ultimately convicted
of first-degree murder in the January 1969 death of Gail Miller
in Saskatoon. He spent 23 years in prison before he was released
in 1992. DNA evidence proved his innocence in 1997 and helped
convict Larry Fisher in 1999. The commission of inquiry is looking
into the murder investigation, the prosecution of Milgaard and
whether the case should have been reopened as new information
came to light.
Caldwell told the inquiry witnesses
faced with criminal matters might think they would get easier
treatment, even if they hadn't been given such a promise.
Wolch also noted that Caldwell
has said he believed witness Ron Wilson told the truth when he
changed his story and implicated Milgaard after being questioned
by a Calgary polygraph operator because Caldwell trusted the
science.
Wolch pointed out that the
polygraph was not used to test Wilson's new statement. The polygraph
operator, Art Roberts of the Calgary police, has previously said
the polygraph showed Wilson was deceptive when he said he didn't
know who killed Miller.
The polygraph charts and Roberts'
notes on his interrogation of Wilson were not used at the trial
and have never been found when sought for use at subsequent hearings.
Wilson recanted in 1990, saying
he was pressured into giving the false statement against Milgaard.
Wolch also asked Caldwell about
a letter he wrote to Roberts after Milgaard was convicted, in
which Caldwell told him about the outcome of the trial.
In the letter, Wolch suggested,
Caldwell seemed proud of the fact he had managed to put before
the jury a damning statement by Nichol John, who refused at the
trial to repeat what she had told Roberts and a Saskatoon investigator
about seeing Milgaard stab a woman.
Caldwell said his wording was
unfortunate and that he intended only to inform Roberts on the
outcome of the case.
Wolch pointed out Caldwell
also wrote to Miller's family and stated, "I appeared on
this application before a panel of three judges of the Supreme
Court of Canada."
Caldwell acknowledged that
he didn't appear on the application but was a spectator in the
courtroom as fellow prosecutor Serge Kujawa handled the matter.
Caldwell said he didn't intend to give the wrong impression and
had made a poor choice of words.
Caldwell was also cross-examined
Wednesday by Alex Pringle, who represents Calvin Tallis, Milgaard's
defence lawyer at his 1970 trial.
Caldwell acknowledged that
lack of disclosure and his proper use of a new section in the
Canada Evidence Act made it difficult for Tallis to cross-examine
witnesses.
Usual disclosure practices
at that time did not require the Crown to produce police reports
and witness statements, Caldwell agreed.
Tallis did not receive investigators'
reports that described John's and Wilson's early, exculpatory
statements as believable or later reports that show major changes
in statements following three days in police custody in Saskatoon
in May 1969.
"If defence had been able
to see how those statements developed they would have had a much
better chance of breaking down these witnesses in crossexamination,"
Pringle suggested.
"I would think so, sir,"
Caldwell replied.
© The StarPhoenix (Saskatoon)
2005
Caldwell admits he acted
improperly
Betty
Ann Adam, The StarPhoenix, Friday, November 04, 2005
Former Crown prosecutor Bobs
Caldwell admitted Thursday he acted improperly in 1989 when the
federal Justice Department was investigating David Milgaard's
application to have his case reviewed by the Supreme Court of
Canada.
Caldwell wrote a letter to
federal government lawyer Eugene Williams, who was investigating
the matter, in which Caldwell suggested Joyce Milgaard's account
of her son's first-degree murder conviction bore little resemblance
to the crime under review, the Milgaard inquiry heard.
Under cross-examination by
David Milgaard's lawyer, Hersh Wolch, Caldwell acknowledged he
had offered an unfavourable opinion. "OK. It may be an example
of bad judgment," Caldwell said. "You were just plain
wrong to do that," Wolch said. "Yes," Caldwell
said. By that time, Caldwell was a prosecutor for the federal
Justice Department. He said he helped in Williams' investigation
by telling him which witnesses were still available and identifying
the files that would be helpful.
Caldwell has said it would
have been improper for him to try to influence the investigation
and had denied ever doing so. He denied Thursday feeling he was
on the same side as the federal investigator.
Also Thursday, the commission
watched a video produced by Milgaard's lawyers for the 1992 Supreme
Court of Canada review of Milgaard's conviction in the 1969 death
of Gail Miller. Milgaard was released in 1992 after spending
23 years in prison. DNA evidence was used to prove his innocence
in 1997 and to convict Larry Fisher in 1999.
The video, which showed a re-enactment
of the Crown's improbable theory of the crime, was filmed at
the actual locations. It featured Global television reporter
Rena Montgomery, who is a longtime actress in Saskatoon community
theatre, as Gail Miller.
Montgomery has covered the
inquiry since it began in January.
The re-enactment shows Miller
coming out of her rooming house on Avenue O and walking down
a snowy sidewalk toward a bus stop on 20th Street, where Crown
witnesses Ron Wilson and Nichol John said Milgaard's car stopped
and asked her for directions.
The re-enactment of the Crown
theory shows that by the time the vehicle drove to the end of
the block, made a U-turn, drove into the alley behind a funeral
home and got stuck, and by the time Milgaard and Wilson got out
and tried to push the car before walking off in different directions
to seek help, Miller would long since have arrived at the bus
stop.
But Caldwell said the video
depicts a "possible bottom-level alternative to the facts
as I understood them.
"I'm not sure, sir, that
I see that it's impossible, based on what we had at the time
of the trial," he said.
Caldwell also faced questions
about his basis for writing to the National Parole Board three
times in the 1970s, giving the board unsubstantiated allegations
about Milgaard and misrepresenting the findings of psychiatrists
and psychologists who had interviewed him over the years.
Wolch suggested Wednesday that
Caldwell's letters showed he had turned into "David Milgaard's
tormentor." "You wouldn't leave him alone. You had
to keep going at him," Wolch said. Caldwell said he didn't
agree. He said Milgaard is the only person he ever wrote to the
Parole Board about. In a 1972 letter, Caldwell recounted a story
told by Crown witness Albert Cadrain that was not presented at
trial. Cadrain said his story could be corroborated by another
youth, but that youth did not corroborate it and no charges were
ever laid in connection with it. Caldwell presented the bizarre
story to the Parole Board as if it was fact.
He also told the board that
Milgaard's psychiatric history showed he was psychotic and a
grave danger to the public.
However, the inquiry reviewed
a summary of psychiatric reports about Milgaard that showed the
opposite.
Psychiatrists and psychologists
who spoke with Milgaard over the years found that he did not
have a criminal nature and did not fit in with prison culture.
In 1977, a psychiatrist wrote,
"He made it clear there should be no reason for supposing
he would change his mind on the issue of his innocence or guilt.
. . . Milgaard displayed the usual amount of impatience of a
young person eight years into a life sentence, but he showed
no hint of aggression or ill feeling towards the authorities."
In 1979 another wrote, "He
does not suffer from any of the major psychotic illnesses. .
. . He does not demonstrate the features of psychopathic personality."
The reports show that the years
of wrongful imprisonment eventually took a toll on Milgaard's
mental health.
© The StarPhoenix (Saskatoon) 2005
Inquiry hears Milgaard
prosecutor unaware of key witness document
Betty Ann Adam, The
StarPhoenix, November 08, 2005
If Crown prosecutor Bobs Caldwell
had wanted to suppress a document that indicates police knew
the incriminating things witnesses would say before they said
them, he had plenty of opportunity to get rid of it before it
was discovered by later investigations, he told the Milgaard
inquiry Monday.
Under cross-examination by
his lawyer, Catherine Knox, Caldwell said he doesn't know how
the unique document got into his files years after the 1969 prosecution
that led to David Milgaard's wrongful conviction for murder.
"If you, in fact, had
a sinister motive, could you not simply have taken that and ripped
it to shreds?" Knox asked.
". . . If you were trying
to cover up malfeasance or wrong-doing on your part, you had
ample opportunity to destroy these documents rather than find
yourself in a position where you have to lie under oath, didn't
you?" she said.
"All kinds of opportunity,
over years. Anytime I felt like it," Caldwell said.
He said he never saw the document,
which has been dubbed, "the script document," until
1990, when the RCMP were reviewing the case in response to Milgaard's
application for mercy from the justice minister.
When he saw the files after
they had been retrieved from storage in Regina, some of the documents
had been reorganized and the script document was in a new file
folder someone else had started.
Last week, Joyce Milgaard's
lawyer, James Lockyer, questioned how Caldwell could be certain
he had never seen the document before, considering the large
number of papers in the Milgaard prosecution file.
Caldwell reiterated Monday
that the script document stood out because it was so unusual.
Prosecution files normally consist of standard types of police
reports, witness statements and medical and laboratory reports.
There is no indication the
document was in Caldwell's file in 1981, when lawyer Gary Young
looked through it on behalf of Joyce Milgaard, Caldwell said.
He thought Young might have asked about it if it had been in
the file at the time, he said.
Nor did journalist Peter Carlyle-Gorge
acknowledge seeing it when he went through the file in 1983,
Caldwell said.
"I can't think he would
have missed it," Caldwell said.
CBC researcher Sandra Bartlett
also saw the file in the late 1980s and never said anything either,
he said.
The five-page document, which
is believed to have been authored by Det. Sgt. Raymond Mackie,
a lead investigator in the case, lays out a theory of how Milgaard
could have raped and murdered Gail Miller. It included information
that was known by the investigators, such as the fact Miller's
purse had been placed in a garbage can in the alley.
It also included conjecture,
such as the attack beginning as a purse-snatching that escalated
to murder.
The document ended with a recommendation
that Milgaard's companions on the day of the murder, Ron Wilson
and Nichol John, should be brought to Saskatoon and subjected
to hypnosis or polygraphs, so that "the true story"
could be obtained.
The teenagers were brought
to Saskatoon in May 1969 and shown where Miller's body was found,
the garbage can where the purse was found and were provided other
information the police had gathered. Both were kept in police
cells for at least one night and were interrogated by a polygraph
operator from Calgary.
Up to that time, Wilson and
John had said they were never separated from Milgaard long enough
for him to have committed the crime, but by the end of the four
days in May in Saskatoon, both gave incriminating statements
that included points from the theory in the script document.
Also Monday, Caldwell agreed
that sexual offences against women were treated very differently
in 1969 than they are today and it was not unusual for victims
to not be told the outcome of their complaints. There were no
victim services and no rape crisis centres in those days, he
said.
The Criminal Code sections
related to sexual offences were amended in 1982, Knox pointed
out. Before then, some police, prosecutors and even judges downplayed
the seriousness of many sexual offences against women, Caldwell
agreed.
The inquiry has heard that
Caldwell saw witness statements from women who had been accosted
by a man in the Pleasant Hill neighbourhood where Miller was
killed. Those statements had hand-written notes that said "ind
(indecent) assault only. Not connected."
Caldwell has said he didn't
realize there might be a connection between those assaults and
the murder. He never disclosed those statements to Milgaard's
defence.
He agreed with Richard Elson,
lawyer for the Saskatoon Police Service, that the law about disclosure
was unsettled in 1969. The Supreme Court of Canada clarified
the matter in the 1991 Stinchcombe decision.
Caldwell also acknowledged
to Elson that he worked for the Attorney General of Saskatchewan,
not the police, Nor did he take direction from the police when
deciding whether witnesses were credible or their evidence relevant.
Caldwell agreed that when RCMP
and municipal police departments work co-operatively, they should
share reports and findings. The inquiry has heard that Caldwell
never saw three RCMP reports that laid out the early police theory
that Miller had been killed by the same man who had sexually
assaulted other women in the area in recent months.
© The StarPhoenix (Saskatoon) 2005
Caldwell didn't
act improperly, lawyer argues
Betty Ann Adam, The
StarPhoenix, November 09, 2005
The actions of former Crown
prosecutor Bobs Caldwell, which have been portrayed by lawyers
for David Milgaard and his mother as sinister or vindictive,
can also be explained as the actions of a prosecutor who really
believed Milgaard was guilty of the horrible crime he'd been
convicted of, Caldwell's lawyer suggested Tuesday.
Caldwell wrote letters to the
National Parole Board because he'd seen a booklet the board published
which requested input from judges, magistrates and police, he
said during questioning by his lawyer, Catherine Knox.
He based his remarks about
Milgaard's character on things he learned in police reports and
statements from witnesses who spoke to the police while they
focused on Milgaard as a suspect in the Jan. 31, 1969, murder
of Saskatoon nursing assistant Gail Miller.
Caldwell said he was considering
such things as allegations David used drugs at a motel room party
and engaged in sex with a girl while others were in the room.
Caldwell didn't just make up
the things he said in the letters, Knox said.
Some of Caldwell's comments
in the letters were also based on reports about Milgaard that
were prepared by counsellors prior to 1969, the inquiry heard.
Those documents are subject to a publication ban because they
contain personal family information, much of which is not relevant
to the inquiry.
Caldwell has acknowledged that
the reports do not indicate Milgaard had a history of violence.
Some of Caldwell's remarks
were also influenced by a psychiatric report prepared after Milgaard
was convicted and which thus began with the assumption Milgaard
had raped and murdered someone.
Caldwell urged the parole board
to obtain Milgaard's records for themselves and told them what
they needed to do to obtain them.
Knox suggested that things
Caldwell said in his letters were unlikely to be false since
he expected the board to read the files for themselves.
Nor did Caldwell ever try to
hide from Milgaard the fact he was writing to the parole board,
he said.
Caldwell also said he didn't
have any improper intention when he phoned the Regina prosecutor
who was handling charges against two youths who testified for
the prosecution that they had seen Milgaard re-enact the murder
during a motel room party.
Caldwell said he was probably
just making sure their Regina court dates didn't conflict with
the Milgaard trial.
He gave Craig Melnyk and George
Lapchuk an extra warning to tell their story without trying to
help or hurt Milgaard, he said. He did that because he was aware
of their criminal backgrounds, he said.
Caldwell's failure to disclose
evidence that might have helped Milgaard was "an innocent
but unfortunate oversight," Knox suggested.
She also noted that disclosure
rules were different in 1969, with today's rules providing far
more information to defence lawyers.
Knox also suggested that in
1969 police did not do criminal profiling in which they examined
patterns of behaviour, nor was the term "serial" to
describe a rapist or murderer then in use.
Knox noted that the student
did not mention seeing any blood on her assailant's clothing.
Knox also suggested that in
1969 Caldwell wouldn't have automatically thought police might
have influenced a reluctant witness to give a false statement.
© The StarPhoenix (Saskatoon) 2005
Caldwell hurt
by allegations, inquiry hears
Betty Ann Adam, The
StarPhoenix, Thursday, November 10, 2005
The Crown prosecutor who handled
the case that led to David Milgaard's murder conviction says
he is also a victim.
Bobs Caldwell says his reputation
was severely damaged by accusations during the years that he
suppressed information that could have cast doubt on Milgaard's
guilt, that he helped cover up the wrongful conviction and that
he improperly intervened with the National Parole Board and in
the federal justice department's review of the case in the early
1990s.
But he told the Milgaard wrongful
conviction inquiry Wednesday that his suffering didn't match
that of Milgaard, who spent 23 years in prison for a crime he
didn't commit.
Caldwell denies all of the
allegations, but he said he felt there were too many news reports
with untrue allegations for him to respond to them all and he
has chosen not to react to most of them.
The inquiry has heard Caldwell's
explanations for many of the allegations and has seen documents
that support many of his defences.
"It was . . . extremely
difficult to cope with for me and my family," he said.
People he had known for years
looked at him askance and avoided him, he said.
When Milgaard sued him, along
with three police officers and fellow prosecutor Serge Kujawa,
"it had a cumulative affect after all the other accusations
had been made, piled one on top of the other," Caldwell
said.
"It was another very serious
blow in a series that did happen to me. Of course, the press
were all over it. It got to a stage where, in our two-storey
house, I would call down the stairs to my wife and say, 'How
does the paper look this morning?' and she would often reply,
'Terrible.' "
Milgaard discontinued the lawsuit
in 1999 after the provincial government paid him $10 million
in compensation.
Caldwell said the respect of
his peers and his integrity are precious.
"When everything else,
salary, this, that and the other thing, is gone, that is of the
utmost importance in every respect," he said.
Caldwell has said he believed
the witnesses who inculpated Milgaard in the January 1969 rape
and murder of nursing assistant Gail Miller. He has said he didn't
know that police had originally suspected that the killer might
be the same sexual predator who had been operating in the area
in recent months.
There were allegations that
he withheld an early, exculpatory statement by witness Ron Wilson,
but letters in the files and parts of the trial transcript show
that the statement was sent to defence lawyer Calvin Tallis along
with other important witness statements, and that Tallis cross-examined
Wilson on the statement.
There were numerous reports
in the public domain claiming Caldwell had mysteriously kept
a knife found at the scene out of the trial, but that has also
been debunked by evidence at the inquiry, where documents have
been reviewed that show Tallis was aware of a bone-handled knife
that was found on the inside stringer of a fence near Miller's
body.
The knife was found to be unrelated
to the crime and was left out of the case to avoid adding extraneous
information that might confuse the jury, Caldwell has said.
Claims that he left out two
female witnesses who were at a motel room party where Milgaard
was said to have re-enacted the crime are likewise unfair, suggested
Catherine Knox, Caldwell's lawyer.
Deb Hall had run away and couldn't
be found by the time of the trial, but she did eventually corroborate
the stories of the re-enactment made by Craig Melnyk and George
Lapchuk, though her interpretation of Milgaard's attitude during
the incident was different. Hall thought Milgaard was being sarcastic
when he said he committed the crime, while the boys said they
thought he was serious.
The other girl, Ute Frank,
refused to cooperate with police in 1970 but eventually concurred
with Melnyk and Lapchuk.
Caldwell also said he wrote
to the National Parole Board on Milgaard's case because he'd
seen a booklet it published in which it requested input from
judges, magistrates and police. He referred the board to psychological
records that he felt indicated Milgaard would be a danger to
the public if he was released.
When he learned that DNA tests
in the early 1990s proved Milgaard was innocent, Caldwell said
he was "floored."
He, in conjunction with Kujawa,
who had handled Milgaard's appeals, called a news conference
in which they apologized to Milgaard and joined him in calling
for a public inquiry.
"Whatever you may have
done by oversight or otherwise, you were quite prepared to have
the light of public review cast on it by an objective forum.
. . . Was that in part because of the many wrong allegations
that had been put out over the years against you?" Knox
asked.
"Because of the mass of
incorrect information that was afloat all those years, a public
inquiry was the only way to . . . get to truthful evidence, and
we're getting there today," Caldwell said. Caldwell, 71,
was excused from the witness stand Wednesday after 15 days of
testimony. The inquiry continues today.
© The StarPhoenix (Saskatoon) 2005
<
< < Page 16 |
page 18 > > >
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
