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Section 465 of Criminal Code regarding
criminal conspiracy found here
Commission
of Inquiry Into the Wrongful Conviction of David Milgaard:
(Page 22)
Honourable Mr. Justice Edward
P. MacCallum, Commissioner
| Commission website
| Lockyer shows similarities
with Guy Paul Morin investigation |
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background (also see links on sidebar) Sask
to give inquiry another $700,000
Milgaard wraps up inquiry
testimony
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Mar 7, 2006
David Milgaard answered questions Monday in Vancouver for the
commission of inquiry looking into his wrongful conviction.
"He was very co-operative,"
said commission lawyer Doug Hodson, who examined Milgaard in
a downtown hotel boardroom, with a court reporter and video photographer
present.
"When we were all said
and done, I think he was quite fine with the whole process. In
fact, he expressed that, so I think he was happy with how things
went," Hodson said Monday.
The video will be shown to
the commission soon after it reconvenes in mid-April, following
a six-week break which began this week. The video and transcript
will be made public at that time, Hodson said.
Milgaard, 53, was allowed to
give his evidence in his home city following an application for
accommodation.
His lawyer, Hersh Wolch, said
Milgaard suffers from post- traumatic stress disorder and is
traumatized when he has to recall the events that led to his
wrongful conviction and subsequent 23 years of imprisonment.
Commissioner Edward MacCallum
said he wasn't convinced Milgaard has post-traumatic stress disorder
and granted the accommodation only because lawyers for other
parties with standing suggested it as a compromise to Milgaard's
own suggestion that he provide written answers to written questions.
Those parties will be allowed
to see the video before the commission reconvenes. If any have
outstanding questions, which would otherwise have been asked
in cross-examination, it is possible Hodson would return to ask
those questions, Hodson has said. The process is to be complete
by the time the commission resumes April 17.
As it turned out, the oral
question and answer session, which began at 10 a.m. and ended
shortly after 2 p.m., was probably the easier solution for Milgaard,
Wolch said,
"He's thrilled that it's
over. He does not want to have this in his brain. He wishes everybody
well and things like that, but he does not want to think about
it. Who can blame him?" Wolch said. "I think the accommodation
went a long way to taking away the stress that would have been
there.
"Doug Hodson's questioning
was extremely skilful in that he deliberately stayed away from
triggering horrific memories and I think he should be commended
for that. And he was able to get all the questions answered without
hitting the trigger spots."
Milgaard was also comforted
by the presence of his therapist, Joel Grymaloski, who attended
with him, Wolch said.
The atmosphere was friendly
and Milgaard showed pictures of his new son, who was born Jan.
27, Wolch said.
"It's clear that the baby
and his wife are the complete centre of his universe," Wolch
said.
badam@sp.canwest.com
Kujawa attitude reflects
poorly on justice system
Star - Phoenix Saskatoon,
Sask.:Mar 31, 2006.
Letter
The report of Serge Kujawa's testimony at the Milgaard inquiry
sent through me a sense of outrage.
He believes the media and the public do not have "information
and knowledge and background that the justice system should have."
Maybe not, but they have a sense of justice that the pompous
members of the justice system lack.
Those such as Kujawa, Joe Penkala, and Bobs Caldwell are more
interested in protecting their positions, egos and self-iimportance
than in justice.
It does not take a lawyer's degree and training to see how outrageous
these peoples' action were in the light of the evidence. Milgaard
would still be in the tank unless these individuals' actions
had not been discredited.
C. R. Frattlinger
Saskatoon
Milgaard team told to
protect Fisher's rights: Asper
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Apr 18, 2006.
When David Milgaard's family
and lawyers found out about the existence of rapist Larry Fisher
as a possible suspect in Gail Miller's murder, no one was more
protective of Fisher's privacy than Milgaard himself, his former
lawyer, David Asper, told the Milgaard wrongful conviction inquiry
Monday.
"We had very, very serious
concerns about the identity of the suspect. The most vocal concerns
came from David Milgaard himself who was wildly insistent that
we not, in his words, in David Milgaard's words, do to Larry
Fisher what was done to him, David Milgaard," Asper testified
at the inquiry, which resumed Monday following a six-week break.
Asper, now chair of the National
Post newspaper and vice- president of CanWest Global, represented
Milgaard in his efforts to have his 1969 murder conviction reviewed
by the federal Justice Department during the six years he worked
for Winnipeg lawyer Hersh Wolch. Asper then joined his father's
communications business.
Asper is the only witness scheduled
to testify this week at the inquiry, which began its work in
January 2005. The inquiry is expected to finish hearings by late
June.
Milgaard, who by 1990 had been
in prison for 21 years for a crime he didn't commit, was concerned
that public opinion might turn against Fisher before he'd had
a chance for a fair trial, Asper said.
"He was very, very insistent
that we not disclose and pillory Larry Fisher," Asper said.
Wolch had received an anonymous
telephone tip in February 1990 that the wife of a convicted rapist,
who had lived in the neighbourhood of the murder, believed that
her husband, Fisher, had committed the crime.
By that time, the Milgaard
team was frustrated by the slow pace of the federal Justice Department's
response to Milgaard's 1988 application and were impatient for
federal investigators to respond to their application outlining
evidence they thought pointed to Milgaard's innocence.
Milgaard's mother, Joyce Milgaard,
was conducting her own investigation, interviewing witnesses,
and both she and the lawyers were working to attract media attention
to the case in hopes of raising public interest and pressuring
politicians to exert influence that might help Milgaard.
The news stories also resulted
in important witnesses and information, such as the tip about
Fisher.
The Milgaard group provided
journalists with information about the case that raised questions
about the conviction and both Joyce and Asper gave interviews
that kept the public interest alive.
When an anonymous tipster told
Milgaard's lawyers about Linda Fisher's belief that her husband
was the killer, Joyce and a New Jersey-based investigator, Paul
Henderson, went to Saskatchewan and interviewed her and her family
members.
The CBC had committed resources
to investigate the matter and were given Fisher's name but were
asked not to use it before the RCMP, who were investigating on
behalf of the federal justice department, had a chance to investigate
Fisher themselves.
Fisher, who was serving a sentence
for a 1980 rape in North Battleford, was stalling for time as
the RCMP investigator, Sgt. Rick Pearson, tried to persuade him
to undergo a polygraph examination.
Asper said he had a good working
relationship with Pearson and believed he was working as fast
as he could.
Asper had grave concerns about
releasing Fisher's name to the media, just as David Milgaard
did.
"We were trying to liberate
David Milgaard, not prosecute Larry Fisher," he said
sper tried to convince Joyce
Milgaard to stop her investigation of Fisher so the RCMP could
do their work without hindrance but it wasn't long before she
discreetly resumed her efforts, he said.
"I was managing the Milgaard
family and a media horde that had been unleashed and a public
that was growing increasingly interested in the case," Asper
said.
"I was concerned that
the natural pace of an investigation may not coincide with the
pace of the publicity that we had generated and the expectations
of the Milgaard family," Asper said.
The CBC released Fisher's name
in a June 1990 documentary that built a strong circumstantial
case against Fisher.
Asper eventually came to believe
Milgaard's defence team needed to build a strong case against
Fisher to win Milgaard's freedom.
"That's when we . . .
became far more aggressive in actually trying to prove that Fisher
was the true killer," he said.
Milgaard was released after
a 1992 Supreme Court review of his case. DNA proved his innocence
in 1997 and helped convict Fisher in 1999.
badam@sp.canwest.com
Campbell confrontation
turning point, Milgaard inquiry hears
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Apr 19, 2006
The moment in May 1990 -- when then-justice minister Kim Campbell
rebuffed Joyce Milgaard's mother in front of news cameras as
she pleaded for a case review of her son David's conviction --
was a turning point in the public's perception of Milgaard's
struggle, his former lawyer David Asper testified Tuesday.
Joyce Milgaard knew Campbell
was in Winnipeg on other matters, so she planned to accost her
in a hotel lobby and ask her directly to send David's case to
the Supreme Court of Canada, Asper told the Milgaard inquiry.
The media was alerted to Milgaard's
intention to intercept the minister.
"The elevator opened up,
the minister walked out and it became one of the turning points
in the case," Asper said. "The thinking was that it
was going to be a positive moment, that Mrs. Milgaard would meet
the minister and actually say, 'Help me.' What happened was the
minister blew by her and created one of the moments that gets
repeated over and over again and creates an image.
"In the drama as this
unfolded, that moment made Kim Campbell into the Evil Empire.
. . . It catalyzed public opinion," Asper said.
"The huge public outcry
that occurred started with this moment," he said.
Campbell declined to stop and
listen to Milgaard. As she passed by, she said if Joyce wanted
her son to have a fair hearing she should not approach Campbell
personally and that she, Campbell, wanted Milgaard to have a
hearing that would withstand scrutiny.
The Milgaard group, which consisted
mainly of David, Joyce, the lawyers, and at times private investigator
Paul Henderson, had already communicated to Campbell that Milgaard's
application to the minister for a judicial case review was becoming
a controversy that could be defused by Campbell referring it
to the courts, Asper said.
The Milgaard group wanted the
Canadian public to apply political pressure on Campbell to grant
Milgaard's request, Asper said.
"We wanted the political
level to consider that there might be consequences to ignoring
us, electoral consequences."
The negative public image of
Campbell's treatment of Milgaard was exacerbated in February
1991, when she denied his application, Asper said.
Campbell later granted Milgaard
a case review, which was conducted in February and March 1992.
Milgaard was released soon after. In 1997, DNA proved his innocence
and was used in 1999 to help convict rapist Larry Fisher of the
crime.
The commission of inquiry has
also recently received from Joyce Milgaard an additional 50 cassette
recordings of phone conversations that took place between 1990
and 1992.
Asper was questioned Tuesday
about remarks he made in one of the conversations where he and
Joyce were discussing interviewing the main witnesses against
Milgaard -- Nichol John, Ron Wilson and Albert Cadrain.
In the conversation Asper appears
to be suggesting their investigator could plant the idea that
the witnesses were coerced by police into giving false statements
against Milgaard, which would make it easier for them to recant.
Asper appears to suggest that
if the witnesses used those explanations, Milgaard's lawyers
could use the statements even if they knew they weren't true.
Asper said Tuesday he didn't
really intend to use lies. The conversations were part of an
ongoing effort to think up possible ways to shake the witnesses
from their entrenched positions, but he said he would not knowingly
use lies.
"We were brainstorming
and bouncing all kinds of ideas," Asper said.
"This was sophistry with
Mrs. Milgaard. It was simply to try and sort out what the outcome
might be with these witness statements.
"It's entirely possible
that I was motivated at this point by being prepared to serve
up to the Department of Justice what in my view was served up
to the jury for a meal at the trial of David Milgaard. . . .
Lies," Asper said.
"If you got what you knew
to be a lie from Albert Cadrain that assisted David Milgaard,
you were prepared to give that to federal justice to assist in
the reopening?" commission counsel Doug Hodson asked.
"I think it was in my
mind," Asper said.
"Is that what in fact,
happened?" Hodson said.
"No." Asper said.
Henderson, the investigator,
was sent out with no other instructions than simply to get a
statement from Albert Cadrain, which would be turned over to
the Department of Justice, Asper said.
If Cadrain gave a favourable
comment that Asper thought might be a lie, he had the thought
that he was prepared to use it, Asper agreed.
"For the purpose of this
discussion that you've cited to me and I think probably beyond
that, I was prepared to consider that," Asper said.
At that point the commissioner,
Justice Edward MacCallum, asked: "Are you telling me you
were prepared to use a statement which you knew to be a lie in
support of the 690 application (to the justice minister)?"
"We wouldn't know if they
were lies but we were prepared to take what we got, whether it
was ultimately a lie or not, but not knowingly submit a lie,"
Asper said.
badam@sp.canwest.com
- Media attention helped
win review
- Milgaard lawyer: Justice
Department failed in duty, Asper says
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Apr 20, 2006
The federal Justice Department failed in its duty to provide
a fair and unbiased review of David Milgaard's case when former
justice minister Kim Campbell rejected his first application
for a case review, Milgaard's former lawyer said Wednesday.
"It was an abject failure
to comprehensively investigate this matter in the context of
the Milgaard case," David Asper told the Milgaard inquiry.
Milgaard had applied to the
justice minister in December 1989 to review his murder conviction
in the January 1969 death of nursing assistant Gail Miller, a
crime he had always denied committing.
The application questioned
the forensic evidence about semen found in the snow and included
the statement of a motel party witness, Deb Hall, who said Milgaard
was being sarcastic when he admitted killing Miller after others
bugged him about the fact he was a suspect in the murder.
Asper said he assumed the Justice
Department would conduct an impartial review of the case that
would include interviews of the main witnesses. But these witnesses
weren't contacted until after Joyce Milgaard tracked them down
and interviewed them herself, he said.
"Every piece of evidence
that was ultimately used to free David Milgaard was evidence
that was provided by the Milgaard camp, not by the Department
of Justice. And every step of the way, the Department of Justice
had to be dragged kicking and screaming to look into the new
evidence that was being provided," Asper said.
"The minister says in
her letter (denying the application) the department has 'as its
duty' an objective discovery of the facts and it failed in its
duty," Asper said.
By mid-1990, Milgaard, his
family and lawyers were frustrated with the lack of communication
from Justice Department staff about the application and came
to believe the main investigator, Eugene Williams, was biased
in favour of maintaining the conviction, Asper said.
In February 1990, Milgaard's
lawyers learned about rapist Larry Fisher, who had lived about
two blocks from the murder scene, in the basement of a house
Milgaard and his friends had visited the day of Miller's death.
They also learned Fisher had
been convicted of raping other women around the time of Miller's
death, but they thought those Saskatoon offences had occurred
in Regina because that's where Fisher had pleaded guilty in court.
Asper and senior lawyer Hersh
Wolch added the information about Fisher to the first application.
Over time, Joyce Milgaard and
Asper had begun providing journalists at the Winnipeg Free Press,
the Globe and Mail and the CBC with information about the case.
The publicity was intended to create public pressure on the politicians
to take another look at the case, Asper said.
"Nothing we did made any
difference until the national desk of the Globe and Mail and
the Toronto Star started phoning the Department of Justice,"
Asper said.
Milgaard's lawyers sometimes
went over Williams' head to his superiors and to staff in the
justice minister's office because they doubted Williams was providing
fair and complete information about the case, Asper said.
In the summer of 1990, Asper
also added to the application the recantation of Crown witness
Ron Wilson, who said he lied when he testified against Milgaard.
Asper also added a statement from Crown witness Albert Cadrain
saying he was put through "mental torture" by police
after he came forward and the statement of another medical expert
who said semen found in the snow at the crime scene might actually
have been dog urine.
Asper and the Milgaards were
confident they had enough information to meet the test laid out
in Section 690 of the Criminal Code, which required them to demonstrate
that "a reasonable basis exists to conclude that a miscarriage
of justice has likely occurred."
During an October 1990 meeting
between Milgaard's lawyers and Justice Department officials,
Asper said Williams revealed his bias by arguing against every
piece of evidence that attacked the conviction and in favour
of anything that supported it.
In February 1991, Campbell
denied Milgaard's first application.
Asper said he disagreed with every reason Campbell gave for rejecting
the application. In particular, "She didn't take the Fisher
information seriously enough to reopen the case," Asper
said.
Milgaard made a second application in August 1991.
By then, the New Jersey-based
Centurion Ministries had written a report with the information
it had gathered showing the similarities between the Miller murder
and seven sexual assaults Fisher had committed in Saskatoon.
Joyce Milgaard sent the report to every member of Parliament
in Canada and released it to the media.
It was also included in the
application.
Newspaper articles reviewed
by the commission Wednesday show Centurion Ministries publicly
alleged that Saskatoon police framed Milgaard and then, when
Fisher was caught and they realized their mistake, covered up
information about Fisher.
Asper said he was so fed up
with the entire process by that time that he probably wasn't
as concerned about the possible impropriety of the allegations
as he should have been.
"I think my mindset at
the time was one of such thorough disgust at the process up to
that point that I was probably less concerned than I might normally
have been," he said.
Campbell granted the second request in November 1991 and referred
the case to the Supreme Court of Canada, which reviewed the conviction
in January 1992. The Supreme Court set aside Milgaard's conviction
on April 14, 1992, and Milgaard was released.
In 1997, DNA evidence proved
his innocence and in 1999 it was used to help convict Fisher
of the crime.
badam@sp.canwest.com
Police 'script document'
hit like ton of bricks: Asper
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Apr 21, 2006
The Supreme Court of Canada
came to the wrong conclusion when it found there was no evidence
that Saskatoon police had acted improperly when they investigated
David Milgaard in the 1969 death of nursing assistant Gail Miller,
his former lawyer said Thursday.
"I disagree with the judgment,"
David Asper said Thursday at the Milgaard wrongful conviction
inquiry.
Crown witnesses Nichol John
and Ron Wilson gave statements that conformed to a police theory
that had been drafted before they gave the statements, he said.
"In my view, that was
evidence of improper conduct," Asper said.
The Supreme Court quashed Milgaard's
conviction in April 1992 and caused his release from prison after
23 years, but it may have created as many issues as it resolved,
Asper said.
Former federal justice minister
Kim Campbell ordered a new trial, but the Saskatchewan Justice
Department stayed the charge against Milgaard, saying even if
it got a conviction, the Supreme Court had directed that he shouldn't
serve any more time in prison.
"It left David in limbo,
and that was coupled with comments by various offi cials that
supported the original conviction," Asper said. "This
had not cleared David."
Comments by justice officials
and police during the years showed many still considered Milgaard
guilty. He lived under the shadow of those suspicions until 1997,
when DNA evidence proved he was not the man who had raped Miller
before she was murdered. The DNA matched Larry Fisher, who was
convicted of the crime in 1999.
The Supreme Court's decision
said that Milgaard had the benefit of a fair trial, that the
Supreme Court had "not received probative evidence"
that the police acted improperly or that there was inadequate
disclosure of evidence based on practices of the day.
Asper said the Supreme Court
did not receive that evidence because it dictated before the
hearing began that it would not look at the reasons for the possible
wrongful conviction.
Asper said the court found that new evidence, including information
that a rapist using similar methods was operating in the area
at the time, could have affected the verdict if the jury had
known about it.
"If the information was
available at the time of the trial, how could the trial have
been fair?" he said.
Commission lawyer Doug Hodson
said the remarks in the court's decision were later relied upon
by Saskatchewan justice officials to maintain nothing had gone
wrong in the Milgaard investigation or prosecution.
Former Saskatchewan justice
minister Bob Mitchell said years later that Milgaard was guilty
of the crime, Hodson noted.
Also Thursday, Asper recalled
that Milgaard's lawyers were in Ottawa, going through documents
disclosed to them for the Supreme Court hearing, when they discovered
a police document that seemed to predict what police witnesses
would say before they said it.
"It hit us like a ton
of bricks," Asper said.
The document, which has previously
been referred to as "the script document" and "the
smoking gun," has now been dubbed by Commissioner Edward
Mac-Callum as "the Mackie summary."
It is named for Saskatoon police
detective Raymond Mackie, who testified last year at the inquiry
that he thought he was the person who prepared the document prior
to the weekend of May 21, 1969, which culminated in Wilson and
John giving statements blaming Milgaard for Miller's death.
"Somebody had prepared
a script of what the witnesses were going to say in order to
implicate David and create a case upon which a prosecution could
be conducted," Asper said.
Asper agreed with Hodson that he, Asper, thought, "it was
a document that may have been or was used by the police to influence
or coerce or manipulate witnesses' testimony."
Asper also criticized Campbell,
saying after her first denial of Milgaard's application for a
case review, she would have been satisfied with a flawed process
if the media and public had not pressured her to reopen his case.
"We had come to a view
that we were not getting a fair shake at the federal Department
of Justice. We didn't know whether the minister was part of that
or not. We didn't know what was going on. The public campaign
was initially to get the minister's attention on the assumption
that (she) would take an interest and ensure proper action was
being taken on the Milgaard file.
"I think it perfectly
likely that without the public pressure and possibly without
the intervention of the prime minister (Brian Mulroney) when
he met Mrs. (Joyce) Milgaard . . . this minister would have ignored
the public pressure and been content with a flawed process that
would have kept David in prison," Asper said.
Campbell granted the review
after Milgaard's second application.
badam@sp.canwest.com
Sparks fly at Milgaard
inquiry
The Windsor Star Windsor,
Ont.:Apr 22, 2006
SASKATOON - David Asper, former lawyer for David Milgaard, said
he believes the wrongfully convicted are today better off as
a result of work done on the case, even if some people's feelings
were hurt in the process.
Sparks flew Friday afternoon
at the Milgaard wrongful conviction inquiry as Garret Wilson,
the lawyer for former Crown prosecutor Serge Kujawa, tried to
get Asper to acknowledge he made a mistake in suggesting Kujawa
and other Saskatchewan justice officials acted improperly in
their handling of Milgaard's conviction.
Asper acknowledged the hurt
caused to some people, but continued to measure the insults felt
by some against the "horrible, horrible" wrong of Milgaard's
23 years in prison.
Asper said he relied upon the
process set out in section 690 of the Criminal Code.
He said he wanted an independent
party to manage a process in which justice officials and the
Crown prosecutors would meet with Milgaard lawyers where all
could lay their information on the table, discuss the possibility
of a miscarriage of justice and figure out how to address the
problem.
Asper said the six years he
spent working to free Milgaard was "an extraordinarily difficult
period."
"The effort to win David's
freedom and ultimately to establish his innocence was a process
that I regret having to happen, and (I) regret having to have
been put in the position where we felt we had no other choice
but to do what we did," Asper said.
"I do sincerely wish that
it could have happened another way and I want to point out that,
even though I still have a philosophical difference with the
way wrongful convictions are handled today under the Criminal
Code, I believe that everything we did has contributed to a better
process and the wrongly convicted have a better chance today
than David Milgaard had in 1992 or in '88 when we started. So
I guess from that, some good came of it," Asper said.
Taking risks freed Milgaard:
former lawyer
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Apr 22, 2006
David Milgaard's former lawyer,
David Asper, acknowledged Friday that some people were hurt in
the campaign to exonerate his client, but the insults some felt
had to be measured against the "horrible, horrible"
wrong of Milgaard's 23 years in prison.
Tensions ran high Friday at
the Milgaard wrongful conviction inquiry as Garret Wilson, the
lawyer for former Crown prosecutor Serge Kujawa, clashed with
Asper.
Wilson tried to get Asper to admit he made a mistake in suggesting
Kujawa and other Saskatchewan justice officials acted improperly
in their handling of Milgaard's 1970 murder conviction.
Irritation was evident in the
voices of both men as Wilson questioned Asper's suspicion that
Milgaard was framed.
"The wrong guy got convicted
so something happened. It might have been innocent and it might
not have been and if it wasn't, I think we should find out, don't
you?" Asper said.
Wilson replied by saying, "I
don't know how helpful it is to make wild allegations of criminal
conduct against the people trying maybe to do the best job they
could."
"Let me tell you from
the other perspective of someone who's spent 23 years in prison
for something they didn't do," Asper said. "Maybe you're
prepared to take a risk and try to crack something open in order
to get your freedom."
"I can see why David Milgaard
would do that, but why would David Asper do that?" Wilson
said.
"Maybe David Milgaard
sitting in a prison without any resources needs some help. And
maybe nobody else was prepared to do that and maybe until there
was somebody who decided to do it that finally some action happened
and we got to the truth of the David
Milgaard wrongful conviction,"
Asper said.
"But you have some obligations
and responsibilities as a member of the profession," Wilson
said.
"I have a duty to my client
and I have a duty to my profession and sometimes extraordinary
circumstances arise such as I believe was the case in the Milgaard
affair," Asper said.
Wilson suggested Asper could
have taken the file to Kujawa, who was known to be fair and efficient,
and talked to him about the problem with the conviction.
Asper said he relied upon the
process set out in Section 690 of the Criminal Code. He expected
the federal Justice Department to act as an independent party
to manage a process in which all of the parties concerned would
meet and lay their information on the table, discuss the possibility
of a miscarriage of justice and figure out how to address the
problem.
Asper gave Kujawa a qualified
apology.
"If Mr. Kujawa did not
have information to disclose and did not withhold information
deliberately from the Milgaard team, the Milgaard lawyers, either
at the appeal or at any time thereafter, then I apologize to
him -- if he did not withhold information," Asper said.
Wilson responded that there is no evidence Kujawa withheld anything.
Asper acknowledged that he
was sometimes brash in his comments about the case and that he
was not always vigilant in checking facts, as when he said in
a news interview that rape files involving Larry Fisher had recently
gone missing from the Saskatoon police department. Evidence heard
at the inquiry shows the files had been destroyed some years
earlier in a routine purge of old documents.
Fisher was convicted of murder
in 1999 in the 1969 death of Gail Miller, after DNA evidence
helped prove Milgaard's innocence in the crime in 1997.
Asper said the six years he
spent working to free Milgaard was "an extraordinarily difficult
period" for himself and for Milgaard and his family.
"The effort to win David's
freedom and ultimately to establish his innocence was a process
that I regret having to happen and regret having to have been
put in the position where we felt we had no other choice but
to do what we did," he said.
"It was a messy process.
It cost David a lot of years in prison . . . and I know that
a lot of people felt swiped (at) on many occasions because it
involved many people who were private having their names made
public.
"It involved torqued headlines
and media characterizations that, in hindsight, maybe weren't
fair.
"I do sincerely wish that
it could have happened another way."
Asper will return to the witness
stand but no date has yet been set.
The inquiry resumes Monday
at the Ramada Hotel, where a videotape of David Milgaard's March
6 testimony will be viewed.
badam@sp.canwest.com
Milgaard questioned own
innocence
Tim Cook. Prince Albert
Daily Herald Prince Albert, Sask.:Apr 25, 2006
Spending more than two decades
behind bars for a murder he didn't commit played with David Milgaard's
sanity and led him at times to question his own innocence, an
inquiry looking into his wrongful conviction heard Monday.
Testifying in a videotape made
last month, Milgaard said he knew he was not guilty, but began
to doubt himself after being misdiagnosed with different psychological
problems under the assumption he was a murderer.
'The bottom line is if a person
really, really has trouble dealing with ... the fact that he
is not guilty and he has gone over it a lot of times in his own
mind, he begins to question himself, you know, 'Is it possible
I was guilty?" Milgaard testified.
'I don't like to say that publicly
like this, but at one point in my mind I'm saying, 'Well, is
it possible I could have possibly done this?' because this is
many, many years later and I was just really messed up mentally.'
Milgaard spent 23 years in
prison for the 1969 rape and murder of Saskatoon nursing aide
Gail Miller. Now 53, he was 16 at the time of the crime and was
passing through Saskatoon on a road trip with friends.
He was convicted on the strength
of evidence from his travelling companions, who testified against
him at his original trial.
It wasn't until 1992, with
holes appearing in the stories his friends had told and suspicion
emerging around serial rapist Larry Fisher, that his conviction
was overturned by the Supreme Court.
Five years later, DNA evidence
proved he didn't commit the crime. Fisher was eventually convicted.
Milgaard was allowed to give
video testimony to minimize the stress of telling his story in
person. On the tape he appeared calm and was forgiving at times.
While admitting he was 'dumbfounded'
by what they had to say from the witness stand, he sympathized
with the friends who testified against him, calling them victims.
'I am a person that has grown
in a lot of different ways in my life, some of them, amazingly
enough, inside prison,' Milgaard said. 'I don't hold anything
against them and I hope they realize that. They were kids, like
I was, on a lark. Hippies.'
The inquiry has already heard
how it was one friend, Albert Cadrain, who initially directed
police in Milgaard's direction by coming forward to say he saw
blood on Milgaard's clothing the morning of the murder.
After a number of interviews
with police, friends Ron Wilson and Nichol John also implicated
Milgaard but, over the years, have either recanted or never repeated
their accusations publicly again.
While refraining from citing
specific examples, Milgaard said he can't help but think that
some sort of corruption in the system led to his wrongful conviction
and two decades in jail.
His family has long alleged that officials in the justice system
took deliberate steps to ignore evidence as it trickled forward
that would have freed him a lot sooner.
Lifestyle likely worked
against Milgaard: criminology professor
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Apr 26, 2006
The fact that David Milgaard
and his friends were pot-smoking hippies in 1969 may have worked
against them after they came to the attention of police, says
a criminology professor who analyzed the evidence in the case
in 1991.
Neil Boyd, a criminology professor
from Simon Fraser University, and Kim Rossmo, who was then a
PhD candidate, reviewed Milgaard's case, including the effect
the teenagers' hippie lifestyle of drug use and free love may
have had on how they were viewed by authorities and the public.
"These three hippie kids
were already seen as morally suspect in terms of the era,"
Boyd said Tuesday at the Milgaard wrongful conviction inquiry.
"I think it was something
of a factor. The fact that three hippie kids came into Saskatoon
in the early morning of later January and then went off to buy
marijuana in Edmonton and went on to have a crazy party weekend,
that kind of behaviour at the time was seen as a good deal more
threatening than it is today.
"Our attitudes toward
illegal drugs have shifted dramatically in the intervening years,"
he said.
"Mainstream music that
you hear in the shopping centres now would be seen as outrageous
by the standards of 1969 in terms of the lyrics and ethics that
were said to be espoused in that music," Boyd testified.
"Its always interesting
to look back on a different era and ask how we judge people in
that era," he said in an interview after he finished testifying.
"It wasn't long ago homosexuality
was criminalized. In the late '60s and '70s, marijuana use was
seen as indicative of a major social problem and at the individual
level was seen as pathological. Today we're having a debate about
whether it should be sold in liquor stores.
"That casts a shadow.
It raises questions about how the culture of the day would view
three hippie kids coming into Saskatoon on the morning of January
31. They might be viewed as suspects because of their association
with that culture.
"It's not a critical role
that culture plays, but it plays a role as a backdrop."
Boyd and Rossmo conducted their
study in the months after then- justice minister Kim Campbell
turned down, in February 1991, Milgaard's first application for
a case review.
"I don't think that it
was a fair reading of the evidence," Boyd said.
Boyd said he thought that there
was enough evidence to show there had been a miscarriage of justice
and that Campbell should have reopened the case.
Boyd's and Rossmo's report
was included in Milgaard's second application for a case review,
which resulted in the case being referred to the Supreme Court
of Canada, which quashed the conviction in 1992.
The Supreme Court ordered a
new trial but Saskatchewan Justice stayed the charges, saying
even if Milgaard was convicted again, the Supreme Court said
Milgaard could not be imprisoned any longer anyway.
Boyd said he was also disappointed
with the Supreme Court decision.
"I think a fair reading
of the evidence in that case leads you to the conclusion that
David Milgaard's innocence is more powerful than his guilt,"
Boyd said.
"I was disappointed with
the Supreme Court, not so much on the logic on the law but on
their reading of the facts . . . on the way they evaluated the
evidence before them," he said.
Rossmo, now a criminology professor
at Texas State University, who was raised in Saskatoon, also
took the witness stand Tuesday.
A former Vancouver police officer,
Rossmo became a pioneer in the study of criminal geographic profiling,
a term he coined. He examined the locations of known rapes conducted
by Larry Fisher, compared them to the location of murder victim
Gail Miller and found it supported Fisher, rather than Milgaard,
as Miller's attacker. Fisher was found guilty of the crime in
1999.
Rossmo continues testimony
today.
Documents and transcripts of
the hearings are available on the commission's website at www.milgaardinquiry.ca.
Prosecutor had evidence
supporting Milgaard's innocence: Asper
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:Apr 29, 2006
Some of the negative allegations
levied against David Milgaard prosecutor Bobs Caldwell might
not have been made if defence lawyers had obtained files from
Caldwell and other lawyers who had represented Milgaard in the
past, one of Milgaard's former lawyers said Friday.
But there probably would have
been different, possibly worse, allegations, David Asper said.
"I really wonder what
could have happened, and I want you to consider the possibility
of an even greater doomsday scenario frankly, if we had Mr. Caldwell's
file and the Department of Justice still was not granting us
relief," Asper said in cross-examination by Caldwell's lawyer,
Catherine Knox, at the Milgaard wrongful conviction inquiry.
"If we knew all that Mr.
Caldwell had in the file in terms of the witness statements and
we still weren't getting action from the Department of Justice,
I have to be very candid with you, it could have been worse."
he said.
Caldwell's file contained witness
statements that undermined the Crown's murder case against Milgaard
but which were not disclosed to his lawyer.
It also included RCMP crime
lab reports comparing evidence from the Gail Miller 1969 murder
investigation with evidence from two other rapes that had been
committed in the same area of Saskatoon.
Saskatoon police had asked
a lab, in the month before Milgaard was identified as a suspect
in the murder, to see if there was a connection between the crimes.
Someone, apparently a police
officer, had drawn a wavy diagonal line through the pages and
written, "omit," and "not connected," on
them, but they were included in the materials sent to Caldwell
as he prepared for the trial.
A statement from a university
student who was groped by a stranger on the street a few blocks
away, the same morning Miller was killed, was also in the file
with the same wavy lines and notations.
Caldwell's files also included
a letter by then lieutenant Joe Penkala of the Saskatoon police
to the RCMP crime index in Ottawa drawing comparisons between
the Miller murder and the recent rapes.
Caldwell has said he did not
know there had been a series of sexual assaults by an unidentified
man in the months before the murder. He said he never made a
connection between the rapes and the Miller murder.
"I find it odd that files
of this potential importance were in Mr. Caldwell's file and
marked, 'Not connected,' " Asper said.
"You have to wonder why,
with all of the (Larry) Fisher activity going on in the context
of the Miller murder, it's not crazy to wonder why it didn't
twig," he said.
In late 1971, Fisher pleaded
guilty in Regina to three rape charges and one indecent assault
charge stemming from incidents in Saskatoon.
He was convicted of killing
Miller in 1999, after Milgaard was cleared by DNA evidence in
1997.
Caldwell believed Milgaard
was the killer, Knox said Friday, pointing out that if he had
knowingly ignored information about another suspect and wanted
to cover it up, those documents probably would not still be on
his file, which he made available to journalists and lawyers.
The fact Caldwell's files appear
to be intact shows it may have been unfair for Asper to say in
the media that Caldwell was in a conflict of interest when he
helped the federal Justice Department find his files and to imply
that Caldwell might tamper with them, Knox suggested.
Knox took Asper through documents
showing that Caldwell had previously allowed journalists to examine
the voluminous file he compiled during his prosecution of Milgaard.
Caldwell also had invited Gary Young, another lawyer who acted
for Milgaard, to look at the files when he called to ask about
them.
Knox suggested if Asper had
simply requested the file from Caldwell early in Asper's examination
of the case, he could have avoided making unfounded, negative
allegations about Caldwell.
They included an allegation
that Caldwell got rid of evidence, a bone-handled knife, before
the trial. Documents from Caldwell's file show the officer who
found the knife was at the courthouse prepared to testify when
Milgaard's lawyer, Cal Tallis, and Caldwell agreed to leave it
out of the trial because it had been found to be unrelated to
Miller's death and would just confuse the jury.
Tallis agreed with that when
he testified at the inquiry earlier this year.
Investigator believed
Milgaard was innocent
Betty Ann Adam. Star
- Phoenix Saskatoon, Sask.:May 2, 2006
Media 'ambush' of witnesspart
of Henderson's work with Milgaard's mother
David Milgaard's mother and a private investigator had a television
news crew hide in an apartment hallway as they attempted to capture
a trial witness refusing to give them an interview in August
1991.
Joyce Milgaard and investigator
Paul Henderson had approached witness George Lapchuk the day
before. Lapchuk had told them authorities had told him not to
speak to them and had slammed the door in their faces, Henderson
testified Monday at the Milgaard wrongful conviction inquiry.
The pair returned the next
day with a television reporter and camera to obtain news footage
of Lapchuk's response to their request. They had the news crew
hide around the corner, in what Henderson called, an "ambush."
Lapchuk, who has since died,
surprised them and invited them inside. Henderson and Milgaard
went inside but didn't tell Lapchuk about the news crew, which
they left out in the hall.
Lapchuk gave Henderson a 20-minute
interview, in which he stood by his trial testimony of having
seen David Milgaard re-enact the stabbing of Gail Miller during
a motel room party about three months after the murder and after
Milgaard had been questioned as a suspect in the murder.
Later, as Henderson and Joyce
Milgaard left the apartment building, Henderson realized he had
forgotten his notebook in Lapchuk's apartment.
Henderson returned to ask for
it and found that, in the minutes since they'd left, one of Lapchuk's
neighbours had informed him of the news crew that had been staking
out his apartment.
"He was furious and red
in the face, livid. And he chased me, actually, down to the elevator.
I got on the elevator and got out of there. Never did get my
notebook back," he said.
The inquiry has heard that
Joyce Milgaard conducted her own investigation, sometimes with
help, as she tried to gather information that would convince
the federal department of justice to review her son's murder
conviction.
Milgaard's first application
had been dismissed in February 1991. A second application, filed
in August 1991, resulted in the case being referred to the Supreme
Court of Canada, which quashed the conviction.
Milgaard was released after
23 years in prison. Five years later, DNA evidence was used to
prove his innocence and in 1999 was used to convict rapist Larry
Fisher of the crime.
Henderson, who works for New Jersey-based Centurion Ministries,
a prisoners' advocacy organization, worked on the Milgaard case
for about three years. During that time he interviewed several
of the main witnesses in the case, hearing the recantation of
Ron Wilson and the statement by Albert Cadrain that police had
subjected him to mental torture.
Henderson said he firmly believed in Milgaard's innocence and
approached interviews with Crown witnesses assuming they had
lied when they implicated Milgaard in the murder.
"It doesn't necessarily
mean police knew they were building a case against an innocent
person; it's possible they thought David Milgaard was a good
suspect," Henderson said.
"I think police were responsible for the wrongful conviction
of David Milgaard," he said.
He said he was not willing
to knowingly accept lies that helped Milgaard because such lies
would probably not hold up in court and would ultimately backfire.
badam@sp.canwest.com
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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
