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James Driskell,
2006
Previous |
Driskell Inquiry Transcripts | | Ewatsky
takes the stand at Driskell Inquiry |
Reports on this page are
in descending order
---------
- Perspective: Driskell
Exposed
In 1991, James Driskell was wrongly convicted of murder; now
a judicial inquiry will try to find the reason
By DAN LETT, Winnipeg Free Press,
July16 2006
MORE than 2,000 kilometres and 15 years
from where his ordeal began, Jim Driskell stood in a second-storey
office in idyllic Princeton, N.J., staring at a long list of
names posted on a large, black message board.
The board listed all the current cases
of Centurion Ministries, a non-profit organization that investigates
suspected wrongful convictions. The board includes the name of
the inmate, the city where the crime took place, and the date
of conviction. Some of the cases date back to the early 1960s.
Eight names up from the bottom of the long, sad list were letters
that spelled out "James Driskell."
Convicted of murdering his friend Perry
Dean Harder in Winnipeg in 1991, Driskell was one of only two
Canadian cases ever to make Centurion's list. Thanks to the efforts
of Centurion and a diligent team of lawyers in Canada, Driskell's
conviction was quashed in March 2005. As one of the group's success
stories, he was eligible for the most honoured of all Centurion
traditions: removing his name from the case board.
Driskell leaned forward and began to
pluck off the tiny white plastic letters that made up his name.
When he finished, there was applause from two dozen onlookers
and a warm embrace from Centurion founder Jim McCloskey.
"I never thought this day would
come," Driskell said, tears welling up in his eyes.
Wayne Eastridge, a bear of a man with
a thick Virginia drawl, was exonerated in 2005 after nearly 30
years in prison for a Washington, D.C., murder. Eastridge yelled
to McCloskey: "OK, who you gonna put up there to replace
our names?" (continued below chronology)
From conviction to freedom:
Driskell's long ordeal
CHRONOLOGY of events in the murder
of Perry Dean Harder and the now-quashed conviction of James
Patrick Driskell.
* SEPT. 30, 1990: Harder's badly decomposed
body is found in an open pit along a rail line near Brookside
Boulevard by workers with the Prairie Dog Central train. He had
been shot in the chest with a .22-calibre rifle. Harder's body
is so decomposed that police must rely on University of Manitoba
anthropology experts to identify him with the use of dental records.
Police immediately release a statement indicating Harder's involvement
in a chop-shop case is at the heart of the slaying.
* OCT. 23, 1990: Driskell is arrested
while driving with friend Don Bannerman in a van that Driskell
once owned.
* DECEMBER 1990: The Crown authorizes
protection for two key prosecution witnesses -- Reath (Ray) Zanidean
and John Gumieny. Both men are moved into safe houses and provided
with living expenses.
* APRIL 1991: Manitoba Justice agrees
to pay Reath Zanidean $7,100 to compensate him for losing his
house and promises to move him out of Manitoba after Driskell's
trial.
* JUNE 3, 1991: Driskell's trial begins.
* JUNE 11, 1991: Zanidean testifies against
Driskell. During cross-examination, Zanidean admits he is getting
room and board while he is being protected during the trial,
but denies getting any other compensation.
* JUNE 14, 1991: After two days of deliberations,
a four-man, eight-woman jury returns a guilty verdict. Driskell
is sentenced to life in prison with no chance of parole for 25
years.
* DEC. 16, 1991: Zanidean receives final
payment of $20,000 from Manitoba Justice. In all, the Crown would
pay Zanidean more than $80,000 in exchange for his testimony.
These details were never disclosed to the defence.
* JAN. 16, 1992: Saskatchewan Justice
writes to Bruce Miller, head of Manitoba Justice prosecutions
branch, alerting him that Winnipeg police promised Zanidean immunity
for a Swift Current arson without authorization. Saskatchewan
officials indicate Zanidean committed perjury while testifying
against Driskell and urge Miller to disclose the evidence to
Driskell's lawyers at the earliest opportunity.
* DECEMBER 1992: Manitoba Court of Appeal
denies Driskell's appeal for a new trial. Manitoba Justice failed
to disclose the Saskatchewan materials to Driskell or his lawyers,
despite having received the materials 10 months earlier.
* MARCH 15, 1993: Justice Minister Jim
McCrae announces he has called for a review of the Driskell case
because of media reports questioning the conviction. The next
day, George Dangerfield, the trial prosecutor, prepares a memo
on the Driskell case in which he dismisses criticism of the prosecution
and claims all relevant evidence was disclosed to the defence.
* DECEMBER 2002: Following the involvement
of the Association in Defence of the Wrongly Convicted, Manitoba
Justice agrees to perform DNA tests on hair evidence used at
Driskell 's trial. The Crown claimed the hairs, found in a van
that once belonged to Driskell, were from the victim Harder.
The DNA tests show that the three hairs used at trial did not
come from Harder. Manitoba Justice agrees to open its files to
AIDWYC.
* MARCH 2003: A Free Press investigation
reveals for the first time that the Crown withheld details of
payments to witnesses Zanidean and Gumieny. The stories also
confirm that Winnipeg police had evidence that Zanidean tried
to recant his testimony days after the trial.
* NOVEMBER 2003: Based on this new evidence
and the DNA results, AIDWYC lawyers ask a court to release Driskell
on bail, arguing it would be unconstitutional to keep him in
prison with overwhelming evidence he did not get a fair trial.
Manitoba Justice argues that Driskell is guilty and should be
kept in prison. Manitoba Court of Queen's Bench Justice John
Scurfield releases Driskell because of clear evidence he did
not receive a fair trial.
* DECEMBER 2004: A new body of evidence
is uncovered from Manitoba Justice that shows the witness Zanidean
received money prior to testifying and yet lied while under oath
about being paid anything for his testimony.
* MARCH 3, 2005: Driskell becomes a free
man when then-federal justice minister Irwin Cotler quashes his
1991 murder conviction. Manitoba Justice announces a stay of
proceedings but will not concede Driskell is innocent or even
that he was wrongly convicted.
McCloskey
smiled. "Don't worry about that," he growled in his
trademark, hard-gravel timbre. "There's a long, grey line
waiting to get up on that board."
The celebration continued under a large,
white tent in the sprawling backyard at McCloskey's Princeton
home. There were laughs and hugs and pats on the back. There
were ovations for the lawyers and investigators who fought through
the darker recesses of the justice system and found freedom for
their clients on the other side.
But for every belly laugh and burst of
clapping, there were tears and trembling voices for the mothers
and fathers who died or were incapacitated while their sons languished
in prison. There were apologies to alienated children and grandchildren,
neglected wives and forgotten friends.
When it was Driskell's time to speak,
he expressed his astonishment at the magnitude of the ordeal
suffered by the others who had been exonerated. Driskell's 15
years behind bars paled in comparison to the sentences served
by the other former prisoners in attendance. Well-known for wearing
a leather baseball cap everywhere he goes, Driskell said he wanted
to "tip my hat to what you guys have gone through, and how
you've come out of it." He tipped his baseball cap to the
audience.
"This was a real eye-opener for
me," Driskell said a short time later. "I've been able
to look at these guys and see what they've been through. It helps
me to figure out what I've been through."
Driskell is not entirely finished with
his ordeal. A judicial inquiry that will examine certain aspects
of his case begins tomorrow. For the next three months, some
of Manitoba's most prominent police and prosecutors will find
themselves in the witness box, where they will be asked to explain
their roles in a case former federal justice minister Irwin Cotler,
who quashed Driskell's conviction, deemed a classic case of wrongful
conviction.
The original case used to convict Driskell
has fallen apart -- hair evidence has been eliminated thanks
to DNA testing, the star witnesses have been discredited and
police and prosecutors involved in the case are facing allegations
they failed to disclose evidence that could have helped free
Driskell. A preliminary review by a former provincial court judge
concluded that although he was unable to find wilful misconduct
because Crown records were incomplete, the failure of one or
more prosecutors to disclose evidence amounted to "gross
negligence bordering on the criminal offence of obstruction of
justice."
For his part, Driskell said he goes into
the inquiry with no fear about what may be revealed. Despite
the fact he may face new allegations, he said he will be satisfied
that the people responsible for his original conviction will
have to account for their behaviour.
"I have always said through this that my life was an open
book and now it looks like these other people will have to do
the same thing."
Perry Dean Harder's badly decomposed
body was found Sept. 30, 1990, in a shallow grave along railway
tracks near Brookside Boulevard on Winnipeg's northwest side.
He had been shot in the chest with a .22-calibre gun.
In many ways, it was hardly a shock that
Harder met a violent death. A compulsive career thief, he was
a deeply depressed, socially awkward man who some believed was
a police informant. His drive to steal meant that no one -- neither
family nor friend -- could rely on him to keep his hands to himself.
His relationships with a number of girlfriends were emotional
disasters.
Within hours of Harder's body being identified,
Winnipeg police settled on Jim Driskell as the principal suspect.
Checking internal police records, detectives learned that Harder
had been busted a year earlier for stealing auto parts and had
provided police with statements implicating Driskell as his accomplice.
Driskell had denied any involvement in
the stolen goods case. Ultimately, Harder had told his lawyer
he was not going to testify against Driskell and was going to
take a plea bargain where he would plead out on a reduced number
of charges. Driskell and his lawyer were aware of Harder's decision,
and that without Harder's testimony in court, the charges would
be dropped.
However, Harder was a no-show at his preliminary hearing. His
absence did not ring any alarm bells; it seemed in keeping with
his generally dysfunctional nature. But when Harder's body was
found just three months later, police quickly theorized that
Driskell had killed Harder to stop him from testifying in the
stolen-goods case.
Police assembled a rogue's gallery of
witnesses implicating Driskell: Convicted rapists, career arsonists,
prostitutes and drug addicts all gave statements which, woven
together, formed a picture of Driskell as an obsessed, violent,
master criminal hell bent on eliminating Harder.
By itself, this image may not have been
enough to convince jurors of Driskell's guilt. However, the Crown's
theory was shored up by science. A van that a star witness claimed
had been used in the crime yielded three hairs that an RCMP forensic
expert, using microscopic comparison technology, identified as
belonging to Harder.
Police and prosecutors had failed to
turn up a witness to the murder, a murder weapon, a confession
of any kind or direct physical evidence putting Driskell at the
scene of the crime. However, the Crown was able to weave the
fractured elements of the case into a single, damning indictment,
and Driskell was convicted of first-degree murder. When former
Ontario Superior Court judge Patrick LeSage convenes the Driskell
inquiry tomorrow, he will hear a much different version of events.
DNA tests on the three hairs found in
the van confirmed that not only did they not belong to Harder,
they were from three different people. As well, new evidence
unearthed years after Driskell's conviction showed that two witnesses
-- Ray Zanidean and John Gumieny -- were paid tens of thousands
of dollars in exchange for their testimony.
Zanidean also received tacit assurances
by Winnipeg police that a pending arson charge in Saskatchewan
would be dropped. Despite this, Zanidean testified under oath
that he had not received any consideration -- monetary or otherwise
-- in exchange for his testimony.
More problematic for police and prosecutors
is new evidence that appears to show that key participants in
the investigation and prosecution had evidence that could have
aided Driskell's claims of innocence, and failed to disclose
it.
This evidence convinced Manitoba Court
of Queen's Bench Judge John Scurfield to release Driskell on
bail in November 2003 pending the results of a federal government
review of his case. It was only the second time in Canadian legal
history a convicted murderer had been released from prison based
on the strength of new evidence. "I am satisfied that if
all of the new evidence had been presented to the Court of Appeal
following the original trial, the conviction would probably have
been set aside and he would probably have been granted a new
trial," Scurfield said.
In November 2005, Cotler, then federal
justice minister, quashed Driskell's conviction and directed
Manitoba to hold a new trial. That same day, Manitoba Justice
officials released a review by former provincial court judge
John Enns who had been investigating Crown disclosure in the
case.
Enns said "the incompleteness of the Crown file makes it
literally impossible for me to pinpoint the problem." Enns
also noted that he had not been given the powers of subpoena,
and that he could not compel testimony from the main players.
As such, Enns said there was a failure to disclose key evidence,
although he could not say "wilful misconduct" had taken
place.
"By actions, or more precisely by
inaction amounting to gross negligence bordering on the criminal
offence of obstruction of justice, important disclosure did not
take place," Enns wrote. "I can only conclude that
senior Crown officials, either collectively or individually,
failed seriously in their duty to disclose."
Manitoba Justice declined to refile charges
against Driskell, largely due to the fact the Crown's two main
witnesses were now completely discredited. Still, the prosecution
did not concede Driskell was either innocent or wrongly convicted.
Justice officials said there was still evidence tying Driskell
to the Harder killing, but not enough to merit filing new charges.
In a letter to the court explaining why a new trial could not
be held, senior prosecutor Bob Morrison said the decision to
stay the charges should not be interpreted as "a recognition
of factual innocence."
Some view this reluctance to concede
Driskell's innocence as flying in the face of Cotler's analysis.
A renowned human rights lawyer before entering politics, Cotler
said in an interview Driskell was indeed a classic case of wrongful
conviction, and that he had met all the requirements of "legal
innocence."
"In reviewing this file, the only
evidence there was, was itself circumstantial," Cotler said
in an interview. "There were no eyewitnesses, there was
no murder weapon found. Therefore, in effect, you just had...
a Crown theory, and that Crown theory turned out to be utterly
unfounded."
* * *
"An inquiry into certain aspects
of the trial and conviction of James Driskell."
Even the official name of the inquiry
indicates how carefully the justice system is treating the Driskell
case.
The mandate of the inquiry is narrow
and focused, in large part to prevent it from becoming the free-for-all
circus that other reviews such as the Milgaard
inquiry -- now finishing up in Saskatoon after almost two
years -- have become. The inquiry will not, if the mandate is
respected, retry Driskell for the Harder murder. The inquiry
mandate calls for examination of the conduct of prosecutors to
see if their actions "fell below the professional and ethical
standards expected... at the time." The commission will
also try to determine if the Winnipeg Police Service "failed
to disclose material information to the Crown at any time"
that could have "contributed to a likely miscarriage of
justice."
The inquiry will try to determine whether
the actions of any police personnel or prosecutor should be subjected
to "further review or investigation."
In this regard, almost all sides agree
that commissioner Patrick LeSage and commission counsel Michael
Code are the right people for this particular job.
LeSage is a judicial legend, having been
the presiding judge in the trial and conviction of serial rapist
and killer Paul Bernardo. That case serves as a personal link
for LeSage with Code, a well-respected defence lawyer who, as
a senior official in the Ontario Attorney General's office, negotiated
the high-profile plea bargain with Bernardo's wife, Karla Homolka.
Bruce McFarlane, Manitoba's former deputy attorney general, who
was instrumental in getting LeSage and Code to take on the review
of the Driskell case, said the buzzword for the inquiry will
be "focused."
"Other inquiries have been very
unfocused and the results suffered," McFarlane said. "It
will be a focused report and a helpful report, I think."
Despite the narrow focus, McFarlane said
he believes the inquiry will confront key questions that remain
unanswered about this case, questions that must be answered if
the public is to have any faith in the justice system. And for
the all the answers to be questioned, McFarlane said he thinks
Driskell will have to testify.
Driskell did not testify at his 1991
trial. While he has given extensive media interviews, he has
never been subjected to examination in a legal setting, McFarlane
noted. Driskell has not yet been asked to testify at the upcoming
inquiry.
"Mr. Driskell has yet to publicly
testify," he said. "The only observation is that's
going to be an important part of the inquiry, for him to account
for some things. Or to endeavour to account for some things."
McFarlane said there is no doubt mistakes were made in the Driskell
case. However, it would be wrong to jump to the conclusion that
there was malicious behaviour by any of the prosecutors.
"I do recognize the Canadian justice
system is, a) based on humans, and b) based on human judgment
calls," McFarlane said. "When that is your foundation,
you're going to have mistakes. But I haven't seen any maliciousness
in the system yet.
"I've seen a lot of bad decision-making.
That isn't a crime, but it can lead to wrongful convictions."
Although a witness list has yet to be released, it is expected
the inquiry will lead off with Winnipeg police and RCMP officers
involved in the original investigation and management of two
key Crown witnesses.
Evidence uncovered years after Driskell's
conviction showed that significant sums of money were paid to
witnesses who testified against Driskell. In addition, witness
Ray Zanidean, while under police protection, appears to have
been promised immunity for a pending arson charge in Swift Current
without the full approval of the Saskatchewan justice department.
Lawyer Richard Wolson, who has been retained
by the Winnipeg Police Association to represent investigating
officers at the inquiry, said he does not believe there is any
need to take the inquiry into a discussion about who killed Perry
Dean Harder. However, Wolson said he will be looking closely
at the positions put forward by Driskell's counsel, who may try
to take the inquiry in that direction.
Wolson said his clients -- the principal
investigators and the officers who managed Crown witnesses --
will argue they made decisions and came to conclusions based
on the best professional standards and information available
to them at that time.
"From my perspective, this inquiry
is about whether or not there was an injustice," Wolson
said. "If there was, what was the cause of it? And, quite
frankly, how can we learn from it?"
Although there are expected to be several
dozen witnesses, a good deal of the attention will be focused
on the testimony of two key players: Winnipeg
Police Chief Jack Ewatski and Crown attorney George Dangerfield.
Ewatski's career touched on all stages of the Driskell case.
In 1993, he was called upon, with Insp. Bob Hall, to conduct
an internal police review of the Harder murder investigation.
This review has been identified as a key issue in the miscarriage
of justice. Later, as chief, Ewatski turned back numerous requests
to release the report. He told the Free Press in a 2000
interview there was absolutely nothing in the report that
would help Jim Driskell.
However, both the Manitoba Court of Queen's
Bench and the federal Justice Department felt the Ewatski-Hall
report contained new evidence relevant to Driskell's claims of
innocence.
Ewatski would not comment on the specifics of Cotler's decision
to quash the Driskell conviction. A statement issued by the Winnipeg
Police Service said it "accepts and respects the decisions
announced today by both the federal and provincial justice ministers."
The service also supported the view of Manitoba Justice that
the stay of proceedings "is not a recognition of factual
innocence."
Dangerfield, as lead prosecutor at Driskell's
trial, will face many questions from commission counsel about
his management of the Driskell case, In particular, he will be
asked why the crown failed to disclose to Driskell's lawyers
concerns expressed by Saskatchewan Justice, after Driskell's
conviction, that Winnipeg police had offered Zanidean, a key
witness, an unauthorized immunity deal. Zanidean testified in
court he had not received immunity for any pending charges.
Dangerfield's lawyer, Jay Prober, said he expects the Driskell
inquiry to be a fair and effective forum that will likely bring
greater understanding of the events surrounding the original
murder investigation.
Prober said the Enns' review suffered
from a lack of documentation, a problem that will not face the
Driskell inquiry.
"Judge Enns purported to make findings
when he didn't have all the information in front of him,"
Prober said. "I expect the inquiry will be very thorough
and all the information will come out. And I think the (LeSage)
will reach much different conclusions than Judge Enns."
Toronto lawyer James Lockyer and Winnipeg
colleague Alan Libman, both of the Association in Defence of
the Wrongly Convicted, will represent Driskell at the inquiry.
Lockyer said in an interview he hopes the main outcome is an
admission by the justice system that Driskell is factually innocent.
Lockyer said although that is not part
of the inquiry's mandate, he is confident Manitoba will be forced
to make this admission once all the details of the case come
out at the inquiry. "I think there will be an acknowledgment
of Jim Driskell's innocence," said Lockyer. "That's
something we hope comes as a result of the commission, not from
the commissioner directly. There needs to be an acknowledgment
from the government of Manitoba that Driskell did not kill Perry
Dean Harder."
dan.lett@freepress.mb.ca
The inquiry's assignment
THE scope of the commission's mandate
is set by order-in-council No. 479/2005 and it is:
* To examine the conduct of Crown counsel and consider whether
the conduct fell below the professional and ethical standards
expected of prosecutors at the time.
* To inquire whether the Winnipeg police failed to disclose material
information to the Crown at any time and if it contributed to
a likely miscarriage of justice.
* To give advice about whether the conduct of Crown counsel or
police should be referred to an appropriate body for further
review or investigation.
* To consider the role of the RCMP laboratory.
* Examine any systemic issues that may arise out of its role.
* Give advice about whether any aspect of this case should be
further studied, reviewed or investigated, and if so, by whom.
* Advise about whether and in what way a determination or declaration
of wrongful conviction can be made in cases like this.
* Make systemic recommendations arising out of the facts of the
case that the commissioner considers appropriate.
Key players in the Driskell
murder case
|
George Dangerfield
Now in private practice, Dangerfield
was for many years the senior prosecutor in the Crown attorney's
office. Dangerfield was criticized by former Supreme Court justice
Peter Cory in the Thomas Sophonow inquiry for his role in the
prosecution's failure to disclose key evidence to Sophonow's
lawyer.
|
 |
Bruce Miller
During the Driskell case, Miller was
director of public prosecutions. Five months after Driskell's
conviction, he was given new evidence by Saskatchewan attacking
the credibility of a star Crown witness. While there seems to
have been a consensus the evidence should be disclosed, it was
never provided to Driskell's lawyer.
Miller died last year after a long battle with cancer. At the
time, he was associate chief judge of the provincial court. His
estate will have legal representation at the Driskell inquiry
Stuart Whitley
As assistant deputy minister of justice
in 1992, Whitley was one of the Justice Department's most senior
officials and formed a critical link between the prosecutions
branch and the highest levels of the department, the minister
and deputy minister. Whitley was aware of the Saskatchewan materials.
The inquiry will examine what role if any he played in the failure
to disclose it.
Whitley, who has published two novels, is currently a senior
counsel with the federal Justice Department in Vancouver.
Jack Ewatski
Now chief of the Winnipeg Police Service,
Ewatski was asked in 1992 by former chief Dale Henry to conduct
a review of the Driskell investigation after news media raised
concerns Driskell was wrongly convicted. His 175-page report
remained confidential until late 2003, when a Winnipeg judge
ordered it released to the public.
Both the Manitoba Court of Queen's Bench and federal Justice
Department found the report contains new evidence on the case
that helped Driskell's claims of innocence. Ewatski does not
agree and maintains it contanied no new evidence that would help
Driskell prove his innocence.
Greg Brodsky
A prominent defence lawyer who represented
Driskell at his murder trial, Brodsky maintains he was never
told about new evidence from Saskatchewan, even though it was
provided to Manitoba Justice months before his appeal. To this
day, Brodsky believes Driskell was wrongly convicted.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell