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Robert Sanderson

Faulty analysis sparks call for review of cases

WINNIPEG - Advocates for the wrongly accused are calling on provincial governments to review all criminal cases involving hair evidence after the Manitoba Justice Department released a groundbreaking study that shows flawed hair analysis tainted two murder convictions.

The province launched a review of 39 old murder cases last year after national embarrassment over the case of James Driskell. Mr. Driskell won his freedom after more than 13 years in jail when DNA tests revealed that a forensic hair analysis used to convict him was wrong.

It's the first time any province in Canada has checked old cases for problems with the discredited techniques of hair comparison, lawyers say, and the results could do more than give two people convicted of murder hope for release.

"Our organization is urging other provinces to do this," said James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted. "It's a huge step in the right direction."

But the report sparked outrage among the victims' families in the two cases yesterday.

Christa Zurstegge, 66, said she remains convinced that Robert Stewart Sanderson helped with the killing of her son Stephan Zurstegge, despite the new DNA evidence that eliminates the only forensic link between Mr. Sanderson and the bloody scene where three men were beaten, shot and stabbed to death in 1996.

"I'm telling you, I cannot believe this," Ms. Zurstegge said. "This is unreal. Our system stinks.''

Besides casting doubt on Mr. Sanderson's conviction, the report also raises questions about the guilt of Kyle Unger, who is serving a life sentence for the killing of teenager Brigitte Grenier at a Manitoba music festival in 1990.

Hersh Wolch

The only piece of evidence Mr. Unger couldn't easily explain during his trial was a hair on Ms. Grenier's sweater, said his former lawyer, Hersh Wolch (right).

An RCMP forensic technician testified that the hair belonged to Mr. Unger.

"Kyle has always maintained he didn't do it, and I believed him," Mr. Wolch said.

Both cases will be presented to the federal Justice Department for consideration under Section 696 of the Criminal Code, which allows the federal government to order new trials or refer the cases to a court of appeal, Mr. Lockyer said.

Manitoba will support Mr. Unger's application, said deputy attorney-general Bruce MacFarlane, but the province continues to review the Sanderson case and hasn't formed an opinion.

"This does not mean that Mr. Unger is necessarily innocent," Mr. MacFarlane said. "It's just that we feel the case should be reopened."

Manitoba will also expand its review of old cases, Mr. MacFarlane added, to include any "serious cases" such as sexual assault and robbery from the past 15 years. The review committee is expected to report in one year.

The Unger and Sanderson cases are the third and fourth examples of DNA evidence casting doubt on convictions in Manitoba over the past few years and Mr. Lockyer estimates that 40 or 50 wrongful convictions might be discovered across the country if other provinces begin similar efforts.

Other legal experts agreed that more systematic reviews are necessary. "Wrongful convictions tend to get handled individually, so a broader look is a good idea," said Gary Trotter, a law professor at Queen's University.

Dianne Martin, a professor at Osgoode Hall Law School, said the type of review that Manitoba conducted is rare in North America.

"The very, very few reviews of old convictions that have been done have found significant cases of error," Ms. Martin said. "But Manitoba has put this issue squarely on the table now, and I bet there will be some [provinces] who follow."

Lawyer Greg Brodsky

A spokesman for the Manitoba RCMP said the force wants to review the province's report before commenting in detail.

Greg Brodsky (right), a prominent Winnipeg lawyer who represented Mr. Sanderson and Mr. Driskell, said the province must increase funds to legal aid so that accused people can avoid wrongful conviction.

"The numbers of wrongfully convicted in this province are staggering," Mr. Brodsky said.