Joyce Milgaard will have her expenses paid to attend the inquiry into the wrongful conviction of her son, David Milgaard, if she attends in his place, but the inquiry will not fund a second lawyer to represent her at the inquiry, which begins Monday in Saskatoon.
Inquiry commissioner Justice Edward McCallum released his decisions Wednesday on the two requests from Joyce Milgaard, whose 20-year fight to free her son from prison and secure his exoneration led to the inquiry.
McCallum wrote that he would not ordinarily have granted Joyce Milgaard, who is a party with standing and funded counsel, more funding to cover travel, hotel accommodations and $50 per day meal allowance to attend the hearings. David Milgaard, the subject of the wrongful conviction, would be "in a different class," and would be eligible for such funding.
McCallum agreed to grant Joyce funding if she stands in as a surrogate for David, who has said he does not intend to come.
"This inquiry will follow a much-travelled road through the investigation and prosecution stages, but the reopening stage will take us into areas not covered by the courts or by the RCMP inquiry -- areas concerning which nobody would have greater knowledge than Joyce Milgaard," McCallum wrote.
McCallum refused a request from Joyce's lawyer, James Lockyer, for the inquiry to provide her with a stipend for attending.
Lockyer had also asked to have his associate, Joanne McLean, funded to attend all of the hearing, not just the days when he is absent, which is the normal arrangement with alternate counsel for parties with standing.
In refusing to fund a second lawyer to work with Lockyer, McCallum pointed out that the commission lawyer is responsible for presenting all the evidence and he has a team to help him. The process is not adversarial so lawyers for parties with standing need only be concerned about the part of the evidence which involves the clients' interests.
The commission will also meet today to hear an application for standing and funding for Larry Fisher, who was later convicted of the same crime for which Milgaard was wrongfully convicted.
The lifeless body of 20-year-old nursing assistant Gail Miller raised a lot of questions when it was discovered in a Saskatoon alley. Many of the answers have been found in the decades since that frigid January morning in 1969, when an icy fog hung over the Prairie city.
Nursing assistant Gail Miller is found dead in an alley, stabbed fourteen times with a paring knife
Who killed her? Larry Fisher has been convicted, sentenced to life in prison and denied all appeals. Why did he do it? He was a serial rapist, attacking other women around Saskatoon.
But some of the most troubling issues surrounding Ms. Miller's death have never been fully explained. Why was 16-year-old David Milgaard wrongfully convicted? Why was he kept in prison for 23 years despite all the evidence that he didn't belong there?
Lawyers will start addressing those questions today, as a 12-month Commission of Inquiry revisits the infamous case.
Cecil Rosner, co-author of the 1991 book When Justice Fails: The David Milgaard Story, said he will be especially interested to hear the final months of testimony, which are expected to address the evidence of Larry Fisher's guilt that somehow got overlooked or ignored during the investigation and prosecution of David Milgaard.
"Who said what? What documents were generated at the time?" Mr. Rosner said. "How is it that we could have convicted somebody else when this other pattern obviously fits?"
Mr. Rosner added: "You would have thought it would have been very clear to either police, or prosecutors, or people in the Justice Department at the time. For me, that's going to be very interesting, to see how those people answer those types of questions."
Hersh Wolch, Mr. Milgaard's lawyer at the hearings, said he will be looking for similar answers.
"It's worth providing answers about how an innocent man was found guilty while the guilty man went free," he said. "And it was so difficult to reopen this case, and why was that? How can that be changed in the future?"
Mr. Milgaard is expected to testify, but Mr. Wolch said he doesn't expect him to attend most of the inquiry. Now 52 years old, Mr. Milgaard has received an apology and $10-million compensation from the Saskatchewan government.
"He squandered 23 years of his life in prison, and he's not going to spend another year reliving the horror," Mr. Wolch said.
Mr. Milgaard's nightmare started soon after Ms. Miller was found raped and partly clothed on Jan. 31, 1969. She had been stabbed 14 times in the body and her throat slashed 15 times. Mr. Milgaard was passing through Saskatoon with two friends at the time, and suspicion fell on him when another friend told police he had seen blood on Mr. Milgaard's clothes.
Police found semen at the scene, but DNA evidence didn't exist at the time. Precisely one year after the discovery of Ms. Miller's body, Mr. Milgaard was convicted and sentenced to life in prison.
Serial rapist and RCMP snitch Larry Fisher sentenced to life
Mr. Milgaard protested his innocence, but his appeals were denied. He escaped twice, and was shot in the back when he was captured the second time.
In 1991, media reports suggesting that Mr. Fisher was the killer prompted then federal justice minister Kim Campbell to request a Supreme Court review of the case. Mr. Milgaard's conviction was overturned the next year, and he was set free.
DNA tests later proved that the semen at the crime scene didn't belong to Mr. Milgaard. A jury found Mr. Fisher guilty of the crime in 1999.
The spectre of conspiracy that has hung over the Saskatchewan justice system since the exoneration of David Milgaard in 1997 will face the bright light of a year-long judicial inquiry that some hope will change the way Canada deals with claims of wrongful convictions.
The commission of inquiry that begins Monday in Saskatoon won't simply revisit the much-travelled path through the facts of the 1969 rape and murder of nursing assistant Gail Miller and the prosecution of Milgaard, who was a teenager at the time. For the first time, a full hearing will be given to concerns raised since the late 1980s by Milgaard and his advocates.
They say police and prosecutors never acted on information that could have proven Milgaard's innocence and prevented him from spending 23 years in prison.
The inquiry is scheduled to sit for 140 days during the next 12 months. Ten parties have standing, including retired police detective Eddie Karst, retired prosecutors T.D.R. Caldwell and Serge Kujawa, and Larry Fisher, who was convicted of the same crime in 1999.
"We have issues of responsibility for David's wrongful conviction and above all, we need accountability for (it). . . . The history of wrongful convictions is there is no accountability. Maybe this will be the first time," said Toronto lawyer James Lockyer, a founding member of the Association in Defence of the Wrongly Convicted, who will represent David's mother, Joyce Milgaard, at the inquiry.
"Maybe it will be seen that this proceeding was so egregious against David and the consequences were so awful that, finally, for the first time, our system may say, 'Who's responsible for this? And what are we going to do about them having done it?' " Lockyer said earlier this week in Saskatoon.
Joyce Milgaard, who has largely become the public voice for David, has long protested the way police and prosecutors handled Fisher's confession in late 1970 to committing four violent rapes in Saskatoon in the months before and after Miller's death.
Fisher admitted the crimes after he was arrested in Winnipeg in September 1970, eight months after Milgaard was convicted of murder. Karst, the Saskatoon homicide detective who had investigated Miller's death, went to Winnipeg and interviewed Fisher. His notes from that meeting have since disappeared.
In January 1971 the Saskatchewan Court of Appeal dismissed Milgaard's appeal application and in November of that year, the Supreme Court did the same.
One month later Fisher was taken to Regina, where he pleaded guilty in Court of Queen's Bench to three charges in connection with the Saskatoon assaults. Fisher's Saskatoon victims were never notified that their attacker was behind bars.
Lockyer, who has been involved as an advocate in more than a dozen cases of wrongful conviction, hopes commissioner Justice Edward MacCallum will make recommendations to take reviews of possible wrongful convictions out of the hands of elected federal justice ministers and give them to an independent tribunal or review commission, whose recommendations should be binding on government.
"If we'd had that, David could have been out years and years ago," Joyce Milgaard said.
"The present system is a political, executive decision on the minister's part. He takes the advice of his bureaucracy who purport to examine the case," Lockyer said.
"It's a process that simply doesn't uncover wrongful convictions. David's case is such a striking example of that that it's a very good springboard for changing the system so people who are now sitting in jail for crimes they didn't commit have some hope in the future."
Joyce Milgaard adds that prosecutors should work in teams that include an advocate for the accused, and that the individuals should switch roles as a case progresses to maintain impartiality.
"So often what happens is tunnel vision."
Saskatchewan Justice Minister Frank Quennell said this week he doesn't know if the provincial government will follow recommendations which may result from the inquiry.
"I can't prejudge the results of the inquiry. We've had inquiries in the past which I could not have predicted the results. We know we will have a thorough, independent investigation of all the circumstances, from the investigation of Gail Miller's death and the conviction of David Milgaard forward. That has not taken place before," he said.
"There have been investigations by the RCMP and an inquiry of sorts by the Supreme Court, but there has not been a comprehensive public inquiry into this matter. Now there will be."
(CP) - The passage of time has done little to push Gail Miller's murder from the headlines.
It was 36 years ago that the 20-year-old nurse's aide was found raped and stabbed to death in a back alley on a cold January morning in Saskatoon. It has been almost as long since an innocent David Milgaard was wrongly imprisoned for the crime. Countless news stories, a handful of books and even a TV movie have documented the twists and turns the case has taken in that time.
On Monday a public inquiry will begin to review it all, marking the final chapter in one of the biggest miscarriages of justice in modern Canadian history.
"I think it will be definitive," said Hersh Wolch, the lawyer representing Milgaard at the hearings.
"There's a lot that has never been examined. What went wrong and how do we prevent this kind of thing from happening in the future?
"There is no grey area here. We know David is innocent, so it can't be evasive or equivocal on those issues."
Miller's murder shocked people in Saskatoon in January 1969. There had only been one murder in the city in the previous two years and pressure on police to solve the crime was intense.
Autopsy reports show Miller had 14 stab wounds to her body and 15 slash marks on her neck. A paring knife with the handle broken off was found beneath her face-down body. Her belongings were strewn around the neighbourhood.
Milgaard - a 16-year-old hippie who was spending his youth experimenting with drugs and free love - was in the wrong place at the wrong time.
On a road trip from Regina to Alberta with his two friends - Nichol John and Ron Wilson - he was passing through Saskatoon as the murder took place. The group stopped to pick up another friend, Albert Cadrain, who lived a block and a half from where Miller's body was found.
It was Cadrain who directed police to Milgaard. A month after the crime he came forward saying Milgaard had blood on his clothing when he arrived at the home.
After hours of interviews with police over a period of weeks, Wilson and John eventually implicated their friend as well.
Wilson said he, too, saw blood on Milgaard - something he would recant years later - and John said she saw Milgaard stab a woman while their car was stuck in an alley - something she has never publicly repeated.
The killer left semen at the crime scene, but DNA was not used in the justice system then and the evidence was loosely linked to Milgaard through blood type.
Milgaard was convicted of first-degree murder in 1970. His appeals were denied.
He spent 23 years in prison proclaiming his innocence, while his mother, Joyce, worked hard to free him.
Over the years, Joyce Milgaard and her lawyers were able to cast suspicion on another man, Larry Fisher - a serial rapist convicted of attacking six other women in the same area of Saskatoon and who lived in the basement of the Cadrain house.
In 1991 the information led the federal justice minister of the day, Kim Campbell, to refer Milgaard's conviction to the Supreme Court. The high court threw it out and the Saskatchewan government stayed charges against him.
But it wasn't until 1997 that DNA cleared Milgaard and pointed the finger at Fisher.
Milgaard was paid $10 million in compensation by the Saskatchewan government and Fisher was convicted of Miller's murder in 1999.
This inquiry, headed by Alberta Justice Edward MacCallum, was finally called last February. MacCallum will not be able to place blame but he can make recommendations to ensure similar mistakes don't happen again.
Preparing for the inquiry has been a mammoth task.
Some witnesses have died - including Albert Cadrain, who was mistaken for a bear and shot by a hunter while tending to marijuana fields in British Columbia in 1995.
Inquiry staff have compiled more than 300,000 documents for use at the hearings, many of them already public but some that will be seen for the first time.
"There's been a lot of work," said Doug Hodson, the lawyer co-ordinating the inquiry. "We have notes and transcripts of interviews that were done 10, 15, 20 years ago."
Ten parties have standing at the inquiry, including the Saskatoon police and the provincial Justice Department.
Hearings have been scheduled for the next year and witnesses will testify in four phases.
The first will rebuild the Miller murder, the investigation and David Milgaard's trial, while the second will look at post-conviction information and how the case was reopened.
The third phase will focus on how police and the Justice Department handled information that came out post-conviction, while the final phase will examine systemic issues - reasons why the system allowed Milgaard's wrongful conviction to happen.
"This is really the first opportunity for a full-scale examination of the post-conviction process or lack of process depending on how you look at it," said James Lockyer, the lawyer representing Joyce Milgaard at the hearings and a prominent crusader for the wrongfully convicted.
"It's such a ghastly case and for that reason alone - as a matter of conscience - the country has to see it examined top to bottom to see what went wrong and how we can make sure it doesn't happen again."
There could be several high-profile witnesses, though inquiry staff say they haven't decided who will be subpoenaed.
Former Saskatchewan premier Roy Romanow was attorney general in the 1970s. Milgaard's family has alleged his department knew Fisher was a possible suspect and tried to cover it up, though he was cleared of any wrongdoing by an RCMP investigation in 1994.
Campbell and former prime minister Brian Mulroney could testify, since both had interactions with Joyce Milgaard as she tried to get her son's case reopened.
Milgaard himself will probably testify, but Wolch said he won't attend the rest of the hearings.
"To be honest, I think he is paying little attention to it," Wolch said. "He wants it to stand as help so that these things don't happen in the future, but he certainly doesn't want to be involved."
Jan. 31, 1969: Nursing assistant Gail Miller's partially clad body is found in a snowy Saskatoon alley. She has been raped and stabbed to death. On same day Milgaard and two friends are passing through the city while on a road trip.
May 30, 1969: Milgaard turns himself in to police in Prince George, B.C., after getting word he is being linked to the case. He is charged with murder.
Jan. 31, 1970: Milgaard is convicted and sentenced to life in prison. Subsequent appeals are denied.
1973: Milgaard escapes from Dorchester Penitentiary in New Brunswick. Is later captured.
1980: Milgaard does not return to prison after being released on a day pass. He is captured 77 days later. In the process he is shot in the back.
Nov. 29, 1991: Federal Justice Minister Kim Campbell directs Supreme Court of Canada to review Milgaard's conviction after being presented with evidence that another man, Larry Fisher, may have killed Miller.
Jan. 21, 1992: Milgaard testifies to his innocence as Supreme Court begins its review. A month later he doesn't return to his Ottawa halfway house and is put back in prison.
April 14, 1992: Supreme Court throws out Milgaard's conviction. He is freed after Saskatchewan government decides not to hold new trial.
July 18, 1997: Milgaard's mother, lawyers release British scientists' DNA tests which show Milgaard's DNA didn't match that found at crime scene. Saskatchewan government apologizes to Milgaard.
July 25, 1997: Fisher is charged with the rape and first-degree murder of Miller.
May 17, 1999: Saskatchewan government announces $10-million compensation package for Milgaard and his family.
Oct. 12, 1999: Fisher's trial begins in Yorkton, Sask., after his lawyer argues to have case moved from Saskatoon to avoid potential bias among jurors.
Nov. 22, 1999: Jury finds Fisher guilty.
Jan. 4, 2000: Fisher sentenced to life in prison. Judge leaves decision on parole eligibility to National Parole Board.
Sept. 29, 2003: Saskatchewan Court of Appeal denies Fisher's bid for a new trial.
Feb. 20, 2004: Public inquiry is formally launched to commence after Fisher's appeal to the Supreme Court.
Aug. 26, 2004: Supreme Court refuses to hear Fisher's appeal.
Gail Miller: A 20-year-old nurse's aide. Her body found the morning of Jan. 31, 1969. Raped and stabbed to death.
David Milgaard: A 16-year-old hippie on road trip with two friends. Passed through Saskatoon the morning Miller was murdered. Convicted of first-degree murder in 1970 and spent 23 years in prison. Conviction overturned in 1992. Cleared by DNA evidence in 1997. Now 52. Has standing at the inquiry.
Larry Fisher: A serial rapist. Lived with his wife in basement apartment of the Saskatoon home where Milgaard picked up a friend the morning Miller was murdered. Convicted of Miller's murder in 1999. Currently behind bars. Now 55. Has standing at the inquiry, but that is in question.
Albert Cadrain: Lived less than two blocks from the crime scene. Was picked up by Milgaard and friends the morning Miller was murdered. Went to police a month later saying he saw blood on Milgaard's clothes. Years later, admitted feeling pressured by police. Deceased.
Ron Wilson: On the road trip with Milgaard. After numerous interviews with police, said he saw Milgaard with a knife and blood on his clothes. Years later, he recanted. Now 53.
Nichol John (Demyen): Also on the road trip. After numerous interviews with police, said she saw Milgaard stab a woman. But at trial said she could not remember. Prosecutors were allowed to cross-examine her with her statement to police. Now 52.
Craig Melnyk and George Lapchuck: Came forward in the middle of Milgaard's trial to say they saw Milgaard re-enact the murder with a pillow in a motel room in May 1969. Melnyk is now 52. Lapchuck is deceased.
Deborah Hall: Also in the motel room, but didn't testify at Milgaard's trial. Years later she swore Milgaard's re-enactment was little more than a crude joke. Now 52.
Eddie Karst: One of the lead detectives on the case for Saskatoon city police. Has standing at the inquiry.
T.D.R. "Bobs" Caldwell: Crown prosecutor at Milgaard's original trial. Has standing at the inquiry.
Serge Kujawa: Director of public prosecutions during original trial. Was accused by Milgaard's supporters of trying to hide Fisher's possible involvement in the murder. Was cleared of any wrongdoing by an RCMP investigation. Has standing at the inquiry.
Cal Tallis: Milgaard's original lawyer. Didn't call Milgaard to testify at trial. Now sits as a justice on the Saskatchewan Court of Appeal.