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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page five

Inquiry gets lesson in witness manipulation

The Milgaard inquiry got a lesson Monday on what it takes to get an impressionable, 16-year-old girl to say what police want her to say.

Nichol JohnThe witness was Nichol John, David Milgaard's travelling companion on that terrible day in 1969 when Gail Miller was sexually assaulted and murdered. Milgaard was wrongfully convicted and served 23 years in prison before being exonerated by DNA evidence.

John, now 52 and living in British Columbia, was the key witness implicating Milgaard. But not at first. Her story evolved as police pressure intensified. After five separate interviews and an undeserved night in jail, she was finally transformed from a credible alibi witness who vindicated Milgaard to an eyewitness to him committing murder. That this could not possibly be true was revealed years later when DNA evidence implicated serial rapist Larry Fisher.

Not quite three months after the murder, in her first interview with Saskatoon police, John offered what now appears to be the truth. In a signed statement taken at her home in Regina, she said she was with Milgaard for all but a minute or two around the time the crime was committed. Police regarded her as credible. They further believed that this meant Milgaard could not possibly be guilty. With John's alibi evidence, he simply would not have had time to commit the crime.

Less than two weeks later, Saskatoon police interviewed her again, this time at the Regina jail. The police report of that interview says she now regarded Milgaard as dangerous. Otherwise, however, she stuck to her story that excluded Milgaard.

A month later, she was taken back to the Regina jail for a third interview. For a third time, she supported Milgaard's alibi. For a third time, she said she saw no blood on his clothes or hands. This time, however, she reportedly characterized Milgaard as someone capable of rape and murder. The police report says she described him as more of an animal than a human.

John did not sign this report and, today, cannot recall ever saying such a thing.

"I would not have used words like that," she told the inquiry.

This was one of her more revealing statements before the inquiry. She has not been an illuminating witness. She remembers almost nothing from the relevant time. This is not what you'd expect of an eyewitness to murder.

For her fourth police interview, John was brought back to Saskatoon and shown around the crime scene. Still, she stuck to her story: Milgaard couldn't have done it. But now she'd been familiarized with details of the crime. This spoiled forever any prospect for independent recollection. But it would help her with details if she could somehow be convinced to change her story.

An intimidating taste of imprisonment might have convinced her. Although she was not charged or even suspected of any offence, John was made by police to spend the night in jail. She was not there as a guest. Her personal possessions were taken from her. The inventory was entered into evidence at the inquiry. Normal practice would be to put up a witness from out of town in a hotel.

The next day, John was interviewed for a fifth time, this time by a police polygraph expert from Calgary. When she stuck to her story, he repeatedly insisted she was not telling the truth. Unbelievably, he showed her the victim's bloody nurse's dress. What if this had been your sister, he demanded.

Now, finally, she implicated Milgaard. According to a report of that interview, also unsigned, she told the polygraph expert that she'd seen Milgaard stab Gail Miller. Oddly enough, however, John was not asked to take a polygraph. A sixth interview ensued, this time with Saskatoon police. From this emerged a signed statement in which John claimed to have seen Milgaard kill Gail Miller. Thus did Milgaard's alibi witness become his undoing.

In retrospect, John's revised story seems preposterous. She claimed that Milgaard was looking for someone to help push their stuck car when he killed Miller. That he'd murder someone in a public alley with no means of escape seems unlikely in the extreme. It also seems unlikely that John would have willingly remained with a savage killer for the balance of their car trip to Calgary, Edmonton and Regina. She had any number of chances to go her own way.

John, to her credit, did not repeat this improbable -- and, as we now know, false -- account at Milgaard's trial. Rather, she repeatedly insisted that she didn't remember what happened. Nor did she remember giving her damning statement to police. This precluded awkward questions from the defence when the statement was read into evidence. It tipped the scales against Milgaard.

Thirty-five years later, John told the inquiry that she still has no memory of any murder. Neither can she offer any explanation as to why she changed her story.

Inquiry commissioner Mr. Justice Edward MacCallum might not be so generous.


Disguised witness doesn't remember implicating Milgaard

The woman who said she saw David Milgaard stab a woman professed to have almost no memory of that day 36 years ago when she took the witness stand at the Milgaard inquiry Monday.

Wearing a dark wig and dark-framed glasses, Nichol John sat up straight and answered almost every question with the same response; she didn't remember.

She said she didn't remember seeing Milgaard stab a woman and didn't remember telling police she had.

John also denied memory of agreeing with witness Ron Wilson to lie to police and "give them what they want to get David," and to "sink him," as Wilson has said.

John said she didn't remember being pressured or coerced by police to make statements against Milgaard.

Despite John's lack of current memories, she was able to confirm for commission counsel, Doug Hodson, that she did sign various documents, testify at hearings and participate in taped conversations.

In that way, Hodson reviewed John's participation in events that led to 17-year-old Milgaard being wrongfully convicted for the Jan. 31, 1969, murder of Saskatoon nursing assistant Gail Miller and his remaining in prison for 23 years.

Milgaard was released in 1992 after the Supreme Court reviewed the case against him. He was exonerated in 1997 by use of DNA evidence, which was also used to convict serial rapist Larry Fisher of the crime in 1999.

John, who was a 16-year-old hippy who smoked marijuana and used LSD in 1969, first told police on March 11, 1969, that neither Milgaard nor Wilson was out of her sight long enough that morning to have raped and murdered 21-year-old Miller.

On March 18, 1969, police took John to the Regina police station and placed her in a room with Albert Cadrain, who was the first person to say that he saw blood on Milgaard's clothing. Until Cadrain, nobody had said anything to implicate Milgaard.

John came out of the room and said that everything Cadrain said was true.

But at the same time, John maintained Milgaard had not been out of her sight long enough to have committed the crime. Saskatoon police detective Eddy Karst wrote in a report that John was very convincing and that there was no way Milgaard could have been connected to the crime.

Monday, John said that while she didn't remember talking with police on March 18, 1969, she would not have used the words Karst attributed to her in his report, when he wrote that John said Milgaard was "more of an animal nature than you would expect of a human.

"I would never have used words like that," John said Monday.

John was interviewed again on May 22 of that year at the Regina police station and then was taken to Saskatoon. Police took her to the place where Miller's body was found and pointed out other key landmarks in the case.

She spent that night in cells at the Saskatoon police station.

The next day, a Calgary police inspector interviewed her and Wilson. The investigator left John and Wilson alone for a time.

At the Supreme Court hearing in 1992, Wilson testified that it was during that brief meeting that he and John agreed to tell the police what they wanted to hear, according to transcripts entered at the inquiry Monday.

"Let's sink him. Let's give them what they want to get David," Wilson said he said to John that day, according to the transcript.

Later that afternoon when the officer questioned her and showed her Miller's bloodied uniform, John said for the first time that she had seen Milgaard stab the woman.

"My God. I do remember. . . . I didn't remember until I saw the uniform," the officer later said John said.

The next morning John gave a damning 11-page statement to Saskatoon police.

She did not verify the statement at Milgaard's trial, where she said she couldn't remember events of the day in question nor giving the police statement. John is the only witness scheduled for this week. After Hodson finishes questions intended to draw out relevant information, lawyers for 12 parties with standing are entitled to cross examine her.

Complete transcripts and documents are available on commission's website at www.milgaardinquiry.ca.


Witness under hypnosis didn't verify statement

A hypnotist tried in 1991 to help Nichol John recall the morning of Gail Miller's 1969 murder, but John did not verify her one-time statement that she saw David Milgaard commit the crime, the Milgaard inquiry heard Tuesday.

Although John told police on May 23 and 24, 1969, that she saw Milgaard stab a woman in an alley behind a funeral home on 20th Street and Avenue N, she refused to endorse that statement at Milgaard's preliminary hearing or at his trial.

She said then, and ever since, that she does not remember what happened on Jan. 31, 1969, the morning of Miller's death.

Milgaard was convicted of killing Miller and spent 23 years in prison before he was released in 1992, after the case was reviewed by the Supreme Court. DNA was used to exonerate him in 1997 and to convict serial rapist Larry Fisher of the crime in 1999.

The inquiry, which began in January, is looking into the original investigation, the prosecution that led to the wrongful conviction and the actions of justice officials in the years afterward.

On Tuesday, John said she can't be sure of what she saw.

"I have things that flash into my mind but I don't know if they are real," she told an investigator in 1989.

"I don't know if I really saw that or if I, from hearing people. . . . I can't tell if that's what I really saw," she said, according to transcripts entered at the inquiry.

Also on Tuesday, the inquiry watched a video of Vancouver psychologist Dr. Lee Pulos trying to hypnotize John and help her recall what she saw the morning she arrived in Saskatoon with Milgaard and Ron Wilson.

Pulos had John respond to questions by lifting different fingers designated to represent Yes, No and None of your business.

John indicated that her subconscious mind knew what had happened that day. As Pulos questioned her, John began to sob and said, "He's stabbing her. . . . His arm is raised."

She would not say during the session with Pulos who she meant, saying instead that her mind felt like it would explode.

She later said she could see an arm being raised but the person raising his arm had his back to her. "I don't want to know," she said.

"It was like something I had gone through before. It was like I was being strangled," she said through tears and sobs.

John originally told police Milgaard was never out of her sight long enough to have committed the crime. She changed her story after repeated questioning by police, being taken to the scene of the crime by police, being placed alone with other witnesses and being made to spend two nights in police custody.

Joyce Milgaard had tried earlier, in 1981, to convince John to undergo hypnosis to help her remember. Milgaard had offered a $10,000 reward for information that would help clear her son.

She also funded a lawyer to represent John as Joyce Milgaard tried to convince her to tell what had happened the day of the murder and during the police investigation.

Joyce Milgaard also offered to pay for a psychiatrist to hypnotize John but John never showed up for the appointment.

David Milgaard wrote to John twice in the early 1980s, asking for help.

In the first letter, written May 1, 1981, Milgaard wrote, "I am a 28 year old man that still believes in human good and I'm also very tired. I don't know how it's been for you all this time to know that I never killed anyone, but for me it has been murder.

"Regardless of whoever or however things were arranged or rearranged so long ago, the truth will always remain the same. When I saw you on the stand, I said to myself, they must of really screwed you around."

John has said she cannot remember most of the events or details of the period in question. She doesn't remember giving police statements, testifying at Milgaard's preliminary hearing or trial nor most of the subsequent interviews and hearings where she has been questioned about the events of 1969.

She did come up with new information however, in a 1981 interview with Joyce Milgaard and her lawyers.

John said David Milgaard raped her in a Regina hotel room a few days before she went on the road trip with him that took them to Saskatoon.

By the end of that same interview, John had backed off the claim, saying that rape might be "too strong a word" to describe what had happened.

Eight years later, in 1989, John added another allegation about Milgaard, saying he had attempted to rape her again on the trip to Saskatoon.

There has been no evidence at the hearing to suggest John complained to the police about the allegations.


John's hypnosis answered little
First hypnotist reported John's subconscious knew Milgaard killed Miller

The second of two psychologists who tried in 1992 to help Nichol John remember the morning Gail Miller was killed in 1969 gave short shrift to a statement that might have cast light on the police interrogation that resulted in John saying she saw Milgaard stab Miller.

Milgaard was convicted of Miller's murder and spent 23 years in prison for a crime he didn't commit. He was proven innocent by DNA evidence in 1997, which was used to convict serial rapist Larry Fisher of the crime in 1999.

On Wednesday, the judicial inquiry looking into the original death investigation, Milgaard's wrongful conviction and the subsequent actions of justice officials watched a video of John being hypnotized and questioned for the second time.

John, who was 16 in 1969, originally said Milgaard was never out of her sight long enough to have committed the crime on the morning of the murder.

Months later, she changed her story, saying she saw Milgaard stab a woman.

The new statement came after she was repeated interrogated by police, taken to the scene of the crime and allowed to spend time alone with witnesses who were implicating Milgaard.

John refused to verify her statement implicating Milgaard at his preliminary hearing or his trial. She said then, and since, that she cannot remember what happened that morning.

In 1991, at the request of federal justice investigator Eugene Williams, John agreed to be hypnotized in an effort to remember. John had refused a similar request 10 years earlier, by Milgaard's mother, Joyce Milgaard.

The first hypnotist was Lee Pulos, a Vancouver psychologist who was seen in a video viewed Tuesday by the inquiry. When John said she remembered being in an alley and seeing a man raise his arm as he struggled with a woman, Pulos asked if the man was David Milgaard. John did not answer.

John apparently indicated -- by lifting a finger -- that her subconscious mind knew Milgaard had killed Miller.

In a letter to Williams, which was entered at the inquiry Wednesday, Pulos reported that John had said Milgaard repeatedly stabbed the victim. That remark did not seem to reflect what John said in the video.

Other psychologists later criticized Pulos' methods in letters and memos entered at the inquiry.

One such letter, from psychologist Campbell Perry to Williams, touched briefly on the role of police in John's damning statement. Perry said there was no way to determine the truthfulness of what John said during hypnosis, and Pulos had asked "blunt leading questions."

John agreed to be hypnotized again, a few months later, by a Philadelphia psychologist, Martin Orne. That videotaped session was also viewed by the commission Wednesday.

That interview touched briefly on John's experience with the police.

At one point, Orne asked John about the day she made her statement implicating Milgaard. Orne said police had wanted John to sleep in a cell, and that made her uncomfortable. Orne then asked what time of day she made the statement.

John said for the first time on the record that "it took a long time" to give the statement, and that police wanted her to sign every page of it.

Orne said, "But they didn't push you to read the statement."

John agreed they did not.

Orne did not follow up on the veracity of the damning statement. Instead, he asked John how long police drove her around the crime scene. She said it was about two hours in the afternoon.

She said she wanted to take a polygraph test the day she implicated Milgaard, but the polygraph expert refused to test her.

During the session, John also gave a new version of her memory, saying she saw a man in a beige corduroy jacket kneeling astride a prone figure in the snow. She had previously said the man was standing and grabbing a woman's purse from her as she tried to take it back. She had said she saw the man raise his arm but had previously stopped short of saying she saw the stabbing.

John will take the stand again today.


Witness believes she saw Miller murder
Many gaps in memory at Milgaard Inquiry

Nichol John's mother told RCMP in 1993 that David Milgaard had choked Nichol with her jacket hood the morning of Gail Miller's murder and that their travelling companion, Ron Wilson, had slapped her face and told her to be quiet when John screamed, "He killed her. He killed her."

The inquiry looking into Milgaard's wrongful conviction heard the new allegation written in an RCMP report the year after Milgaard was released from prison after serving 23 years for the murder he didn't commit. The Supreme Court had ordered Milgaard's release, but it was 1997 before his innocence was established through DNA evidence, which was later used to convict serial rapist Larry Fisher of the crime.

John has never told the hood choking story in any of the many times she has testified under oath or in any official police interviews nor when she was hypnotized and questioned in 1991 and 1992.

John was the one person who said she saw Milgaard stab Miller. She gave police a statement describing the murder but then refused to verify it in court. She said then and since then that she doesn't remember anything about the events surrounding the day of the murder.

According to the RCMP report, Mary Eva John said she reminded Nichol, after Nichol testified at the Supreme Court in 1992, that the reason Nichol sometimes experienced a choking sensation when she was under stress was because of the hood incident in an alley.

Mary John told RCMP her daughter had told her about the choking incident sometime after Milgaard's 1970 trial.

Nichol John said Thursday she doesn't remember being choked by Milgaard or being slapped by Wilson. Nor does she remember telling her mother that story or her mother bringing it up after the Supreme Court hearing.

Earlier in the day, the inquiry saw John's notoriously poor memory produce new information in the 1993 RCMP interview.

When asked if she remembered another female being in the car the morning of the murder, John said she had had the thought of it over the years. She said it was "a feeling," more than a memory.

Although John has always claimed to have almost no memory of events, she was able to recall her first meeting with Milgaard, waiting at Wilson's house for the boys to fix the car before they set out on the road trip that took them through Saskatoon, the clothes she was wearing that morning and realizing they were approaching Saskatoon that morning because she could see the city lights ahead.

She remembered using the bathroom in the basement of a house when the car got stuck in an alley, remembered Wilson having battery acid on his pants and Milgaard's ripped pants.

She said for the first time that she found a piece of picture identification in a cosmetic bag from the glove compartment of Wilson's car. She had first talked about identification in the bag about 12 years after the event but had never said anything about a photo on it. She said in 1993 that she didn't know whose identification it was.

She had no independent memory of it Thursday.

While some of the details she offered sounded much like evidence that had been put to her in questions over the years, some of it was brand new and spontaneous. She remembered feeling apprehensive when being taken to the Regina police station for questioning, riding in a police car to Saskatoon and the car driving into an underground garage at the Saskatoon police station.

She remembered wearing a new, pink dress her mother had made her buy when she testified at Milgaard's trial.

While John still did not say she saw Milgaard kill Miller, she said she believed she saw the murder.

John said Thursday she still believes she saw the murder because she has so many gaps in her memory.

Commission counsel Doug Hodson questioned John about why she was able to recount no less the 52 new details in 1993 that never came out in previous questionings.

John said it might have been because she was more relaxed during that interview. She attributes her poor memory to traumatic events that have happened in her life.

The inquiry does not sit on Fridays. John will return to the stand on Monday. As many as eight of the lawyers for parties with standing have indicated they may cross-examine her then.

Hearing transcripts and documents entered at the inquiry are available on the commission's website at www.milgaardinquiry.ca.


Police led Milgaard witness: lawyer

What happened to Nichol John during three crucial days in May 1969 that caused her to sign a statement saying she saw David Milgaard murder Gail Miller?

The inquiry into Milgaard's wrongful conviction on Monday listened as James Lockyer, the lawyer for Milgaard's mother, Joyce Milgaard, led John through the many police statements and hearing transcripts that reveal the information disclosed to John and the pressure applied to her before police obtained the statements that helped seal Milgaard's fate.

"Bit by bit, we can squeeze out how police (were) leading 16-year-old Nichol John in the direction they want to take her," Lockyer said.

Milgaard spent 23 years in prison before being released in 1992, after the case was reviewed by the Supreme Court. DNA proved his innocence in 1997 and was used to convict serial rapist Larry Fisher of the crime in 1999.

The inquiry is looking into the 1969 investigation and prosecution and what actions justice officials took in the years after, as new information became known.

On March 11, 1969, the first time John was questioned about a trip she made to Saskatoon with Milgaard and Ron Wilson on the day of the murder, she gave a detailed account of the crime-free, early-morning trip to Saskatoon, where the trio searched for the home of Milgaard's friend, Albert Cadrain.

That statement was never mentioned at Milgaard's trial.

That original story of John's matched the accounts given by Milgaard and Wilson.

It said they got stuck in the snow behind the car of a couple who were stuck in an alley, got help from a tow truck and eventually made it to Cadrain's, where the boys changed clothes.

They all said Wilson had battery acid on his pants and Milgaard's were dirty and ripped. All said they were never out of each other's company long enough for Milgaard to have committed rape and murder. None saw blood on Milgaard's clothes.

Police reports show that over the next eight weeks police repeatedly questioned John, but she insisted nothing had happened to implicate Milgaard in murder.

Yet police reports indicate John was beginning to adopt bits of negative information being presented to her about Milgaard.

On March 18, a week after John's first interview, Saskatoon police went to Regina and took the 16-year-old girl to the Regina men's jail, where they put her in a room with Cadrain. He was the only person implicating Milgaard in the murder, claiming Milgaard had blood on his clothes when he changed at the Cadrain house.

Lockyer said that in 30 years as a lawyer, he has never seen police use such a tactic.

Saskatoon police detective Eddy Karst wrote in a report at the time that John hadn't changed her story but now agreed Milgaard could be capable of such a crime. Karst wrote that John was believable and that her story meant Milgaard couldn't have committed the crime.

Ten weeks later, on May 22, 1969, Saskatoon police detective Raymond Mackie took John from her Regina home to Saskatoon, where he took her to the entrance of the alley where Miller's body was found. That entrance was in front of St. Mary's Cathedral on Ave. O South, which could be the reason John has since recognized the church, Lockyer suggested.

John said she hadn't been in that location on the morning in question.

Thirty years later, when Mackie testified for the defence at Larry Fisher's trial for the Miller murder, Mackie said he took John to the spot to re-establish the route the teens had taken that morning and to "show her where she had been."

John was kept overnight at the Saskatoon police station cells. The next day she was taken to the Sheraton Cavalier Hotel, where she was allowed to talk alone with Wilson before being questioned by a polygraph expert from Calgary.

Documents entered at the inquiry show Wilson has said it was during that meeting he and John agreed they would give police the information they wanted to "sink" Milgaard.

The Calgary polygraph officer also showed John the victim's blood-stained nurse's uniform, which, according to the officer's report of that May 23 interview, resulted in John declaring that she suddenly remembered Milgaard stabbing the nurse.

On John's third day in Saskatoon, May 24, she signed each page of an 11-page statement that included the damning new information.

Lockyer made a point of referring to that statement as "the document you signed on May 24." He pointed out that John has said she tends to skim when she reads and has said that, under pressure, she might well sign anything.

Lockyer suggested and John agreed, that since 1969, numerous investigators and prosecutors have tried to get her to adopt or repeat the claim that she saw Milgaard stab Miller. She never has.

At Milgaard's 1969 preliminary hearing, January 1970 trial and ever since, John has adopted "items on the edge of incriminating" Milgaard but has avoided adopting the "core items" that would have proven definitively that that he did it, Lockyer said. John agreed.

Lockyer led John through seven new items in the May 24 document that were not in her March 11 statement. It alleged Milgaard stole a knife from a grain elevator on the way to Saskatoon. However, the person who worked at the elevator has said no knife was stolen, Lockyer said.

The statement alleged Milgaard talked about snatching a purse in Saskatoon. That point became the basis of the police theory about Milgaard's motivation for attacking Miller, Lockyer said.

The statement alleged Milgaard asked a girl for directions. At Milgaard's trial, John embellished, giving a description of the girl's coat that gave the impression of a nurse's cape. John agreed it didn't make common sense that her memory of the girl's appearance would improve over time.

At the trial, John adopted another new item in the May 24 statement, which said the car got stuck a second time that morning, prior to the incident behind the couple's car. She testified the boys got out of the car and walked away in different directions seeking help.

But John stopped short of endorsing the May 24 claim of seeing Milgaard stab a woman in the alley and place her purse in a garbage can.

John adopted a new item alleging she found a cosmetic case in the glove compartment of Wilson's car and that Milgaard threw it out the window. John agreed Monday it was obvious the Crown prosecutor wanted the jury to believe the cosmetic case belonged to Miller. She said she didn't know the police had already found Miller's cosmetic case and all of her identification.

John agreed that if she really had found a cosmetic case, it wouldn't have belonged to Miller. She agreed with Lockyer's assessment of the fact as, "pretty bizarre."

The damning May 24 statement also included an account of Wilson telling John in Calgary that Milgaard had confessed to murder and that John responded that she already knew about it. John denied remembering that item when questioned about it at Milgaard's trial.

Lockyer suggested that the reason John didn't adopt all the points in the May 24 statement is because "it was a pack of lies," but that John adopted enough of the incriminating points to "keep the authorities happy."

John takes the stand again today.

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