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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page nine

Former police chief gives previously unseen documents to Milgaard inquiry

Joe Penkala

SASKATOON (CP) -- The first of a former Saskatoon police chief's personal documents on the David Milgaard case -- some of them with previously unknown information -- were turned over Thursday to the inquiry examining Milgaard's wrongful conviction for murder.

The revelation of the documents that have been held since 1969 by Joseph Penkala demonstrates why disclosure rules are needed to force authorities to hand over information in cases alleging wrongful conviction, said James Lockyer, the lawyer for Milgaard's mother Joyce.

"Penkala didn't have an obligation and he should have had that obligation," said Lockyer. "That's a very important systemic issue at this inquiry."

Penkala was a sergeant who helped investigate the murder of nursing aide Gail Miller, a crime for which Milgaard spent 23 years locked up in prison before he was cleared by DNA evidence.

Penkala later became chief of police and retired in 1991.

Doug Hodson, the lawyer for the commission of inquiry, said Penkala readily co-operated when asked to provide any documents he had on the original investigation, the prosecution and whether the case should have been reopened based on information police and justice officials received after Milgaard's conviction.

Penkala turned over binders containing about 250 pages of information.

Hodson admitted even he had not seen some of the documents before.

While Penkala was not required by law to disclose the documents sooner, it doesn't mean he shouldn't have, Lockyer said in an interview.

It is just one example of information uncovered so far in the inquiry that would have helped Milgaard convince the federal justice minister to review his case between 1988 and 1991, Lockyer said.

"There's all sorts of stuff we're now seeing that was never available to David back in those years," Lockyer said.

Many of the documents now coming out at the inquiry reveal police were correctly convinced Miller's killer was the same person who sexually assaulted three other young women in the months before Miller's rape and murder.

Larry Fisher had confessed to the earlier rapes back in 1970, but it wasn't until 1999 that he was finally convicted in Miller's death.

The first of the Penkala documents submitted as evidence Thursday was an April 6, 1969, letter from a Regina RCMP inspector referring to scientific analysis of body fluid substances from those previous rape victims. A note typed at the top of the letter states: "No copies elsewhere."

Lockyer said the documents were never disclosed to Milgaard's defence team when it argued before the Supreme Court of Canada that the Miller murder and Fisher rapes were connected.

Even as the prosecution denied there was a connection, the police had made that very tie-in to the extent of having forensic comparisons made back in 1969, he pointed out.

"The extent to which it was taking place was unknown to us until this week," he said. "This kind of disclosure should have been made instantly by the Department of Justice as soon as David put in his application in 1988 . . . It should be an open box policy when someone makes what appears to be a legitimate claim of wrongful conviction. The forensic reports that have now come up would have been extremely handy back in those years."

Although the Penkala letter has been presented as evidence, no witnesses have yet commented upon its significance. Penkala is expected to testify in June, at which point lawyers representing the 12 parties with standing are entitled to question him about the document collection.

The inquiry resumes Monday with testimony from Larry Fisher's rape victims. After that, the inquiry will shift its focus to the police investigators.


Penkala submits Miller papers
Former police chief gives own files to inquiry

Gail Miller

Former Saskatoon police chief Joseph Penkala only recently turned over to the Milgaard inquiry his personal collection of documents -- two binders containing 200 to 300 pages of information about the 1969 murder of Gail Miller (right) and related matters.

The revelation of the long-held documents is an example of why disclosure rules are needed to force authorities to hand over information in cases alleging wrongful conviction, lawyer James Lockyer says. "Penkala didn't have an obligation and he should have had that obligation. That's a very important systemic issue at this inquiry."

Penkala was a sergeant who helped investigate the Miller murder. He later became chief of police and retired in 1991.

David Milgaard was wrongfully convicted of the murder and spent 23 years in prison before being released in 1992. DNA evidence was used to convict serial rapist Larry Fisher of the crime in 1999.

Commission counsel Doug Hodson told the inquiry Penkala co-operated when asked to provide any documents he had related to the mandate of the commission of inquiry, which is looking into the original investigation, the prosecution and whether the case should have been reopened based on information police and justice officials received after the conviction.

Penkala turned over two binders which contained documents, notes and newspaper clippings, including some documents Hodson said he had not been seen before.

Hodson entered the first of the Penkala documents as evidence at the inquiry Thursday. It was an April 6, 1969, letter from a Regina RCMP inspector referring to scientific analysis of body fluid substances from other women who had been sexually assaulted in Saskatoon in the months before Miller's death. A note typed at the top of the letter states, "no copies elsewhere."

Although the letter has been presented as evidence, no witnesses have yet commented upon its significance. Penkala is expected to testify in June, at which point lawyers representing the 12 parties with standing are entitled to question him about the document collection.

While Penkala was not required by law to disclose the documents sooner, it doesn't mean he shouldn't have, Lockyer said in an interview Thursday.

The document cache shows how the law has unfairly allowed individuals to hold back information that could help undo wrongful convictions, said Lockyer, who represents David Milgaard's mother, Joyce Milgaard.

It is just one example of information uncovered so far in the inquiry that would have helped Milgaard convince the federal justice minister to review his case between 1988 and 1991, Lockyer said.

"There's all sorts of stuff we're now seeing that was never available to David back in those years," Lockyer said.

Many of the documents now coming out at the inquiry reveal police were correctly convinced Miller's killer was the same person who sexually assaulted three other young women in the months before Miller's rape and murder.

Those documents were never disclosed to Milgaard's defence team when it argued before the Supreme Court of Canada that the Miller murder and Fisher rapes were connected, Lockyer said.

Even as the prosecution denied there was a connection, "the police had made that very tie-in to the extent of having forensic comparisons made back in 1969," he said.

"The extent to which it was taking place was unknown to us until this week."

"This kind of disclosure should have been made instantly by the Department of Justice as soon as David put in his application in 1988. . . . It should be an open box policy when someone makes what appears to be a legitimate claim of wrongful conviction.

"The forensic reports that have now come up would have been extremely handy back in those years."

The Milgaard inquiry listened Thursday to the accounts of three chillingly similar sexual assaults Fisher committed in the months before he raped and murdered Gail Miller.

The inquiry resumes Monday afternoon with testimony from other women who were sexually assaulted by Fisher in the months before he raped and killed Miller.

After that, the inquiry will begin its second of three phases, which will focus on the police investigators. Most of the police officers who were involved in the murder investigation and later investigations related to Milgaard's attempts to have the matter reopened will be called to testify. Some have since died. Documents related to their activities will be read into the record.


At the end of March, an internal Winnipeg Police Report revealed that Inspector Ken Bieners had taken evidence crucial to the Barbara Stoppel murder to his house and that he destroyed some of it. Penkala took the Gail Miller files home with him.

Winnipeg police were concealing evidence to protect RCMP informant Terry Arnold who they knew to be a rapist/murderer and went on to commit more crimes. Saskatoon Police were protecting RCMP informant Larry Fisher.

We are told that Penkala has cooperated and provided his entire file. How can we believe him? What files has Dueck taken to his house now that he is retired? (This may sound like a shrill theme but Dueck was involved with murder investigations as well as framing innocent people for sex crimes.

I have been asking someone to look into the murder of Hugh Beck, a former foster child of Marie and Klassen, who was brutally killed shortly after Dueck left his calling card on the man's table. --Sheila Steele

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