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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page eleven

Officers bugged hotel room
Interview subjects unaware equipment installed in room

Joe Penkala

Former police chief Joe Penkala
Photo credit: Gord Waldner, StarPhoenix

Members of a low-profile intelligence-gathering unit drilled a hole in a hotel room wall and inserted a microphone as they tried to bug a room where David Milgaard's travelling companions were being interrogated by a Calgary polygraph expert in May 1969, the inquiry into Milgaard's wrongful conviction heard Monday.

Retired Saskatoon police officer Rusty Chartier was a member of the National Criminal Intelligence Unit, which provided technical support to investigators looking into the January 1969 rape and murder of nursing assistant Gail Miller.

Milgaard spent 23 years in prison for the murder before being released in 1992, after the case was reviewed by the Supreme Court of Canada. DNA evidence was used to clear him in 1997 and to help convict serial rapist RCMP snitch Larry Fisher in 1999.

The commission of inquiry, headed by Edmonton Justice Edward MacCallum, is looking into the murder investigation, the wrongful conviction and whether the case should have been reopened based on new information police later received.

Art Roberts, a Calgary polygraph expert, and the other police officers knew Chartier and his intelligence unit partner, Robert Morrison, were installing the equipment, but the interview subjects were not aware, Chartier said.

The recording equipment didn't work properly and resulted in a poor quality tape of the interrogations of Nichol John and Ron Wilson, Chartier said.

The tape has never been found.

It was during those interviews that Roberts reported obtaining the first verbal statements from the teens implicating Milgaard in the crime he didn't commit.

Both teens later signed written statements in the presence of Saskatoon police.

Chartier said he does not recall hearing John or Wilson make the incriminating statements that were attributed to them. He said he may have left the hotel room for part of the time the teens were being questioned.

He said he and Morrison may have gone for coffee at some point since they were not investigators on the case, but rather were simply installing the recording equipment for Det.-Sgt. Raymond Mackie, who was in charge of the case.

Also present were Det. Ed Karst, Lieut. Charles Short, who was Mackie's superior, and Short's boss, superintendent of criminal investigations Jack Wood, who was the most senior officer after the deputy chief of police.

Chartier recalls seeing Roberts in the hotel hallway after the interrogation was finished and asking him if he had done the polygraphs.

"I didn't have to, they were telling the truth," Chartier recalled Roberts responding.

Roberts told the Supreme Court of Canada in 1992 that John first said she couldn't remember what happened, but after he showed her Miller's blood-stained uniform, John exclaimed that suddenly she could remember seeing Milgaard fighting with a woman down the lane and stabbing her.

John signed a statement saying she saw Milgaard stab a woman but refused to repeat the statement at trial.

She has since insisted she doesn't remember details of what happened the morning of Miller's murder.

Wilson testified at Milgaard's 1969 trial that Milgaard confessed to him a few days later and that John told him she already knew about it.

Wilson recanted in 1992, saying police manipulated him by asking suggestive questions and indicating that he might be blamed for the murder if Milgaard was not.

Earlier in the inquiry, Wilson said Roberts was the most intimidating of the police he dealt with.


Police asked about 'Tunnel Vision' at inquiry

SASKATOON - The lawyer for the Milgaard family had some harsh criticism yesterday for the way the Saskatoon police conducted their investigation into Gail Miller's 1969 rape and murder.

David Milgaard spent 23 years in prison after being wrongfully convicted of the crimes. The inquiry into his wrongful conviction is looking at the role police played in what happened.

On Tuesday, Milgaard family lawyer James Lockyer questioned former Saskatoon police officer Rusty Chartier about why the police did not share relevant information that may have helped to clear Milgaard.

Chartier, one of about 100 police involved in the murder investigation, spoke of a "stovepipe" attitude that meant sections of the police department didn't share information with other sections.

And he said there was no one in charge of reading all the reports to see if there were some common threads.

Lockyer asked Chartier about a letter he wrote to a newspaper in the early '90s after the Supreme Court freed Milgaard and ordered a new trial.

Lockyer said Chartier accused the media of "the worst kind of tunnel vision." Chartier replied his feelings haven't changed.

"As we now look back on it, it really demonstrates the most extraordinary tunnel vision on the part of the Saskatoon Police Service, don't you think?" Lockyer asked Chartier.

"I don't think so," Chartier said.

Lockyer asked Chartier why he continued to believe in Milgaard's guilt even after the Supreme Court ordered a new trial.

He said it was because the DNA evidence hadn't cleared him at that point.

Chartier also said he couldn't recall if he knew the name of Larry Fisher when he was working on the Milgaard case.

Fisher was convicted of Miller's murder in 1999.


Milgaard's mom close to finding Fisher in '83

David Milgaard's mother was surprised Tuesday to realize she had been on the trail of a key source whose information might have helped free her son from prison many years before he was released in 1992.

"To think we were so close in 1983 is upsetting to me," Joyce Milgaard said Tuesday during a break at the commission of inquiry into the wrongful conviction of her son, who spent 23 years in prison for a rape and murder he didn't commit.

Joyce Milgaard was responding to a long-forgotten letter her former lawyer, Tony Merchant, had written in May 1983 to a private investigator in which he sought help in tracking down three people Milgaard wanted to talk to. The letter was raised by another lawyer during questioning at the inquiry.

The people Milgaard sought included Linda Fisher, who, Merchant noted, lived at 334 Ave. O South in 1969.

"She married Larry Fisher who is presently in prison on a rape charge," Merchant wrote in the letter to a Calgary firm.

Joyce Milgaard didn't realize at the time that Larry Fisher had committed other rapes in the same neighbourhood and within months of the Miller murder. In 1983, she sought Linda Fisher only because she knew the woman had once lived in the same Avenue O house as Albert Cadrain, one of the teenagers who testified against David Milgaard.

Joyce Milgaard never doubted her son's innocence and worked for years gathering evidence to have his case reopened. During that time she spoke with hundreds of people, many of whom had no useful information for her.

"I had no idea of the significance of her. We were just looking for more information. I'm absolutely blown away," Milgaard said.

"How many years we could have taken off David's sentence," she said.

The investigating firm never did find Linda Fisher for Milgaard.

Seven years later, in 1990, Milgaard's lawyer Hersh Wolch received an anonymous tip saying Larry Fisher was the person who had really killed Gail Miller. That information was an important part of Milgaard's successful bid to have his case reviewed by the Supreme Court of Canada, which quashed his conviction in 1993.

In 1983, Milgaard did not know that Larry Fisher had pleaded guilty in 1970 to three rapes and one indecent assault in the same neighbourhood where nursing assistant Gail Miller was raped and murdered on Jan. 31, 1969, or that the attacks had occurred in the months just before and after Miller's murder.

Some police investigators originally -- and correctly -- thought the person who had committed the then-unsolved rapes in the Pleasant Hill neighbourhood was the same person who killed Miller, but that theory was abandoned after Milgaard's teenage friends implicated him in the murder.

Milgaard was convicted in January 1970 and sentenced to life in prison. Months later, Fisher was caught raping a woman in Winnipeg. He confessed to the Saskatoon rapes.

In an unusual move, Fisher was brought to Regina, not Saskatoon, to plead guilty to the charges. He was sentenced to prison and was released in 1980.

Two months later, he raped a woman in North Battleford and was sentenced to 10 years in prison. Months later, his ex-wife Linda told Saskatoon police she suspected Larry had committed the Miller murder.

Lawyers for the Milgaards say Saskatoon police never gave them any information about Larry Fisher. They did not say how Milgaard knew in 1983 that Linda Fisher had lived in the Cadrain's basement suite.

"We were so frustratingly close," Wolch said.

"It highlights the lack of disclosure. Even if police don't want to follow leads, the defence can. Not knowing about the 1968 rapes in the area was crucial," Wolch said.


Evidence should have been saved: ex-police chief

Retired Saskatoon police chief Joseph Penkala acknowledged Wednesday he should have ensured that semen found in murder victim Gail Miller's body was retained and sent to a crime lab.

"It was the police responsibility. We obviously didn't do that. I can only assume in discussion we didn't think there was any benefit," Penkala said, adding he probably discussed the matter with the pathologist Dr. Harry Emson, who conducted the autopsy.

Penkala, 73, testified at the commission of inquiry into the wrongful conviction of David Milgaard, who was blamed for Miller's January 1969 murder and spent 23 years in prison.

His conviction was quashed by the Supreme Court of Canada in 1992.

Penkala, who was the lieutenant in charge of the identification unit during the investigation, said the fact the fluid was thrown away after the pathologist confirmed it contained immobile spermatozoa "never came up again."

Penkala said he doesn't know if the fluid could have been used in 1969 to help identify Miller's assailant.

Instead, police depended upon two frozen lumps of yellow snow Penkala found at the unprotected crime scene four days later to eliminate suspects and focus on those with a certain blood type.

He asked the crime lab to determine if the yellow snow contained semen and if it came from a human source. The lab said it did.

Penkala would not say Wednesday that he threw away useful evidence from the autopsy on Miller's body.

But Penkala acknowledged he sent samples of semen found on another woman who was raped around the same time as Miller to the RCMP crime lab for analysis.

Penkala raised the possibility of a contaminated specimen in the Miller case.

But he said he was more concerned that the semen found inside Miller's body would be contaminated by blood from her imminent menstruation than he was about the possibility the yellow snow he found days later might be compromised evidence.

Findings from analysis of the yellow snow were used in the prosecution's case against Milgaard.

In 1997, DNA from semen on Miller's underwear proved Milgaard was not the assailant and was used to help convict serial rapist Larry Fisher in 1999.

Penkala acknowledged he and other Saskatoon police officers originally thought Miller had been killed by the same person who had raped two other young women in the area in recent months, but they had no suspects for the rapes or the murder.

Police abandoned evidence pointing to similarities in the rape cases after friends of Milgaard's implicated him in Miller's death.

Milgaard was never accused of committing the other rapes.

Months after Milgaard was convicted and sentenced to life in prison, Fisher admitted committing the other rapes.

Milgaard and his family accuse the police of deliberately suppressing that information.

The inquiry saw Wednesday that Penkala wrote a letter to the RCMP national crime index soon after the murder, in which he listed the similarities between the modus operandi of the Miller killer and the attacker in rapes that occurred in October and November 1968.

The rape victims were 18 and 20 years old, all had dark hair and were petite.

They were attacked while walking alone at night, were threatened with knives, taken into alleys, forced to remove their clothing and raped. The rapist took some articles of their clothes and allowed them to put some clothes back on.

Miller was 20 and had dark hair. She was attacked about 6:45 a.m. on Jan. 31, when it would still have been dark outside, and was stabbed repeatedly with a paring knife.

It appeared Miller had also been forced to partially undress in the bitterly cold, -40 C morning. The top of her one-piece uniform dress had been removed and was bunched around her waist, but her arms were in the sleeves of her black coat, as if she had been allowed to put it back on.

The coat had knife holes matching many of her stab wounds. Her throat also had been slashed.

Penkala returns to the stand today.


Fisher's ex-wife ignored
Penkala: Police should have investigated claim, former chief says

When the ex-wife of serial rapist Larry Fisher told Saskatoon police in 1980 that she felt he might have murdered Gail Miller 11 years earlier, the matter should have been fully investigated, former police chief Joseph Penkala said Monday.

"If I was aware . . . I would call for a thorough examination of the allegations made by Linda Fisher. . . . It would be important to do that," Penkala told the commission of inquiry into the wrongful conviction of David Milgaard, who served 23 years in prison for the murder Fisher committed.

If the allegation had been substantiated, the findings would have been sent to the provincial Justice Department, Penkala said.

The fact Milgaard had already been convicted of murder in Miller's death would have been an impediment to police attitudes toward the allegation, he said.

"It can't be denied. It was a situation that rested in the minds of many investigators. (If there had been no conviction) I assume it would have got a different kind of approach," he said.

Penkala said he did not find out about Linda Fisher's Aug. 28, 1980, statement to a Saskatoon police inspector until about 10 years later, when Milgaard was applying to the federal justice minister for a review of his case.

When Linda Fisher came forward, Penkala was the superintendent in charge of the patrol division and sometimes became acting chief when the police chief was away. As a senior officer he had, for more than 11 years, been involved in the daily meetings of top Saskatoon police officers, who discussed day-to-day operations and important matters going on within the department.

Linda Fisher's statement appears to have been forwarded directly to Jack Parker, who had been involved in the Miller murder investigation and who, by 1980, was the duty inspector for the patrol division.

While the practice would have been to assign such a matter to the detective division for follow-up, that was not done in this case, Penkala said.

Linda Fisher had been divorced for two years from Larry Fisher, who was serving a 10-year sentence for rape, when she went to the police station and told them the couple had lived in the basement of the house where Albert Cadrain lived with his family in 1969.

Cadrain was the 16-year-old friend of Milgaard who was the first person to implicate Milgaard in the murder, when he told police Milgaard had blood on his clothing when he came to the Cadrain house that morning.

Association with the Cadrain house was an important part of the murder investigation because the dead nursing assistant's wallet and identification were found on the boulevard in front of a house two doors down from the Cadrain's and a tuque with blood on it was also found nearby.

There was no indication police were aware in 1969 that Fisher lived in the house, nor was he a suspect in a series of sexual assaults that had occurred in the neighbourhood in recent months.

Unbeknownst to police in 1969, Fisher had raped two girls and attempted to rape another in the months before the murder. Within minutes of killing Miller, someone using the same approach that Fisher used in rapes also groped a young woman on the street a few blocks away.

Weeks after Milgaard's January 1970 conviction for killing Miller, Fisher raped another woman in Saskatoon. He was caught raping a woman in Winnipeg in September of that year and confessed to the Saskatoon sexual assaults.

Penkala, who was already a senior officer who attended the daily meetings in 1970, said Monday he didn't know that one of the Miller investigators, Eddy Karst, had gone to Winnipeg to interview Fisher about the rapes.

Penkala also denied knowing at the time that Fisher was brought to Regina in 1971 and pleaded guilty to rapes that Penkala had once been certain were connected to the Miller murder.

Prior to Saskatoon police focusing the investigation on Milgaard, Penkala had written to the RCMP national crime index with a list of similarities between the unsolved rapes and the Miller murder. He had also sent biological samples from the rapes and the Miller murder to the crime lab to see if links could be established.

That testing had indicated the rapist could not be eliminated from the murder investigation but the rape and murder connection was abandoned when police focused on Milgaard.

Milgaard was released in 1992 after the case was reviewed by the Supreme Court of Canada. DNA evidence was used to prove his innocence in 1997 and was used to help convict Fisher in 1999.

The commission, headed by Justice Edward MacCallum of Edmonton, is looking into Miller's death, the police investigation that led to the wrongful conviction and whether the case should have been reopened when new information came to light. Penkala returns to the stand today.


Link between rapes, murder rejected: Penkala

Former Saskatoon police chief Joseph Penkala knew of only one serial rapist in his 37 years with the department, so there would have been good reason to think the person who raped and murdered Gail Miller using similar methods as the rapist around the same time and in the same neighbourhood was the same person, he said.

Under cross-examination by Joyce Milgaard's lawyer, James Lockyer, Penkala acknowledged it also would have been reasonable to think the same person was responsible for an indecent assault on a young woman 20 minutes after Miller was killed and just a few blocks away.

Considering the strange time of day for a rape, in the early morning, and the extremely cold -40 C weather, police might have inferred they were dealing with the same person, Lockyer suggested.

Penkala agreed. He was testifying at the commission of inquiry into the wrongful conviction of David Milgaard, who spent 23 years in prison for the crime committed by serial rapist Larry Fisher. The current phase of the inquiry is looking into the police investigation that led to the injustice.

Police must have seen the connection between the same-day assault and Miller's death because the assault was included in the Miller investigation file, Lockyer suggested. Penkala agreed.

Lockyer noted that if police rejected the theory that Fisher was the murderer, then they must have been prepared to accept that on the cold morning of Miller's death, there were two different men committing sexual assaults on young brunette women within five blocks of each other, Lockyer said.

Penkala agreed the striking coincidence could have been relevant, but he insisted that he wasn't in control of the investigation.

Penkala testified last week that he and Insp. Charles Short were the ones who in May 1969 convinced their superior, Supt. Jack Wood, to continue pursuing Milgaard.

At a May 16 meeting the three officers adopted a theory about Milgaard killing Miller, which subsequently became the basis of further questioning of Milgaard's companions from the day of the murder, Penkala said.

That theory ignored the connection between the rapes and the murder. The rapes were never raised again during the murder investigation.

But Penkala also insisted there were reasons for police ignoring evidence from the rapes after they decided to focus on Milgaard.

"Simply because there were similarities doesn't mean it was the same person," Penkala said.

While it may look like police "had options" beyond focusing on Milgaard, they also had evidence against Milgaard "staring at us, glaring at us," Penkala said.

Police had a statement from Milgaard's friend, Albert Cadrain, saying Milgaard had blood on his clothing that morning. Police had also established that Milgaard and two other teens had been driving around streets and alleys in the same neighbourhood as the murder.

Penkala also told the inquiry he was not aware that Fisher struck again, just weeks after Milgaard was convicted and sentenced to life in prison.

That coincidence escaped Penkala even though he was the person who wrote the request for crime lab tests of biological samples in the new rape case.

Penkala also said he didn't know that one of the investigators he worked with on the Miller murder investigation, Ed Karst, had obtained a confession from Fisher 18 months after police abandoned the serial rapist-murder connection.

Penkala has told the inquiry that if there had been a conspiracy to conceal the Fisher rape convictions from Milgaard, Penkala would have heard about it "through the grapevine" within the police department, Lockyer observed.

Yet the grapevine did not inform Penkala that the serial rapist had been caught, that Saskatoon police had obtained a confession from Fisher and that he had been pleaded guilty to the Saskatoon rapes in a Regina court.


Penkala still unsure Milgaard apology warranted

Former Saskatoon police chief Joseph Penkala said Wednesday he "would have considered" apologizing to David Milgaard if he had still been chief in 1997, when DNA evidence exonerated Milgaard in the 1969 rape and murder of Gail Miller.

"I certainly would have considered it. I don't think anybody's pleased about the fact an innocent person was in jail, but I still go back to the fact that the understanding was that there was nothing that was done improperly and what am I apologizing to? So I would view it in that respect," Penkala said during cross-examination by Joyce Milgaard's lawyer, James Lockyer.

Lockyer pointed out that the Saskatoon police force is the only party involved in the wrongful conviction that has not yet apologized to Milgaard.

When DNA evidence revealed in 1997 that Milgaard had not committed the crime, and showed Larry Fisher had, Milgaard received apologies from the federal justice minister, the Saskatchewan justice minister and Crown prosecutors T.D.R. Caldwell, who handled the trial, and Serge Kujawa, who handled Milgaard's failed appeals to the Saskatchewan Court of Appeal and, in 1971, to the Supreme Court of Canada.

Penkala said Dave Scott, who was chief of police at the time, may not have known the facts when Scott refused to acknowledge that the DNA results exonerated Milgaard or to apologize to him.

Saskatoon police lawyer Richard Elson objected to Lockyer asking Penkala if Saskatoon police should apologize to Milgaard.

Inquiry commissioner Justice Edward MacCallum allowed the question, saying it was relevant because the commission's mandate includes looking into systemic issues in the wrongful conviction.

Penkala said police couldn't rely on the media to inform them about facts of the case, but he was not able to identify any examples of inaccurate reporting.

Instead, Penkala said he was offended by reporters being "critical," "accusing" and "demanding" of answers when news came out about things like Fisher's rape convictions and a Milgaard witness recanting.

Lockyer showed how information about Fisher, a serial rapist, should have alerted Saskatoon police to the possibility they had helped convict an innocent man.

- Three weeks after Milgaard was convicted of first-degree murder, the then-unidentified serial rapist, who had been an early suspect in Miller's death, struck again, seven blocks away from where Miller's body was found.

- Ten months after Milgaard was convicted, Fisher confessed to a Saskatoon police officer involved in the Miller murder investigation, Ed Karst, that he had committed two of the serial sex offences in Saskatoon. Penkala said he never found out about this until years later.

- Eleven months after Milgaard's conviction, Fisher was charged with four sex offences in Saskatoon, including three rapes and one attempted rape, which was listed as an indecent assault.

- In December 1971, while serving a 13-year sentence for two Winnipeg rapes, Fisher was taken to Regina, not Saskatoon, where he pleaded guilty to the four Saskatoon sex offences. Fisher was not sentenced to any extra prison time. He received a 10-year sentence to be served concurrent to the Winnipeg sentence. Penkala said he didn't find out about that until many years later.

- Two months after Fisher was released in January 1980, he raped a woman in North Battleford and was soon arrested.

- In August 1980, Fisher's ex-wife Linda Fisher told Saskatoon police she thought Fisher had killed Miller, including the fact her paring knife had gone missing at the time. The information was not followed up by Saskatoon police.

- In June 1981 Fisher was convicted of the North Battleford rape, in which he told the victim he had slit the throat of another woman he had raped.

- In the early 1990s, a woman who was sexually assaulted about 20 minutes after Miller was killed and just a few blocks away, identified Fisher as her assailant.

Also Wednesday, Penkala acknowledged that police had two suspects in Miller's death -- Milgaard and an unidentified serial rapist.

The defence should have been told about the unidentified serial sex offender so the defence could have put it before the jury to decide whether they believed beyond a reasonable doubt that the killer was Milgaard and not the serial rapist, Penkala acknowledged.


Police didn't hide facts about Fisher convictions: Penkala

"There is not a crumb of truth," in the allegation that police hid facts about Larry Fisher's rape convictions from David Milgaard's lawyers and family, former Saskatoon police chief Joseph Penkala said at the Milgaard wrongful conviction inquiry Thursday.

"I am offended to have that brought forward. . . . I never knew an officer who would stoop to that," Penkala said while being questioned by lawyer Aaron Fox, who represents retired police officer Ed Karst.

Penkala denied that Saskatoon police were involved in the circumstances surrounding Fisher's conviction in Regina for crimes he committed in Saskatoon.

Milgaard's lawyers have said the matter was handled in a different jurisdiction to help keep Fisher's existence a secret from them. The fact Fisher had committed other rapes in the same neighbourhood in recent months was part of the information considered by the Supreme Court of Canada when it quashed Milgaard's 1970 conviction in 1992.

Penkala said this week that he didn't even know until years later that the serial rapist who had been active in Saskatoon around the time of the Miller murder had been caught, convicted and sentenced.

Saskatoon police didn't have any say in where Fisher would plead guilty or be sentenced, Penkala said.

Months after Milgaard was convicted of the Miller murder, Fisher was caught raping a woman in Winnipeg in September 1970. He was sentenced to 13 years for that and another Winnipeg rape.

He was taken from Saskatchewan Penitentiary in Prince Albert to Regina, where he pleaded guilty to the Saskatoon rapes and was sentenced on Dec. 21, 1971.

The fact it happened just days before Christmas meant activity in the courts was unlikely to draw as much attention as usual, Joyce Milgaard's lawyer, James Lockyer, observed earlier this week.

Saskatoon police also had nothing to do with when Fisher would plead guilty to the charges, Penkala said.

Nor did Saskatoon police have any say in the length of sentence Fisher received, Penkala said.

Fisher was sentenced to 10 years for the Saskatoon sexual assaults, to be served concurrently with the 13-year sentence he received for the Winnipeg rapes.

The principle of global sentencing is often used in cases where an offender receives one large sentence when he or she pleads guilty to a series of charges, Fox said. Penkala agreed.

It is not uncommon for offenders who will be convicted of certain crimes to plead guilty to outstanding offences in order to "start fresh" when they get out of jail, Fox suggested. Penkala agreed.

There was no attempt to hide the convictions from the victims, Penkala said.

He didn't know of any police protocol around 1970 for informing rape victims when their attackers were convicted. Three of Fisher's victims were not informed that their assailant was off the streets until Joyce Milgaard told them years later.

Fox pointed out that within days of the Miller murder, articles appeared in the Saskatoon StarPhoenix and the Regina Leader-Post mentioning other sexual assaults which had recently occurred in Saskatoon.

"Is there any reason to think David Milgaard's defence wouldn't know about this?" Fox asked. Penkala didn't know.

Milgaard was charged in May, 1969 for the Jan. 31 murder.

Saskatoon police were not directly involved in providing disclosure about investigation findings to the defence, Penkala said. Police followed the direction of the Crown prosecutor, he said.

Milgaard's lawyers say his 1970 defence lawyer, Calvin Tallis, should have been provided with information about the then-unsolved sexual assaults so that the jury could have decided whether it weakened the case against Milgaard.

Fox also reviewed the information police had gathered that showed why they continued pursuing Milgaard as a suspect in the murder.

Fox also showed that, while police theorized the killer might be the unidentified man who had sexually assaulted three women in recent months, there were differences between the murder and the sexual assaults. Miller was robbed of her purse, while other rape victims were not. Miller was the only case, at that time, in which the assailant actually used a knife.


Milgaard investigators didn't suppress information
Penkala: Says officers not responsible for forwarding reports to lawyers

Former Crown prosecutor T.D.R. Caldwell never asked or told Saskatoon police to suppress or distort any information related to its investigation of Gail Miller's murder, former police chief Joseph Penkala told Caldwell's lawyer Monday.

In his final day on the witness stand at the inquiry into the wrongful conviction of David Milgaard, Penkala acknowledged that he did not ensure all his reports made their way to the prosecutor -- that wasn't his job -- and he doesn't know which documents from the police investigation would have been given to Caldwell.

"You didn't take personal responsibility to be sure that it went to prosecution services. Not that you were required to, but you weren't one of those officers who went that extra bit or made sure that everything went. You followed the system," Knox said.

"That's right," Penkala said.

In the years since Milgaard was convicted, his lawyers have alleged the police and prosecutors deliberately withheld information that could have helped Milgaard's defence.

Milgaard was convicted of the January 1969 rape and murder of the 20-year-old nursing assistant and spent 23 years in prison before the Supreme Court of Canada quashed the conviction in 1992. By then, one of the witnesses against Milgaard had recanted, one could not recall her most damning evidence against him and one had called police interrogation during the investigation "mental torture." The Supreme Court also considered the fact a serial rapist, Larry Fisher, had assaulted other young women in the area around the time of the murder.

In 1997, DNA evidence showed Milgaard was not the assailant, and that evidence was used to help convict Fisher of the crime in 1999.

Penkala acknowledged Monday that someone within the police department would have determined which documents were relevant to send to the prosecutor and would have excluded those which were deemed not relevant.

Saskatoon police did not have a regular procedure for gathering all information related to a file before sending it to the Crown prosecutor until the early 1960s, when then-chief James Kettles implemented a case preparation procedure that delegated the job to one person, Penkala said.

Caldwell's lawyer, Catherine Knox, showed correspondence between Caldwell and Milgaard's defence lawyer, Calvin Tallis, in which it appears police did not release all the relevant information to Caldwell at one time, but rather provided at least some of the information as Tallis requested it through Caldwell.

Penkala earlier denied police suppressed information of their own accord. He said he never knew that Fisher confessed, a year after Milgaard was convicted of the murder, to sexually assaulting other young women in Miller's neighbourhood in the months prior to the murder. Nor did he know Fisher pleaded guilty in Regina to the Saskatoon crimes.

In the early weeks of the investigation, Penkala and other Saskatoon police officers investigated the possibility that the man who had raped two young women and attempted to rape a third was the same person who killed Miller.

Knox referred to four documents Caldwell had in the Milgaard prosecution file, which refer to some of the sexual assault victims. She pointed out that those reports did not specify a connection to the Miller murder and some of them had written notations indicating they were "not connected."

Penkala acknowledged those documents did not lay out for Caldwell the possibility the rapist was also the murderer.

Milgaard's lawyer, Hersh Wolch, reiterated that Fisher was not sentenced to any additional prison time after pleading guilty to the violent Saskatoon sexual assaults in Regina. He was already serving a 13-year sentence for two rapes in Winnipeg when he pleaded guilty to the Saskatoon sexual assaults.

Contrary to suggestions by other lawyers at the inquiry, the principle of global sentencing, in which one large sentence is given for numerous offences, was not considered when Fisher was sentenced in Manitoba, Wolch showed. He referred commissioner Edward MacCallum to a letter from the Manitoba Crown prosecutor which stated that "at no time was Fisher's Saskatchewan involvement made known to the sentencing judge, therefore this involvement was not taken into account in his 13-year sentence."

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