David Milgaard died May 15, 2022 at age 69
Albert Cadrain, the youth who first implicated David Milgaard in a murder he didn't commit, was already an informant to one of the investigators.
Left to right: Steven Truscott, Ron Dalton, David Milgaard, Gregory Parsons CP PHOTO/St. John's Telegram - Gary Hebbard
Retired detective Jack Parker told the commission of inquiry into Milgaard's wrongful conviction that Cadrain had previously given him information about people in other cases, and that Parker sometimes paid Cadrain "a few dollars."
After David Milgaard was convicted in Gail Miller's Jan. 31, 1969, death, Albert Cadrain applied for and received a $2,000 reward. He had told police he saw blood on Milgaard's clothing the day of the killing.
Milgaard spent 23 years in prison before the Supreme Court of Canada quashed his conviction in 1992. DNA evidence exonerated him in 1997 and was used to help convict serial rapist RCMP snitch Larry Fisher of the crime in 1999.
Four police detectives trying to solve Gail Miller's death were at the Avenue O and 20th Street bus stop where Fisher was waiting to go to work on the first working day after the crime, the inquiry heard Tuesday.
Two detectives questioned Fisher, who told them he had taken the bus to work on the morning of the murder and hadn't heard or seen anything unusual.
Fisher, a construction worker, wore a yellow hard hat. At that point police didn't know who he was, but he had already raped two young women and had gotten scared off as he attempted to rape a third, the commission has heard.
On the morning of Feb. 3, 1969, two other detectives got on the bus, where the driver told them that a man in a red construction hat normally got on at the same stop as Miller but that he hadn't gotten on the day of the murder. The driver pointed out a different young man, who wore a red ski-hat. Police pursued that lead but it turned out to be a dead end. The bus driver later told police he must have been mistaken about the hard hat.
Police notes also show that someone also questioned a construction worker with an orange hard hat on 22nd Street.
One of Fisher's rape victims said her assailant had a hard hat and construction worker boots.
Commission counsel Doug Hodson questioned investigators about who was responsible for co-ordinating the investigation and ensuring all connections were examined and followed up.
The two detective-sergeants in charge of the Gail Miller murder investigation downplayed their involvement in the case when questioned about it years later by RCMP.
Det. Sgt. George Reid and Det. Sgt. Raymond Mackie were among four officers of their rank who normally supervised ordinary detectives assigned to investigate files, but in the Miller case, they were the ones assigned to do the actual investigation.
Both also denied being the "all-knowing" file co-ordinator who was responsible for reading all of the investigation reports and witness statements, and who could see connections and delegate tasks.
Reid said it was Mackie's job. Mackie said it was the job of his superior, Supt. Jack Wood, or his fellow detective-sergeant, Jack Ward, who is now deceased.
In 1993, after Milgaard's release from prison, RCMP looked into Milgaard's allegations of police misconduct in the 1969 investigation. RCMP reported that Reid said he had very little to do with the investigation.
Reid said Mackie had responsibility to put the file together toward the end of the investigation.
Mackie said Tuesday he was "basically just another investigator" on the case.
One of the first officers at the scene of the body added new, incriminating information about Milgaard when the federal Justice Department was looking into his application to have the case reopened.
Parker was one of the first two officers on the scene the day of the murder. He wrote in his notebook at the time that the snow around the victim's body was trampled as if there had been a scuffle right there.
Later that day, he returned and searched the alley. He found Miller's cardigan and a boot, buried in the snow around the corner from where the body was found. Parker took the boot to the hospital to compare with the boot still on the victim's body and found that it matched.
Parker also walked the alley, looking for footprints or vehicle tracks, but the snow was grainy from the extreme cold and he found none.
Yet in 1991, Parker changed his story, adding bits of information that Milgaard's lawyer, Hersh Wolch, suggested bolstered Milgaard's guilt.
Parker told RCMP he had seen moccasin footprints in the alley and later, when he learned that Milgaard was said to have been in his stocking feet that morning, he began to think it was a relevant bit of information.
He also said for the first time that he observed ruts in the roadway, which could have been made by a stuck car. He said he didn't mention them in his notebook, investigation report or during the preliminary hearing or trial because the ruts were somewhat obliterated by hoar frost on the foggy, -33 C morning.
Parker acknowledged his memory could have been faulty.
Charged with making progress in the Gail Miller murder case after investigators seemed to hit a roadblock, a police detective in charge of the 1969 investigation zeroed in on David Milgaard as a prime suspect in a document that contains both theory and fact.
Retired Det. Sgt. Raymond Mackie, 78, took the stand Wednesday at the commission of inquiry into Milgaard's wrongful conviction. Milgaard spent 23 years in prison for the crime he didn't commit. DNA evidence proved his innocence in 1997 and was used to convict serial rapist Larry Fisher in 1999 of killing the 20-year-old nursing assistant.
Mackie put together the summary document sometime in late April or early May 1969, the commission heard. Miller was killed on Jan. 31 that year.
The document created a chain of events that highlighted Milgaard's possible role in Miller's death, a role that was later apparently confirmed in a critical eyewitness statement from Nichol John on May 23.
Since that statement, John has never repeated her claim that she saw Milgaard stab Miller.
In the summary, Mackie theorized that Milgaard would have approached Miller in order to steal her purse, but his sex drive took over and he forced her down an alley where she was raped and stabbed.
"What would cause you to hypothesize that?" commission lawyer Doug Hodson asked.
"It's a theory, an assumption, a possibility," Mackie replied.
But Hersh Wolch, Milgaard's lawyer at the inquiry, suggested the summary shows Mackie had "tunnel vision," fixing on Milgaard as a suspect, then focusing on how to "make it work" in his interviews and gathering of evidence.
He also pointed out a discrepancy in Mackie's police report, which said John had seen a nurse walking down a street near the crime scene before she had actually made that statement.
"Is it possible that you got a little ahead of yourself?" Wolch asked.
John, Milgaard and Ron Wilson made a trip to Saskatoon on the day of the murder. On May 22, 1969, John was brought back to Saskatoon for further questioning and was transported around the city by Mackie. He took her to the murder scene, without telling her what it was, possibly to jog her memory, the commission heard.
Mackie said he remembers seeing a "change in demeanour" when John saw the two garbage cans in the alley where Miller had been killed.
"Fear, or I don't know how else you'd describe it," he said.
On May 23, John gave her incriminating statement to a Calgary polygraph expert in a hotel room. Although earlier testimony placed him in that room, Mackie said he had no recollection of hearing John's damning account. He said he would have remembered if he had been there. His police report contains no information on that day.
Although Mackie can't recall the day, it wasn't until May 24 that he took John's official police statement containing the new information pointing to Milgaard's alleged role as killer, a statement matching Mackie's purse-snatching theory.
When asked if someone would have tested John's statement against other evidence, Mackie said he doesn't remember.
"You wrote that down, that she told you, and didn't question her on it?" Hodson asked.
"No, it's her statement," Mackie replied. He agreed he was working with the theory that John had a "mental block" of what had occurred that day, which was one of the reasons why in his summary document he'd suggested either hypnosis or polygraph tests be used.
Mackie denied allegations that police wrote John's key statement the way they wanted it to read, and that the summary document was a "script" of what police wanted to find.
As for the fact that John was kept in a police cell overnight before she gave her statement, Mackie said John was offered hotel accommodations, which she refused because she said she was scared of Milgaard.
After retiring from the force in 1978, Mackie said he was satisfied Milgaard was properly convicted. He didn't know Fisher had later confessed to several Saskatoon rapes, he said, possibly because he had cut off ties with the police force after his retirement.
He said he didn't know John had never repeated in court her statement to him about seeing the murder.
Retired detective Raymond Mackie wrapped up testimony Thursday of his vaguely remembered role in the 1969 Gail Miller murder investigation, saying he is not sure any more whether he wrote a summary of the case that highlights David Milgaard's possible role in Miller's death.
Mackie produced the summary document after he was charged with reviewing the "stagnant" investigation file about four months after Miller was killed on Jan. 31, 1969.
But Mackie, who cut all ties with the police force after his retirement in 1978, told the inquiry into Milgaard's wrongful conviction that has no memory of when he might have written the document, or if he even penned it at all.
"I'm not even sure that I authored it, even now," Mackie said Thursday under questioning from Catherine Knox, who represents Milgaard prosecutor T.D.R. Caldwell.
Mackie often neither agreed nor disagreed with questions, simply saying he couldn't recall what had happened.
Milgaard was convicted of first-degree murder in Miller's death in 1970. Serial rapist Larry Fisher was eventually identified as the killer on the strength of DNA evidence, but not before Milgaard had served 23 years in jail.
Saskatoon police lawyer Richard Elson said Mackie's summary, put together in the weeks just before Milgaard was arrested, was likely based on impressions gleaned from an extensive police file.
"There are certain gut instincts that come to the fore in an investigation such as this," Elson put to Mackie.
Mackie was the officer who took Nichol John's incriminating statement in which she says she witnessed Milgaard kill Miller. John has not repeated that statement in court.
Earlier, Mackie testified he would have been working with the theory that John was blocking out frightening or painful memories before finally admitting to him she'd supposedly witnessed the crime.
"Back in 1969, was the term hysterical amnesia known to you?" Knox asked.
"I know those two words, but if I used them in this file, I don't know . . . I had some knowledge of things like that happening," Mackie said.
Vern Passet, 78, a sergeant with the K9 section in 1969, also took the stand Thursday, testifying how he was called to the crime scene on Jan. 31 with his tracking dog. He said the dog ran straight to an indentation in the snow in front of a funeral chapel where officers on the scene told him Miller's body had been found. The dog then went to an alleyway entrance where it appeared a car had been stuck in the snow.
Passet said he filed a report, but no record of that exists today. Assistant commission lawyer Jordan Hardy pointed out that Miller's body was actually found in a different location.
"Is there any chance you're mistaken in that attendance?" Hardy asked, but Passet denied it, maintaining the accuracy of his memory.
Passet also testified he'd interviewed three sexual assault victims in the months after Miller's murder, case reports he included in his investigation file.
"I thought maybe if this person was apprehended, it might help out the Gail Miller file," he said.
The serial rapist theory was discarded by police in the weeks before Milgaard's arrest on May 30, 1969.
The inquiry is on an eight-week hiatus following testimony Thursday. It resumes Aug. 15.
The expected cost of the Milgaard wrongful conviction inquiry climbed to $7.7 million Monday with the announcement of an additional 32 hearing days.
The commission, which resumed Monday after an eight-week summer recess, was already scheduled to sit four days per week and for about three weeks per month through December. The new dates are scheduled for January, February and March 2006.
The commission of inquiry, headed by Justice Edward MacCallum of Edmonton, is looking at the 1969 police investigation and criminal prosecution that led to David Milgaard's 23-year wrongful imprisonment for the rape and murder of Saskatoon nursing assistant Gail Miller. It is also considering whether the case should have been reopened when new information came to light.
Milgaard was released in 1992 after a key witness recanted his damning evidence and the case was reviewed by the Supreme Court of Canada. DNA evidence was used to exonerate Milgaard in 1997 and to help convict serial rapist Larry Fisher of the crime in 1999.
Milgaard's family has said justice officials deliberately ignored or suppressed information that could have led to his release years earlier.
Commission counsel Doug Hodson said he was not surprised by the need for additional hearing dates because the original 12-month schedule was based on rough estimates, before the number of parties was determined and before it was known how much time would be needed for all of the 11 parties with standing to cross-examine the witnesses.
"In all fairness, it is a moving target at the outset," Hodson said. "I think we have been very efficient and cost-effective."
The commission identified more than 300 people who may have had some relevant information pertaining to the case, which spans 36 years. Commission staff have interviewed more than 200 of those people and have managed to eliminate some, Hodson said.
Those who are called often must answer questions related to several subjects and their recollections from the time of the January 1969 crime, the year-long investigation and prosecution and subsequent investigations by police and journalists over the next 28 years until Fisher's conviction.
The inquiry, which began in January, originally was expected to cost $2 million. That rose to $4.8 million by the spring.
The commission has heard from 76 witnesses so far and 63 remain on the list at present.
In testimony Monday, retired Regina police superintendent Ken Walters recalled being asked to sit in on some interviews with two of Milgaard's teenage friends, who had travelled with him to Saskatoon the day of the murder.
Walters, who headed a youth section in the Regina police department, knew Ron Wilson, 17, and Nichol John, 16, as hippies who sometimes gave police information about the drug subculture and minor property crimes.
Wilson sometimes told police what he thought they wanted to hear, Walters said. The kid was cocky and may have embellished what he knew in hopes of gaining status with the police, Walters said.
Friendships among the transient teenage hippies were fleeting and it was not uncommon for informants to give information about their associates, Walters said.
Walters said he believed Wilson when he said Milgaard was not separated from him and John long enough to have committed the murder. Yet Walters did not have any reservations when he later heard that Wilson had implicated Milgaard. Wilson often withheld information the first time he was asked about a matter and he was reluctant to talk about incidents he had been personally involved in, Walters said.
John was a sullen, introverted girl who often became upset about difficulties she got herself into, he said. He considered her a good person who was "playing with the wrong crowd."
In 1993, Walters told RCMP revisiting the Miller murder investigation that he recalled finding a paring knife in the trunk of Wilson's car the day Wilson was first questioned about the Saskatoon trip. Walters still had that recollection Monday; however, RCMP in 1993 and the current commission of inquiry have not been able to find any documentary evidence to support that recollection. Instead, the record shows that nothing of significance was found when Wilson's car was searched in early March 1969.
The record does show that a pair of grey pants was found in the car, but those pants and another piece of clothing, a jacket, which Milgaard may have worn the day of the murder, were not retained by police.
Walters said he gave Wilson's mother permission to destroy a brown, acid-damaged jacket that was left at her home after the teenagers returned from the road trip to Saskatoon and Alberta.
The inquiry has heard that Milgaard was wearing a brown jacket when he and Wilson stole a leaking battery for Wilson's car prior to the trip. Witnesses have said they saw holes in Milgaard's jacket. Wilson and Albert Cadrain said they saw blood on Milgaard's clothing. The clothes were not presented at his trial.
Lumps of yellow snow found at the Gail Miller murder scene contained human seminal fluid, not dog urine as some have speculated, the technician who did the original tests in 1969 told the Milgaard inquiry Tuesday.
Tests were done to confirm the seminal fluid came from a human, said retired RCMP staff sergeant Bruce Paynter, who conducted the 1969 forensic serology lab tests on the samples.
"There is no doubt in my mind then, or since, that that is what I found," Paynter said.
Paynter also identified the spermatazoa in the fluid as human and could tell the difference between human and canine spermatazoa, he told the commission of inquiry looking into the wrongful conviction of David Milgaard.
Milgaard spent 23 years in prison for Miller's murder before he was released in 1992, following a Supreme Court of Canada review of the case. In 1997, testing of DNA evidence, which was not available in 1969, proved Milgaard's innocence and, in 1999 it was used to help convict serial rapist Larry Fisher of the crime.
The inquiry, headed by Justice Edward MacCallum of the Alberta Court of Queen's Bench, is reviewing the murder investigation, the prosecution and the whether the case should have been reopened after new information came to light.
Winnipeg's chief medical examiner, who reviewed the scientific case against Milgaard years later in support of his application for a judicial review, suggested the lumps of yellow snow were dog urine. Dr. Peter Markesteyn suggested the samples should have been subjected to certain tests to confirm they were of human origin.
Paynter did conduct the tests, he said Tuesday. He said he wondered how the other experts could argue with his findings when they never saw the samples or asked him about his work.
Paynter's analysis of the seminal fluid indicated it came from a man with a type A blood group and from a sub-group known as secreters. Other tests Paynter conducted showed Milgaard may have been a non-secreter.
Those findings tended to exculpate Milgaard.
"I found nothing to indicate he was the donor (of the seminal fluid). If all was as it appeared, he probably wasn't," Paynter said.
That scientific evidence was not accepted by Saskatoon police, who then sought advice from Dr. Harry Emson, the pathologist who had made the mistake of throwing away the semen he found in Miller's body during the autopsy.
Paynter said Monday the discarded semen would have been much better evidence than the yellow snow because there would have been less chance of contamination from other sources.
After learning that Paynter's findings tended to eliminate Milgaard as the semen donor, Lieut. Joe Penkala, then head of the Saskatoon police identification unit, consulted Emson.
Emson came up with two scientific theories that could undermine Paynton's findings and which Emson suggested might explain how a non-secreter could provide a secreter semen sample.
Emson suggested the thawing and re-freezing of the yellow snow may have caused the fluid to release the secretion at issue. He also suggested some secreters might secrete into semen but not into other bodily fluid, such as saliva.
Emson acknowledged there was nothing in the medical literature to support his theories. Markesteyn said he had never heard of any cases such as Emson proposed.
Paynton did conduct a test that undermined his previous findings. He found that one of the yellow snow samples could have been contaminated with blood, which rendered the earlier findings inconclusive, he said.
Ironically, saliva tests done on Milgaard years later found that he was a secreter, after all.
Those findings became irrelevant when modern DNA tests ruled Milgaard out, Paynter said.