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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page fifteen

Former detective apologizes to Milgaard

David Milgaard received an apology Monday from a Saskatoon police officer involved in the investigation that led to his wrongful conviction for murder 35 years ago.

Milgaard's mother, Joyce, wept quietly when commission counsel Doug Hodson read the words of former Saskatoon detective Elmer Ullrich.

"The tears came to my eyes again, tears of happiness. You finally hear someone say they're sorry. I'm so grateful," Joyce Milgaard said after the inquiry ended for the day.

Ullrich, now 76, was the police officer who prepared a case summary outlining the evidence against Milgaard for the Crown prosecutor in 1969.

Ullrich did not testify at the inquiry in person because of health problems. His testimony, videotaped Aug. 25, 2005, at the commission office in Saskatoon, was played at Monday's hearing.

The apology was not videotaped. It was included in typed notes Ullrich prepared in advance of his interview with assistant commission counsel Jordan Hardy.

Hardy intended to question Ullrich on two sections of his notes headed "Apology" and "Why did the system fail?" but the interview ended early because of Ullrich's poor health.

"I am sincerely sorry and wish to herewith express and extend my apologies to the Milgaards and in particular to David Milgaard for the mistake we made," Ullrich wrote.

"I can only say I did not intend to find him guilty when he was innocent. At the time I thought we, the police, were right in charging him. Obviously we were not," he wrote.

The apology was especially welcome to Joyce, who was offended at another officer's earlier refusal to apologize or to acknowledge any mistakes by the police. Former detective Eddy Karst said in August he didn't have anything to apologize for.

Joyce Milgaard travelled to Portugal to visit friends in the two weeks since Karst's testimony.

"I had to leave the country. I felt hopeless," she said. "Even though they all say they did nothing wrong, the media is bringing out what they did wrong. I hope today's police don't want to be put in the same position.

"I guess there's hope. I hope some good will come out."

"I hope there will be more of that," she said referring to Ullrich's admission that police made a mistake.

Milgaard was a 16-year-old hippie who happened to be in Saskatoon on the frigid January morning when nursing assistant Gail Miller was raped and stabbed to death.

Larry Fisher

Larry Fisher, RCMP snitch and serial rapist killed Gail Miller in 1969

Milgaard was convicted after three teenage friends gave false statements against him. He spent 23 years in prison before he was released in 1992 based on a Supreme Court of Canada review of the case. DNA evidence proved his innocence in 1997 and was used to convict serial rapist Larry Fisher of the crime in 1999.

Ullrich also wrote in his recent notes that "murder cases can be compared to large jigsaw puzzles. Some pieces of the puzzle are immediately identified while others can elude the people trying to piece this all together."

Ullrich also wrote that "the human factor" enters the process and "unfortunately, human often fail, accordingly the system . . . is designed to ensure mistakes are corrected."

The commission of inquiry has completed the police investigation phase of hearings. It moves on today to an examination of information about Fisher, who is currently serving a life sentence in Miller's death.

Commission transcripts and documents are available on the Internet at www.milgaardinquiry.ca.


Former cop who prepared 1969 case against Milgaard apologizes

A former Saskatoon police officer has apologized for his actions that helped lead to the wrongful conviction of David Milgaard. In 1969, Elmer Ullrich prepared a case summary outlining the evidence against Milgaard in the rape and murder of Gail Miller.

Ullrich, who is now 76 and in poor health, did not appear at the Saskatoon inquiry into Milgaard's conviction. Inquiry lawyer Doug Hodson read the apology Monday from Ullrich's notes.

"I am sincerely sorry and wish to herewith express and extend my apologies to the Milgaards and in particular to David Milgaard for the mistake we made," Ullrich wrote.

"I can only say I did not intend to find him guilty when he was innocent. At the time I thought we, the police, were right in charging him. Obviously we were not."

Milgaard's mother, Joyce, was in the room when the statement was read, and began to weep.

"The tears came to my eyes again, tears of happiness. You finally hear someone say they're sorry. I'm so grateful," she said later.

Ullrich's apology follows the August appearance of another retired police officer, Eddy Karst, who refused to apologize.

"I certainly feel sorry for David Milgaard, or anyone else that has been wrongly incarcerated, or for Mrs. Milgaard having been put through this."

"However, I did nothing wrong in my opinion and I don't feel I have anything to apologize for."

In 1970, 16-year-old David Milgaard was sentenced to life imprisonment for the 1969 murder of 20-year-old Saskatoon nursing aide Gail Miller.

After 23 years in prison, the Supreme Court of Canada set aside his conviction. Five years later he was cleared by DNA evidence and awarded $10 million. In the same year, Larry Fisher was found guilty of the rape and stabbing death of Gail Miller.

The public inquiry into those events opened in Saskatoon on Jan. 17.

Mr. Justice Edward MacCallum is expected to hear from more than 100 witnesses - including David Milgaard and Larry Fisher - over the course of a year. The list of potential witnesses includes former prime ministers Brian Mulroney and Kim Campbell and former Saskatchewan premier Roy Romanow.


Fisher unforgettable for ex-Winnipeg officer

A Winnipeg police officer said he never forgot Larry Fisher because of the rarity of serial rapists, the brutality of Fisher's crimes and the lack of emotion in his eyes.

Retired investigator Lorne Huff was the officer who took statements from Fisher in September 1970 about two Winnipeg-area rapes and an indecent assault and a rape Fisher had committed in Saskatoon.

Twenty years later, when Huff read about a suggestion by supporters of David Milgaard that a serial rapist in Saskatoon might have been the real killer of nursing assistant Gail Miller, Huff remembered Fisher.

"I remember Larry Fisher. He was someone I would never forget," Huff said Tuesday at the commission of inquiry into Milgaard's wrongful conviction. He recalled telling a newspaper reporter that Fisher had "fish eyes. There was no expression in them."

Huff was struck by similarities between the rapes Fisher had committed and the circumstances of Miller's rape and killing. Fisher usually met his victims on quiet streets, dragged them into alleys and forced them to undress before raping them.

He sometimes used a knife to threaten his victims, often struck them and sometimes took some of their clothing or money.

Huff contacted Milgaard's lawyer, David Asper, and offered what information he had.

Huff's memory contrasts sharply with the blank drawn by former Saskatoon Det. Eddy Karst, who was a main investigator in the Miller case. Karst and a morality inspector travelled to Winnipeg and took statements from Fisher about the Saskatoon indecent assault and rape. Months later Fisher also admitted to two other Saskatoon rapes.

Karst has told the commission he does not remember the Winnipeg trip or interviewing Fisher.

Detective-sergeants Ray Mackie and George Reid, Lieut. Joe Penkala and Supt. Jack Wood, also former Saskatoon police officers, have said they don't remember learning about Fisher or realizing the rapist they had once suspected in Miller's death had been caught in Winnipeg.

Four charges against Fisher were sworn in Saskatoon in December 1970, but Fisher was taken to court in Regina to plead guilty in December 1971. He was sentenced to 10 years concurrent with the sentence he was already serving for the Winnipeg rapes.

Milgaard's supporters have alleged that Saskatoon police deliberately suppressed information about Fisher's rape convictions to avoid embarrassing questions about his possible involvement in Miller's death.

After retiring from the Winnipeg police, Huff operated his own investigation and polygraph business.

Under questioning by Milgaard's lawyer, Hersh Wolch, Huff said Tuesday he would never show a polygraph candidate upsetting autopsy photographs because they would affect the polygraph results and render them inconclusive.

That attitude contrasts with the actions of Calgary polygraph expert Art Roberts, who was brought to Saskatoon to interview two teenage friends of Milgaard who maintained he was never out of their company long enough to have committed the crime.

Roberts showed Nichol John the blood-stained nurse's dress Miller was wearing. Immediately after seeing the dress, John changed her story and said she remembered seeing Milgaard stab a woman.

John signed a statement to that effect but never repeated it in court, nor since.

Roberts did not conduct a polygraph on John.

Fisher is expected to testify at the inquiry next week.


Fisher lawyer in dark about murder

Serial rapist Larry Fisher's Winnipeg lawyer says he didn't know anything about the death of Gail Miller in Saskatoon when he arranged for Fisher's Saskatoon charges to be dealt with as quickly as possible.

Lawyer Lawrence Greenberg's main goal was to ensure the sentence his client received for pleading guilty to four sexual offences in Saskatoon would run concurrent to the 13-year term he was already serving for two rapes in Winnipeg, Greenberg told the inquiry into David Milgaard's wrongful conviction on Wednesday.

Milgaard's supporters have alleged Saskatchewan justice officials conspired to suppress information about Fisher's conviction in the Saskatoon rapes by avoiding the normal process through the Saskatoon courts and having the matter dealt with quietly in Regina instead.

They also ask why the serious Saskatoon offences received more lenient sentences, which resulted in Fisher receiving no additional prison time beyond the Winnipeg sentence.

Fisher received two consecutive sentences of 61/2 years for the 1970 Winnipeg rapes. For three Saskatoon rapes and one indecent assault, he received three four-year sentences and one six-month sentence. All were to be served concurrently with the Winnipeg sentence.

Miller was raped and killed in January 1969.

Greenberg said he didn't ask questions when Saskatchewan Crown prosecutors agreed to the best possible sentence for Fisher.

"I think I got him a good deal. I may have got him an exceptional deal," Greenberg said.

Under questioning by Milgaard's lawyer, Hersh Wolch, Greenberg acknowledged he didn't have any bargaining chips beyond Fisher's guilty pleas when he asked for concurrent sentences.

"Why wouldn't he get another day (beyond the Winnipeg sentence)? Why would (Saskatchewan Crown prosecutor Serge Kujawa) give him, what we called in the old days, 'a kiss?' " Wolch asked.

Greenberg said he didn't know why the prosecutor agreed to his request but said he had done the best he could for his client.

"It made no never mind" to Greenberg or Fisher whether the charges were dealt with in Saskatoon or Regina, Greenberg said.

Greenberg didn't question the Saskatchewan prosecutor's decision to deal with the matter in Regina because that was where the people he had been writing to were located.

Disposing of the charges in Regina was made possible by the Crown's decision to proceed by direct indictment instead of the more common consent committal, the inquiry heard.

Greenberg doesn't remember if he asked for the direct indictment or if it was suggested by the Crown.

Normally, an accused would have to make a first appearance in provincial court in the jurisdiction of the crime, where the matter would be adjourned a number of times before a preliminary hearing date was set.

An accused who wanted to plead guilty could enter a consent committal on the first day of the preliminary hearing, waiving the hearing and agreeing to move directly to Court of Queen's Bench, where he could plead guilty in the higher court.

Greenberg wanted to avoid having to travel repeatedly to Saskatoon and didn't want to drag out the process, risking the possibility of the prosecutor changing his mind about the concurrent sentence.

Greenberg agreed with the Saskatchewan prosecutor to take a different, faster route: A direct indictment, which required the signature of the justice minister, allowed the matter to go to Queen's Bench without going to provincial court or booking a preliminary hearing.

Defence counsel usually oppose direct indictments if the client intends to plead not guilty, but Greenberg said a preliminary hearing offered no benefit to Fisher.

In a November 1971 letter to then-premier Allan Blakeney, who was the acting attorney general in Roy Romanow's absence, Kujawa requested the direct indictment.

Fisher never mentioned Gail Miller or a murder and Greenberg had no reason to question Fisher's desire to have the matters dealt with quickly, he said.

Greenberg added he never spoke with any Saskatoon police about the disposition of the charges and can't remember any discussion with Saskatoon Crown prosecutor Bobs Caldwell.


Killer to take stand at Milgaard inquiry

SASKATOON -- The man whose deviant rape and murder of a nursing aide in 1969 set off a chain of events that robbed David Milgaard of 23 years of his life will be on a witness stand in Saskatoon this week.

Larry Fisher will face questions about the murder of Gail Miller at a public inquiry tasked with finding out why Milgaard was wrongly convicted and jailed for the crime.

Fisher's testimony could be key, not only because he was the person that was actually convicted of the murder, but because he attacked several other women in Saskatoon both before and after Miller was killed.

Fisher, however, was not linked to those crimes until after Milgaard was already convicted. The Milgaard family maintains that investigators kept Fisher's convictions quiet so as to not cast doubt on the case they had already made against Milgaard.

Milgaard's mother, Joyce, said she hopes Fisher's testimony will somehow lend credence to her long-held theory.

"I think it would be a wonderful opportunity for Larry Fisher to turn out to be a hero," she said in an interview with The Canadian Press.

But, she adds that she's not expecting that to happen.

Fisher is the 91st witness to either testify or have previous statements read into the record at the $8-million inquiry, which began sitting in January. Justice Edward MacCallum is expecting to hear from about 50 witnesses still.

"Larry Fisher has relevant evidence to give on a number of different subject matters," said Doug Hodson, the lawyer who acts on behalf of the inquiry.

"He is the person who has been convicted of the rape and murder of Gail Miller, which is an important part of our inquiry."

Special arrangements have been made to have Fisher brought in from the prison in B.C. where he is serving a life sentence for Miller's murder. He will wear shackles and be accompanied by two RCMP officers.

It will be the second time that Fisher, 56, has been on the stand to face questions about Miller's murder.

The first time was in 1992, when the Supreme Court reviewed Milgaard's conviction after a very public campaign by his mother to have him freed.

By that time, Milgaard's family had raised questions about Fisher's possible involvement in Miller's murder, questions backed by Fisher's ex-wife Linda, who said she had suspicions about her former husband.

Fisher denied his involvement at that time. Still the Supreme Court ruled there was enough doubt surrounding Milgaard's conviction that he should be released from prison.

It wasn't until 1997 that Fisher was conclusively linked to Miller's murder through DNA tests done at a lab in Britain.

He was convicted on the strength of that evidence at his trial in 1999 and has been behind bars ever since.

The inquiry has already heard from police officers whose records from the time indicate the serial rapist operating in Saskatoon at around the time Miller was killed could also be responsible for the murder.

But police focused on Milgaard after a friend came forward saying he saw blood on his clothes the morning of the murder.

Milgaard was a 16-year-old hippie passing through town on a road trip with three other friends that morning. The inquiry has heard how, after several interviews with police, each of the friends began to implicate Milgaard.

Their testimony, which has since been either recanted or never repeated, led to Milgaard being charged and convicted.

Joyce Milgaard has been at the inquiry almost every day and said it's been tough re-living the case.

She said it's been particularly hard watching investigators justify their actions at the time.

"It's been a very difficult time being here and hearing all the 'I did nothing wrong,' because hopefully the inquiry is supposed to pull out what went wrong so it wouldn't happen to others," Milgaard said.

"The way it is turning out, it's like nobody did anything wrong and that is not what we need to hear. We need to hear what went wrong."

MacCallum cannot find criminal or civil fault with his findings, but he will be able to make recommendations to prevent similar mistakes from happening in the future.

Joyce Milgaard will get a chance to take the stand herself at some point as the inquiry wraps up. So will her son, although Joyce said David wants nothing to do with the hearings.

"He doesn't - want to know anything about it," she said. "Why put him through more?"


Larry Fisher Chronology

(CP) - Larry Fisher's involvement in Gail Miller's murder and the subsequent wrongful conviction of David Milgaard (names of rape victims are protected by a publication ban):

Oct. 21, 1968: Victim 1 is raped by Fisher in a residential area near downtown Saskatoon around 10:30 p.m.

Nov. 13, 1968: Victim 2 is raped by Fisher in the same area in the early evening.

Nov. 29, 1968: Victim 3 is indecently assaulted by Fisher near the University of Saskatchewan in Saskatoon around 9:30 p.m.

Jan. 31, 1969: Gail Miller is raped and murdered in the area near where Victim 1 and 2 were attacked at around 6:45 a.m.

Jan. 31, 1970: David Milgaard is convicted of Miller's murder.

Feb. 21, 1970: Victim 4 is raped by Fisher near where Miller was murdered at around 9 p.m.

July 1970: Fisher goes to work in Fort Garry, Man.

Aug. 2, 1970: Victim 5 is raped by Fisher in Fort Garry.

Sept. 19, 1970: Fisher is arrested while raping Victim 6 in Fort Garry. He confesses and later pleads guilty to the two Manitoba attacks. He also mentions attacking women in Saskatoon.

Oct. 22, 1970: One of the lead detectives involved in the Miller investigation travels to Winnipeg to interview Fisher, who admits to attacking victims 3 and 4. Fisher is eventually charged with all four attacks in Saskatoon.

Dec. 21, 1971: Fisher is transferred back to Saskatchewan where he pleads guilty to all the attacks in a Regina court, not in Saskatoon.

Jan. 26, 1980: Fisher is released from prison. Two months later he is arrested for raping and nearly killing a woman in North Battleford, Sask. He is sent back to prison on an attempted murder charge.

Aug. 28, 1980: Fisher's ex-wife Linda goes to police with her suspicions surrounding Fisher possibly killing Miller. The investigation is not re-opened.

Jan. 16, 1992: Milgaard's conviction is reviewed by the Supreme Court. By this time, Milgaard's lawyers have publicly raised questions about Fisher. Fisher testifies and denies involvement in Miller's murder. He volunteers DNA, but experts conclude that no conclusive results can be obtained from Miller's clothing. Still, Milgaard is freed on the grounds there is enough reasonable doubt to question his conviction.

July 18, 1997: A new round of DNA testing, done in Britain, clears Milgaard and points to Fisher. Fisher, who finished serving his time for the other attacks in 1994, is arrested and charged.

Nov. 22, 1999: Fisher is convicted of Miller's murder on the strength of the DNA evidence. His subsequent appeals are denied.


Fisher to take the stand today

SASKATOON -- Larry Fisher, who allowed David Milgaard to suffer 23 years in prison for Fisher's worst crime, today will face the commission of inquiry looking into the wrongful conviction.

Fisher will have to answer questions about his activities on the day he killed 20-year-old nursing assistant Gail Miller, when he appears at the hearing in a crowded hotel meeting room less than two kilometres from the alley where Miller's body was found on a bitterly cold morning in January 1969.

Fisher, 56, is likely to be asked for his perspective on events recounted by others so far during the inquiry, which began in January.

Evidence has been heard that Fisher and Miller caught the same 7 a.m. bus at 20th Street and Avenue O as she headed to her job at City Hospital and he to the university campus where he was working on construction of the new Education building.

The bus driver has said a regular rider, who wore a hard hat, didn't ride the bus on the day of the murder. Police investigators who followed that lead were misdirected to another rider, who eventually was eliminated as a suspect. They failed to recognize the significance of Fisher's hard hat when they spoke with him at the bus stop on the Monday morning after the Friday murder.

A woman sexually assaulted by Fisher has said he wore a hard hat when he attacked her; another said she remembered his orange work boots.

In 1980, Fisher's ex-wife, Linda, told the police she had accused him of the murder during an argument, causing him to fall silent and look guilty. Another witness has said he heard through mutual friends that Linda had said Fisher came home that morning with blood on his clothing.

Fisher also is likely to be asked about his admission of having groped five or six young, female strangers on the streets in Winnipeg in 1970.

A Winnipeg police officer has said Fisher told him about those offences but that the police had not received complaints from the women involved. The officer passed the information on to Saskatoon police who went to Winnipeg to interview Fisher.

The Miller murder file contained a complaint from a young Saskatoon woman on the day of the murder, who was approached by a stranger a few blocks from the murder scene. He ran his hands up and down her thighs before running away. Years later, that woman recognized Fisher as her assailant when she saw his photograph in a Toronto newspaper, she told the inquiry.

Fisher will be spared having to describe the three rapes and an attempted rape he committed in Saskatoon before Miller's death and after Milgaard was convicted of the murder, commissioner Justice Edward MacCallum ruled last week.

Fisher's movements and statements on Jan. 31, 1969, are said to have been overlooked or ignored by police and so fall within the commission's mandate to examine the death investigation, the wrongful prosecution of Milgaard and whether the case should have been reopened when new information came to light, MacCallum ruled.

Parties to the commission may ask Fisher about his movements until Milgaard's Jan. 31, 1970, conviction.

As for Fisher's activities after the conviction, parties with standing must stick to questions about the activities which police and justice officials were aware of and which were relevant to the re-opening of the investigation, MacCallum said.

Fisher's other sexual assaults are relevant because of allegations that the Milgaard investigation should not have been concluded nor his prosecution proceeded with until the common perpetrator theory had been eliminated, MacCallum said.

However, the circumstances of those assaults are known. They were outlined in a 1971 letter from Saskatoon's deputy chief of police to the deputy attorney general. Fisher pleaded guilty to them in Regina on Dec. 21, 1971.

Details of the assaults have been reviewed at the inquiry through victim statements, police reports and their testimony at Fisher's murder trial and at this inquiry.

Fisher dragged his victims into back alleys, forced them to remove their clothing and raped them. He threatened some of them with a knife and sometimes took articles of clothing or money.

• A 22-year-old was raped near 18th Street between avenues G and H shortly after 10:30 p.m. Oct. 21, 1968.

• A 17-year-old was raped in the early evening Nov. 13, 1968, near 18th Street between avenues E and F.

• A 19-year-old was dragged into an alley near Wiggins Avenue and Temperance Street and told to undress. Fisher was scared off by a car that drove into the alley, preventing a rape.

• On Feb. 21, 1970, a 17-year-old was raped in a yard in the 200 block of Avenue V South around 9 p.m.

The inquiry has also heard similar details about two rapes Fisher committed in Winnipeg on Aug. 2 and Sept. 19, 1970.

He was caught during the last of those assaults. He later pleaded guilty and was sentenced to 13 years in prison. After pleading guilty in Saskatchewan, he was sentenced to four years for each of the three rapes and six months for the attempted rape. All of those were to be served concurrently to each other and to the 13-year term, resulting in no extra prison time.

Fisher was granted parole in January 1980. Three months later, he raped a woman in North Battleford, stabbing and slashing her in the process.

He was quickly arrested and in June of that year, was convicted and sentenced to 10 years in prison.

It was two months later that his ex-wife went to the Saskatoon police station in the middle of the night and told them she suspected Fisher in Miller's death. The information was never acted upon.

Fisher was released in May 1994 and remained free until July 1997, when he was arrested in Calgary after new DNA tests implicated him in Miller's murder.

He was convicted in November 1999 after a six-week jury trial in Yorkton and was sentenced to life in prison. His appeal to the Saskatchewan Court of Appeal was dismissed in 2003 and he was denied leave to appeal to the Supreme Court of Canada in August 2004.

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