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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page seventeen

T.D.R. 'Bobs' Caldwell

Milgaard prosecutor had questions about murder

The Crown prosecutor who had David Milgaard convicted of a murder he didn't commit said he had unanswered questions about how the 1969 murder happened but he proceeded with the case, in part, because the police investigation had provided evidence to prove all the elements of the offence.

Bobs Caldwell, 71, told the Milgaard inquiry Monday that he never did receive a satisfactory explanation of how Gail Miller's dress top had been removed and her coat put back on before she was stabbed.

"That was one of the things I simply couldn't understand; not that it's up to me to solve it," Caldwell told commission lawyer Doug Hodson.

"I never had it explained to me in a form that I could suddenly say that's how it happened," he said.

Caldwell also said he never saw a police document which outlined their theory of the crime.

That theory was written down when two friends of Milgaard maintained he was never out of their company long enough to have committed the rape and murder.

Within weeks of the theory being discussed by senior police officers, the two friends, Nichol John and Ron Wilson, had changed their stories and provided statements that covered the points in the police theory, the inquiry has heard.

The theory document was found among Caldwell's files on the case, but he said he doesn't know how it got there. He said the files were somewhat reorganized after they left his possession.

When he reviewed the files years later, "this document stuck out as something I hadn't seen," he said.

Over the years, Caldwell's files were handed to various justice officials as Milgaard's case made its way to the Supreme Court and later when the RCMP looked into Milgaard's allegations of a police cover-up.

Caldwell also said he didn't know about similar rapes that had occurred in the area around the time of the murder or that police had originally suspected the murderer was that same rapist.

(That so-called common perpetrator theory turned out to be correct but it was abandoned after Milgaard was identified as a suspect in the murder.)

The unusual arrangement of Miller's clothing appeared to conflict with a one-time statement from eyewitness Nichol John, who said she saw Milgaard grab a woman's purse and then jab her with a knife. John's police statement said Milgaard then took the girl around a corner.

Caldwell said he didn't consider whether the dress top was down when John said she saw Milgaard jab Miller with the knife.

He thought it was possible the jabs John saw never penetrated her coat and that the stabs through the coat happened later, when Milgaard and the victim were out of John's view.

The mystery didn't cause him to doubt John's story, Caldwell said.

Caldwell also said it didn't make sense for a person to rape and murder someone, then return to a car that was stuck in the snow.

"The last way I would do that is to run to a stuck car," he said.

"You'd want to understand the evidence you had but I didn't have an explanation," he said.

Caldwell wasn't troubled by witnesses who contradicted witness Albert Cadrain's allegation he'd seen blood on Milgaard's clothing.

A man at a motel where Milgaard obtained a map, within minutes of the murder, didn't see blood on his clothes.

Nor was blood seen by a couple, Walter and Sandra Danchuck, who encountered the group of teens in the hours after the murder but before they arrived at Cadrain's house.

Caldwell said it is not unusual for witnesses to remember things differently from each other and the motel employee could have been mistaken about the time.

Caldwell showed that he was fair to Milgaard by calling the Danchucks to testify even though their evidence tended to exculpate Milgaard.

He said he had to review and analyse the police findings and reach his own conclusions.

"You'd have to be alert to any tunnel vision on behalf of the investigators and maybe the prosecutors in due course. You should evaluate the thing and watch for some policemen who can't stand anyone who's charged, say, with impaired driving. You'd be just alert to whether they're doing their job properly or not," he said.

Caldwell said that, generally speaking, he looked for holes in the Crown's case and ensured elements in the indictment had been covered off. In the course of that he satisfied himself a case should proceed to trial, he said.

"I would never close my case until I had some evidence on each of those things. . . . I had a careful way of proving I'd done all those things, strong or otherwise, before I closed the Crown's case.

"I was the one responsible for the case getting to trial in good or presentable shape."

Where a witness's credibility might come into play, Caldwell said he looked over briefs of law from previous cases.

Caldwell had discretion to stay the charge if main witnesses were "very unreliable" or if there were missing items or missing witnesses, he said.

Around 1983, Caldwell allowed a lawyer working on behalf of Milgaard's mother, Joyce Milgaard, to examine his file on the Milgaard prosecution.

Caldwell also allowed journalist Peter Carlyle-Gorge to spend two or more days reading those files as part of an investigation into famous Canadian trials.

MacCALLUM HAS CONCERNS

Justice Edward MacCallum, commissioner of the Milgaard inquiry, on Monday took issue with media coverage of the hearings, saying some parties' arguments have been reported as fact.

Last week James Lockyer, Joyce Milgaard's lawyer, asserted that a federal government lawyer was biased in his questioning of Linda Fisher, who had earlier gone to police to report her suspicion that her ex-husband was the real killer of Gail Miller.

Lockyer's points were laid out in a StarPhoenix article and may have been featured in some broadcast news reports.

MacCallum noted that many people's only information about the inquiry comes from the media and he expressed concern that conclusions may be drawn before all the evidence has been heard.

"One must be patient. No issue can be said to be fully canvassed until the last witness has been heard," he said.

"It is obvious to me that the basis for some of the theories I am hearing lies more in inference than in direct evidence," he said.

He also took issue with parties with standing commenting on a witnesses's testimony before the witness is finished testifying or before they've taken the stand.

"I perceive a threat to the integrity of the commission's work. . . . I must decry what I regard as an abuse of the privileges of standing and funding.

"If parties wish to indulge themselves in running commentary through the media, let them do so as private citizens, not as parties with standing," MacCallum said.

"It matters what the media reports about the evidence at a public inquiry," he said.


Witness not pressured: Milgaard prosecutor

The Crown prosecutor in the David Milgaard case on Tuesday denied pressuring a teenage witness to make his testimony more incriminating.

Bobs Caldwell was responding to a question from Milgaard commission lawyer Doug Hodson about an allegation made by Ron Wilson, who recanted his incriminating testimony in 1990.

Wilson, who was 17 in 1969, has said that during an interview prior to Milgaard's 1970 trial, Caldwell pressed him on how long he and Milgaard were away from Wilson's car. That time window was important because it was when Milgaard was alleged to have raped and murdered nursing assistant Gail Miller.

Caldwell denied the allegation on Tuesday.

He said he was not troubled that witnesses changed their stories because their later stories fit with known facts in the case, and it was not unusual for witnesses to begin with untruths.

He rejected the early, non-incriminating statements of Nichol John and Ron Wilson in favour of those they provided after they were questioned by a Calgary polygraph expert. In those statements, John said she saw Milgaard stab a woman and Wilson said Milgaard admitted to the stabbing.

Caldwell said he thought John may have experienced hysterical amnesia because of witnessing the stabbing, which could explain why she didn't remember seeing it when she was first questioned.

He said he continued to believe John's statement after she refused to repeat it to him in three later meetings and in court because he thought she was afraid of Milgaard.

Caldwell recalled an interview with her in his office, where she ran from the building, giving him the strong impression she was terrified to testify.

He said his belief was bolstered when, just before Milgaard's preliminary hearing, other witnesses told him John had said she saw everything and didn't know why Milgaard didn't kill her, too.

The other witnesses said John also told them, as they all waited in a room at the courthouse, that she wasn't going to say anything in the courtroom, Caldwell said.

The inquiry into Milgaard's wrongful conviction also heard Tuesday that Caldwell had possession of a lab report about forensic testing of evidence from two rapes that occurred in Saskatoon in the months prior to Gail Miller's death.

Caldwell has said he doesn't think he was aware of the rapes, and he was unaware police originally thought the rapist was responsible for Miller's death.

The lab reports about the October and November 1968 rapes were stapled along with other lab reports on the Miller murder investigation.

Correspondence shows Caldwell sent defence lawyer Calvin Tallis the lab reports, but it is possible Caldwell did not give Tallis the rape reports because the document has a wavy line drawn diagonally through it and the word "omit" in a circle.

There is also a note on the document in Caldwell's handwriting indicating the document belonged to a different file.

Caldwell said he doesn't know if he omitted the report before or after sending the lab reports to Tallis.

Milgaard's supporters have said that if his defence had been aware of the other rapes, it could have cast doubt on the case against Milgaard.

Caldwell's files include a list of witnesses whose evidence indicated Milgaard was not guilty and which he disclosed to the defence.

Caldwell met with Tallis prior to the preliminary hearing and agreed to send him those witness statements and police reports.

The documents show Caldwell told Tallis about an early police suspect and showed Tallis the police report that mentioned the suspect.

On the same police report, which listed several people interviewed by a detective just days after Miller's death, was a reference to a conversation with Larry Fisher at the bus stop where Miller usually boarded the 7 a.m. bus.

Fisher's address, which was the same as Albert Cadrain's, was noted on the same document.

By that time, the address was a key location in the murder investigation.

Caldwell said Tuesday Fisher's name didn't mean anything to him at the time and he didn't notice the address.

Caldwell couldn't remember if he gave Tallis the entire page or just the part about the early suspect.

Miller's wallet was found on the boulevard a few doors from Cadrain's house, which indicated the killer had been in the area. Milgaard visited the Cadrain house the day of Miller's death and Fisher lived in the basement, but police have said they didn't realize he lived there and never made the connection to the construction worker noted on the detective's report.

At the time, Fisher had already committed the two rapes but he had not been caught, had no criminal record and was unknown to the police.

Milgaard spent 23 years in prison before he was released in 1992. DNA evidence was used to prove his innocence in 1997 and to convict Fisher in 1999.

The commission of inquiry is looking into the murder investigation, the prosecution of Milgaard and whether the case should have been reopened as new information came to light.


Inquiry studies 'Milgaard rules'

The Milgaard inquiry will examine the then-unusual rules of evidence that were used by the prosecution to let the jury hear a damning statement that witness Nichol John refused to repeat at David Milgaard's 1970 murder trial.

Later this fall, the commission of inquiry will examine Section 9.2 of the Canada Evidence Act, which has become known in legal circles as the "Milgaard rules."

That section of the act was used by the Crown to cross-examine John on a previous statement she had given, an 11-page, May 24, 1969, statement in which she said she saw Milgaard stab a woman.

At the trial, John said she didn't remember what happened that morning.

Crown prosecutor Bobs Caldwell was allowed to cross-examine her on the statement in front of the jury for the purpose of showing the jury that John was not being truthful when she said she didn't remember. The jury wasn't supposed to consider the contents of John's earlier statement, just that she had at one time claimed to remember what happened.

After Milgaard was convicted, he appealed to the Saskatchewan Court of Appeal, based on the way the rules of evidence had been applied.

"The Court of Appeal concluded the trial judge had not applied it correctly in every respect. There was one part that the court should have done differently, but that it did not affect the outcome, was the court's ruling," commission counsel Doug Hodson explained.

The section may have been applied in cases previous to Milgaard, but that was the first time it was addressed by a Court of Appeal, which produced a written decision on how it should be interpreted, Hodson said.

That ruling has been applied for many years since and used as a guide to dealing with witnesses who have given previous inconsistent statements.

Milgaard inquiry commissioner Justice Edward MacCallum informed parties Thursday that the commission has researched the section and the case law since 1970 and has assembled a brief for the use of all the parties.

MacCallum told them they needn't spend any further commission money on legal research that is already being done by the commission itself.


Joyce Milgaard says judge's threat 'unbelievable'

Joyce Milgaard risked annoying the commissioner hearing the inquiry into her son's wrongful conviction, saying Wednesday she feels "intimidated" by him and adding Canadian people "will be ashamed" by the proceedings in Saskatoon.

"At this time I feel so intimidated by the commission, the commissioner, actually, that it's hard to speak to the press. But I just feel compelled to respond," Milgaard said. "I can't abandon my fight for David after doing it for 36 years.

"There seems to be no understanding of what David's been through," she continued. "Larry Fisher has funding and standing and I have to sit here and listen to the commissioner threaten to take away my son's standing? It's just unbelievable. I think Canadians will be ashamed to see what is happening here in Saskatoon."

She was responding to commissioner Justice Edward MacCallum's ruling Tuesday that David Milgaard must promise to appear at the inquiry or have his standing suspended until he does.

MacCallum issued the ultimatum in response to David Milgaard's remarks at a Monday news conference, where he said he won't appear at the inquiry and won't talk about his wrongful conviction.

MacCallum took issue with David Milgaard's comment that he wanted nothing to do with the inquiry and, in effect, that the commission would be discredited in the public eye if he were subpoenaed to appear.

"I am determined to continue with the business of this inquiry thoroughly and impartially. Obviously my task is complicated by distractions of this kind. Challenges to the authority of the commission, such as this, can be ignored only at the risk of loss of public confidence," MacCallum said Tuesday.

Hersh Wolch, who represents David Milgaard, defended him Tuesday by citing medical advice. Wolch said Milgaard has been advised to avoid reliving the trauma of 23 years of wrongful imprisonment for murder and five more years of public skepticism about his innocence, before he was exonerated in 1997. DNA evidence was used to prove his innocence and to convict Fisher in 1999 of murder in the 1969 Saskatoon death of Gail Miller.

MacCallum said he was originally going to suspend Milgaard's standing and funding immediately pending an undertaking by Milgaard that he would appear, but in light of Wolch's remarks, he granted Milgaard two weeks to provide the undertaking.

David and Joyce Milgaard each have standing and funding at the inquiry and are represented by different lawyers.

In January this year, MacCallum granted Joyce Milgaard funding for travel and accommodation while attending the hearing, saying the presence of one Milgaard family member was reasonably necessary, particularly in the phase of hearings that examines whether the case should have been reopened in the years after Milgaard's conviction in 1970.

At the time, MacCallum said David Milgaard could expect to have his expenses paid because he is in a separate class, as the subject of the wrongful conviction. On days when he does not attend, his funding could be applied to Joyce Milgaard, MacCallum ruled.

In that decision, MacCallum wrote: "Indeed, her remarkable effort deserves to be termed a crusade, but it is over. The public inquiry is not a continuation of her crusade. The inquiry belongs to the public, not to Mrs. Milgaard, nor has she been entrusted with its conduct."


Former prosecutor thought Milgaard a risk if paroled
Bobs Caldwell wrote letters to parole board, inquiry hears

Bobs Caldwell, the Crown prosecutor who handled David Milgaard's 1970 trial, this week denied deliberately withholding from the defence information that could have cast doubt on Milgaard's guilt.

Caldwell also denied several other allegations of wrongdoing that were made by Milgaard supporters after his 1992 release from prison, following a Supreme Court of Canada review.

Caldwell completed his eighth day on the witness stand at the Milgaard inquiry Thursday, the last day of a week marked by tension which began after Milgaard made his first appearance in the hearing room only to say he wouldn't come to the inquiry.

Milgaard held a news conference in the hearing room before Monday's proceedings began to draw attention to the cases of two other wrongfully convicted men who are still fighting for compensation.

Though Milgaard's position has previously been that he would honour a subpoena, he said at the news conference he would not come and suggested the inquiry would look bad if it issued the legal order for him to appear.

The next day, an angry commissioner Justice Edward MacCallum ordered Milgaard to promise he would appear as a witness or lose his standing and funding. A party with standing can have a lawyer cross-examine witnesses on his behalf.

According to Milgaard's lawyer, Hersh Wolch, away from the news conference Milgaard discussed with commission lawyer Doug Hodson the possibility the commission could grant him some accommodation, considering the damaging health effects that could be caused by his reliving the trauma of the wrongful conviction.

MacCallum gave Milgaard until Nov. 8 to provide the undertaking he will appear.

On Wednesday, Milgaard's mother, Joyce Milgaard, made a public statement saying she felt intimidated by the commissioner. She said there didn't seem to be any understanding of what her son has gone through.

MacCallum made no mention of Joyce Milgaard's remarks Thursday and the inquiry continued, as it has all week, with Hodson resuming his cross-examination of Caldwell.

Caldwell, now 71, said he did not learn in late-1970 that a man named Larry Fisher had admitted committing other sexual assaults in the Saskatoon neighbourhood where nursing assistant Gail Miller was raped and murdered in January 1969. Those assaults had been committed in the months prior to Miller's death.

Nor did Caldwell know police had once linked those sexual assaults to Miller's death, he said.

"I never received their entire file of raw material," Caldwell said.

Caldwell has maintained that police never drew to his attention their early common perpetrator theory, and that he did not see any significance in references to rapes, which were in documents found in the prosecution file. Those documents had handwritten notes by Caldwell indicating they were not related. Caldwell has said he didn't think there was any connection.

Caldwell said he believed Milgaard killed Miller. He believed witness Nichol John's May 24 statement, in which she said she saw Milgaard stab a woman, was true, and an earlier, exculpatory statement was untrue, he said.

The inquiry reviewed a Winnipeg Free Press news article from July 17, 1970, that erroneously said Caldwell withheld witness Ron Wilson's original, exculpatory statement from Milgaard's defence lawyer, Calvin Tallis.

In that article, Milgaard's lawyer, David Asper, said it would be "serious misconduct" by the Crown to withhold such information.

In fact, Caldwell did provide that statement to Tallis and Tallis questioned Wilson about it at the trial, the inquiry has seen, through correspondence and trial transcripts.

The inquiry also heard this week that Caldwell took the rare step of writing to the National Parole Board three times in the 1970s urging it to never give Milgaard parole.

Caldwell said he wrote the first letter in 1972 after seeing a parole board booklet that encouraged judges, magistrates and police to forward information that would help them in their decisions.

He included photographs of Miller's body in the snow and at the autopsy. He also encouraged board members to obtain psychiatric reports about Milgaard and told them where they could get them.

Caldwell wrote another letter in 1974 urging parole board members to get the psychiatric records, and again in 1977, when he sent the death photographs again.

"I cannot over-emphasize the danger which I think Milgaard would present to other persons if he were to have his freedom, even on a short and temporary basis," Caldwell wrote.

He compared Milgaard to David Threinen, a child molester who killed four Saskatoon children in 1975, three years after he was acquitted of murdering a 16-year-old Lethbridge girl.

Caldwell wrote that the Threinen case was an example of the "inadvisability of granting freedom to dangerous persons."


Shopping cart story may upset coverup notion

It's been a rare week of surprises at the Milgaard inquiry.

The most jarring of these was the towering rage of Justice Edward MacCallum, the normally inconspicuous inquiry commissioner. MacCallum routinely goes for days without saying a word except "Good morning," and "Adjourned." This week, however, he all but spontaneously combusted.

MacCallum was furious, and justifiably so, at David Milgaard, the central figure in this protracted legal drama, and at Milgaard's lawyer, Hersh Wolch. They incurred the commissioner's wrath by suggesting at a news conference that Milgaard, who demanded the inquiry, who requested and accepted taxpayer funding for legal representation at the inquiry, won't himself deign to testify. It didn't help that they made this provocative announcement in the very hotel meeting room where the inquiry was sitting.

This amounted to a direct attack on MacCallum's authority. A witness and his lawyer don't tell the judge how it's going to be; it's the judge who tells them. A fuming MacCallum made this abundantly clear.

A second surprise was MacCallum's subsequent leniency. As angry as he'd been, I'd have thought he might charge someone with contempt. I feared I might even be charged myself, just for being in the same room. Instead, the commissioner allowed Wolch two weeks to secure from Milgaard an undertaking to appear when he's called. In other words, Milgaard gets two weeks to agree to do what he's supposed to do anyway. After all that steam, I'd expected a louder whistle.

A third and more significant surprise came during the testimony of Bobs Caldwell. Now retired, Caldwell was the Crown prosecutor in Milgaard's 1970 wrongful conviction. Now we learn it was also Caldwell who personally saved from impending destruction the evidence that 27 years later would exonerate Milgaard. This seriously undermines allegations of a Crown conspiracy to conceal the truth.

Caldwell recalled how exhibits from the trial were for years stored in a shopping cart parked in a cluttered, chicken-wire enclosure in the basement of the Saskatoon courthouse. Then one day came an order from the chief justice: He wanted evidence secured and the basement cleaned up. Exhibits from cases long since closed were to be thrown out.

Caldwell and his Crown colleagues spent a night going through mouldering boxes and file folders. Most went into the dumpster. There was one item, however, that Caldwell wanted from the Gail Miller case, this being the notorious murder for which Milgaard was wrongfully convicted. Caldwell thought he might one day give a speech about the trial, to service clubs, say. To help him prepare, he wanted a large chart he'd had made up, itemizing key points of evidence. This chart, he presumed, was stuffed in the shopping cart with all the other exhibits from the grisly crime.

Since he didn't have time just then to go through the individual exhibits, he ordered they all be preserved. A note to that effect was placed on the shopping cart. He'd find later what he wanted and dispose of the rest. Except he never got around to it.

"As with many of my projects," he noted ruefully.

The shopping cart and its contents remained for years as he left them. In the meantime, while Milgaard languished in jail, forensic scientists learned to match ever smaller and older samples of DNA. It was in 1997 that they finally cracked the case wide open. From that dusty shopping cart would come the victim's coat that yielded DNA excluding Milgaard and implicating the true culprit, a serial rapist named Larry Fisher.

But for Caldwell unintentionally saving this evidence, long after the last appeal was exhausted, Milgaard would never have been exonerated, Fisher would never have been convicted and Caldwell might be lecturing service clubs about his famous prosecution instead of defending himself at a public inquiry into a wrongful conviction.

His story of the shopping cart casts justice authorities in a somewhat less sinister light. If they were involved in a coverup, you'd think they'd have destroyed the damning evidence instead of hanging onto it for almost 30 years, apparently on a whim.


No deals made with prosecution witnesses
Caldwell

Less than two weeks after 17-year-old Craig Melnyk testified at trial that David Milgaard re-enacted the murder of Gail Miller at a motel room party, Melnyk received an unusually light sentence for an armed robbery, the Milgaard inquiry heard Wednesday.

But former Crown prosecutor Bobs Caldwell said it never occurred to him that two youths facing their own criminal charges would think they might get easier treatment if they testified for the prosecution in Milgaard's 1970 trial.

"It didn't convey itself to me, if I may put it that way. I didn't come out with that caution to myself," Caldwell said Wednesday at the inquiry in response to questions from Hersh Wolch, who represents Milgaard.

"That would be something to look at and have in one's mind as a caution," Caldwell said.

Melnyk and George Lapchuk surfaced unexpectedly on Jan. 18, the night before the trial was set to begin, after another Crown witness said they had told him about the re-enactment.

Melnyk was awaiting trial on an armed robbery committed in August 1969, while he was serving a suspended sentence for a previous conviction. He pleaded guilty in early February 1970 and was sentenced to six months in jail. His co-accused was sentenced to 2 /2 years in a penitentiary.

A Regina newspaper article reported that Melnyk's sentence was thought to be the shortest ever handed out in Regina for an armed robbery.

Caldwell phoned Arnold Piragoff, the Crown prosecutor handling both Melnyk's and Lapchuk's matters in Regina, Caldwell's handwritten notes show. Caldwell said he phoned to make sure the witness court dates did not conflict with the Milgaard trial dates.

Milgaard was ultimately convicted of first-degree murder in the January 1969 death of Gail Miller in Saskatoon. He spent 23 years in prison before he was released in 1992. DNA evidence proved his innocence in 1997 and helped convict Larry Fisher in 1999. The commission of inquiry is looking into the murder investigation, the prosecution of Milgaard and whether the case should have been reopened as new information came to light.

Caldwell told the inquiry witnesses faced with criminal matters might think they would get easier treatment, even if they hadn't been given such a promise.

Wolch also noted that Caldwell has said he believed witness Ron Wilson told the truth when he changed his story and implicated Milgaard after being questioned by a Calgary polygraph operator because Caldwell trusted the science.

Wolch pointed out that the polygraph was not used to test Wilson's new statement. The polygraph operator, Art Roberts of the Calgary police, has previously said the polygraph showed Wilson was deceptive when he said he didn't know who killed Miller.

The polygraph charts and Roberts' notes on his interrogation of Wilson were not used at the trial and have never been found when sought for use at subsequent hearings.

Wilson recanted in 1990, saying he was pressured into giving the false statement against Milgaard.

Wolch also asked Caldwell about a letter he wrote to Roberts after Milgaard was convicted, in which Caldwell told him about the outcome of the trial.

In the letter, Wolch suggested, Caldwell seemed proud of the fact he had managed to put before the jury a damning statement by Nichol John, who refused at the trial to repeat what she had told Roberts and a Saskatoon investigator about seeing Milgaard stab a woman.

Caldwell said his wording was unfortunate and that he intended only to inform Roberts on the outcome of the case.

Wolch pointed out Caldwell also wrote to Miller's family and stated, "I appeared on this application before a panel of three judges of the Supreme Court of Canada."

Caldwell acknowledged that he didn't appear on the application but was a spectator in the courtroom as fellow prosecutor Serge Kujawa handled the matter. Caldwell said he didn't intend to give the wrong impression and had made a poor choice of words.

Caldwell was also cross-examined Wednesday by Alex Pringle, who represents Calvin Tallis, Milgaard's defence lawyer at his 1970 trial.

Caldwell acknowledged that lack of disclosure and his proper use of a new section in the Canada Evidence Act made it difficult for Tallis to cross-examine witnesses.

Usual disclosure practices at that time did not require the Crown to produce police reports and witness statements, Caldwell agreed.

Tallis did not receive investigators' reports that described John's and Wilson's early, exculpatory statements as believable or later reports that show major changes in statements following three days in police custody in Saskatoon in May 1969.

"If defence had been able to see how those statements developed they would have had a much better chance of breaking down these witnesses in crossexamination," Pringle suggested.

"I would think so, sir," Caldwell replied.


Bobs Caldwell testifying at the Milgaard Inquiry

Caldwell admits he acted improperly

Former Crown prosecutor Bobs Caldwell admitted Thursday he acted improperly in 1989 when the federal Justice Department was investigating David Milgaard's application to have his case reviewed by the Supreme Court of Canada.

Caldwell wrote a letter to federal government lawyer Eugene Williams, who was investigating the matter, in which Caldwell suggested Joyce Milgaard's account of her son's first-degree murder conviction bore little resemblance to the crime under review, the Milgaard inquiry heard.

Under cross-examination by David Milgaard's lawyer, Hersh Wolch, Caldwell acknowledged he had offered an unfavourable opinion. "OK. It may be an example of bad judgment," Caldwell said. "You were just plain wrong to do that," Wolch said. "Yes," Caldwell said. By that time, Caldwell was a prosecutor for the federal Justice Department. He said he helped in Williams' investigation by telling him which witnesses were still available and identifying the files that would be helpful.

Caldwell has said it would have been improper for him to try to influence the investigation and had denied ever doing so. He denied Thursday feeling he was on the same side as the federal investigator.

Also Thursday, the commission watched a video produced by Milgaard's lawyers for the 1992 Supreme Court of Canada review of Milgaard's conviction in the 1969 death of Gail Miller. Milgaard was released in 1992 after spending 23 years in prison. DNA evidence was used to prove his innocence in 1997 and to convict Larry Fisher in 1999.

The video, which showed a re-enactment of the Crown's improbable theory of the crime, was filmed at the actual locations. It featured Global television reporter Rena Montgomery, who is a longtime actress in Saskatoon community theatre, as Gail Miller.

Montgomery has covered the inquiry since it began in January.

The re-enactment shows Miller coming out of her rooming house on Avenue O and walking down a snowy sidewalk toward a bus stop on 20th Street, where Crown witnesses Ron Wilson and Nichol John said Milgaard's car stopped and asked her for directions.

The re-enactment of the Crown theory shows that by the time the vehicle drove to the end of the block, made a U-turn, drove into the alley behind a funeral home and got stuck, and by the time Milgaard and Wilson got out and tried to push the car before walking off in different directions to seek help, Miller would long since have arrived at the bus stop.

But Caldwell said the video depicts a "possible bottom-level alternative to the facts as I understood them.

"I'm not sure, sir, that I see that it's impossible, based on what we had at the time of the trial," he said.

Caldwell also faced questions about his basis for writing to the National Parole Board three times in the 1970s, giving the board unsubstantiated allegations about Milgaard and misrepresenting the findings of psychiatrists and psychologists who had interviewed him over the years.

Wolch suggested Wednesday that Caldwell's letters showed he had turned into "David Milgaard's tormentor." "You wouldn't leave him alone. You had to keep going at him," Wolch said. Caldwell said he didn't agree. He said Milgaard is the only person he ever wrote to the Parole Board about. In a 1972 letter, Caldwell recounted a story told by Crown witness Albert Cadrain that was not presented at trial. Cadrain said his story could be corroborated by another youth, but that youth did not corroborate it and no charges were ever laid in connection with it. Caldwell presented the bizarre story to the Parole Board as if it was fact.

He also told the board that Milgaard's psychiatric history showed he was psychotic and a grave danger to the public.

However, the inquiry reviewed a summary of psychiatric reports about Milgaard that showed the opposite.

Psychiatrists and psychologists who spoke with Milgaard over the years found that he did not have a criminal nature and did not fit in with prison culture.

In 1977, a psychiatrist wrote, "He made it clear there should be no reason for supposing he would change his mind on the issue of his innocence or guilt. . . . Milgaard displayed the usual amount of impatience of a young person eight years into a life sentence, but he showed no hint of aggression or ill feeling towards the authorities."

In 1979 another wrote, "He does not suffer from any of the major psychotic illnesses. . . . He does not demonstrate the features of psychopathic personality."

The reports show that the years of wrongful imprisonment eventually took a toll on Milgaard's mental health.


Inquiry hears Milgaard prosecutor unaware of key witness document

If Crown prosecutor Bobs Caldwell had wanted to suppress a document that indicates police knew the incriminating things witnesses would say before they said them, he had plenty of opportunity to get rid of it before it was discovered by later investigations, he told the Milgaard inquiry Monday.

Under cross-examination by his lawyer, Catherine Knox, Caldwell said he doesn't know how the unique document got into his files years after the 1969 prosecution that led to David Milgaard's wrongful conviction for murder.

"If you, in fact, had a sinister motive, could you not simply have taken that and ripped it to shreds?" Knox asked.

". . . If you were trying to cover up malfeasance or wrong-doing on your part, you had ample opportunity to destroy these documents rather than find yourself in a position where you have to lie under oath, didn't you?" she said.

"All kinds of opportunity, over years. Anytime I felt like it," Caldwell said.

He said he never saw the document, which has been dubbed, "the script document," until 1990, when the RCMP were reviewing the case in response to Milgaard's application for mercy from the justice minister.

When he saw the files after they had been retrieved from storage in Regina, some of the documents had been reorganized and the script document was in a new file folder someone else had started.

Last week, Joyce Milgaard's lawyer, James Lockyer, questioned how Caldwell could be certain he had never seen the document before, considering the large number of papers in the Milgaard prosecution file.

Caldwell reiterated Monday that the script document stood out because it was so unusual. Prosecution files normally consist of standard types of police reports, witness statements and medical and laboratory reports.

There is no indication the document was in Caldwell's file in 1981, when lawyer Gary Young looked through it on behalf of Joyce Milgaard, Caldwell said. He thought Young might have asked about it if it had been in the file at the time, he said.

Nor did journalist Peter Carlyle-Gorge acknowledge seeing it when he went through the file in 1983, Caldwell said.

"I can't think he would have missed it," Caldwell said.

CBC researcher Sandra Bartlett also saw the file in the late 1980s and never said anything either, he said.

The five-page document, which is believed to have been authored by Det. Sgt. Raymond Mackie, a lead investigator in the case, lays out a theory of how Milgaard could have raped and murdered Gail Miller. It included information that was known by the investigators, such as the fact Miller's purse had been placed in a garbage can in the alley.

It also included conjecture, such as the attack beginning as a purse-snatching that escalated to murder.

The document ended with a recommendation that Milgaard's companions on the day of the murder, Ron Wilson and Nichol John, should be brought to Saskatoon and subjected to hypnosis or polygraphs, so that "the true story" could be obtained.

The teenagers were brought to Saskatoon in May 1969 and shown where Miller's body was found, the garbage can where the purse was found and were provided other information the police had gathered. Both were kept in police cells for at least one night and were interrogated by a polygraph operator from Calgary.

Up to that time, Wilson and John had said they were never separated from Milgaard long enough for him to have committed the crime, but by the end of the four days in May in Saskatoon, both gave incriminating statements that included points from the theory in the script document.

Also Monday, Caldwell agreed that sexual offences against women were treated very differently in 1969 than they are today and it was not unusual for victims to not be told the outcome of their complaints. There were no victim services and no rape crisis centres in those days, he said.

The Criminal Code sections related to sexual offences were amended in 1982, Knox pointed out. Before then, some police, prosecutors and even judges downplayed the seriousness of many sexual offences against women, Caldwell agreed.

The inquiry has heard that Caldwell saw witness statements from women who had been accosted by a man in the Pleasant Hill neighbourhood where Miller was killed. Those statements had hand-written notes that said "ind (indecent) assault only. Not connected."

Caldwell has said he didn't realize there might be a connection between those assaults and the murder. He never disclosed those statements to Milgaard's defence.

He agreed with Richard Elson, lawyer for the Saskatoon Police Service, that the law about disclosure was unsettled in 1969. The Supreme Court of Canada clarified the matter in the 1991 Stinchcombe decision.

Caldwell also acknowledged to Elson that he worked for the Attorney General of Saskatchewan, not the police, Nor did he take direction from the police when deciding whether witnesses were credible or their evidence relevant.

Caldwell agreed that when RCMP and municipal police departments work co-operatively, they should share reports and findings. The inquiry has heard that Caldwell never saw three RCMP reports that laid out the early police theory that Miller had been killed by the same man who had sexually assaulted other women in the area in recent months.


Caldwell didn't act improperly, lawyer argues

The actions of former Crown prosecutor Bobs Caldwell, which have been portrayed by lawyers for David Milgaard and his mother as sinister or vindictive, can also be explained as the actions of a prosecutor who really believed Milgaard was guilty of the horrible crime he'd been convicted of, Caldwell's lawyer suggested Tuesday.

Caldwell wrote letters to the National Parole Board because he'd seen a booklet the board published which requested input from judges, magistrates and police, he said during questioning by his lawyer, Catherine Knox.

He based his remarks about Milgaard's character on things he learned in police reports and statements from witnesses who spoke to the police while they focused on Milgaard as a suspect in the Jan. 31, 1969, murder of Saskatoon nursing assistant Gail Miller.

Caldwell said he was considering such things as allegations David used drugs at a motel room party and engaged in sex with a girl while others were in the room.

Caldwell didn't just make up the things he said in the letters, Knox said.

Some of Caldwell's comments in the letters were also based on reports about Milgaard that were prepared by counsellors prior to 1969, the inquiry heard. Those documents are subject to a publication ban because they contain personal family information, much of which is not relevant to the inquiry.

Caldwell has acknowledged that the reports do not indicate Milgaard had a history of violence.

Some of Caldwell's remarks were also influenced by a psychiatric report prepared after Milgaard was convicted and which thus began with the assumption Milgaard had raped and murdered someone.

Caldwell urged the parole board to obtain Milgaard's records for themselves and told them what they needed to do to obtain them.

Knox suggested that things Caldwell said in his letters were unlikely to be false since he expected the board to read the files for themselves.

Nor did Caldwell ever try to hide from Milgaard the fact he was writing to the parole board, he said.

Caldwell also said he didn't have any improper intention when he phoned the Regina prosecutor who was handling charges against two youths who testified for the prosecution that they had seen Milgaard re-enact the murder during a motel room party.

Caldwell said he was probably just making sure their Regina court dates didn't conflict with the Milgaard trial.

He gave Craig Melnyk and George Lapchuk an extra warning to tell their story without trying to help or hurt Milgaard, he said. He did that because he was aware of their criminal backgrounds, he said.

Caldwell's failure to disclose evidence that might have helped Milgaard was "an innocent but unfortunate oversight," Knox suggested.

She also noted that disclosure rules were different in 1969, with today's rules providing far more information to defence lawyers.

Knox also suggested that in 1969 police did not do criminal profiling in which they examined patterns of behaviour, nor was the term "serial" to describe a rapist or murderer then in use.

Knox noted that the student did not mention seeing any blood on her assailant's clothing.

Knox also suggested that in 1969 Caldwell wouldn't have automatically thought police might have influenced a reluctant witness to give a false statement.


Caldwell hurt by allegations, inquiry hears

The Crown prosecutor who handled the case that led to David Milgaard's murder conviction says he is also a victim.

Bobs Caldwell says his reputation was severely damaged by accusations during the years that he suppressed information that could have cast doubt on Milgaard's guilt, that he helped cover up the wrongful conviction and that he improperly intervened with the National Parole Board and in the federal justice department's review of the case in the early 1990s.

But he told the Milgaard wrongful conviction inquiry Wednesday that his suffering didn't match that of Milgaard, who spent 23 years in prison for a crime he didn't commit.

Caldwell denies all of the allegations, but he said he felt there were too many news reports with untrue allegations for him to respond to them all and he has chosen not to react to most of them.

The inquiry has heard Caldwell's explanations for many of the allegations and has seen documents that support many of his defences.

"It was . . . extremely difficult to cope with for me and my family," he said.

People he had known for years looked at him askance and avoided him, he said.

When Milgaard sued him, along with three police officers and fellow prosecutor Serge Kujawa, "it had a cumulative affect after all the other accusations had been made, piled one on top of the other," Caldwell said.

"It was another very serious blow in a series that did happen to me. Of course, the press were all over it. It got to a stage where, in our two-storey house, I would call down the stairs to my wife and say, 'How does the paper look this morning?' and she would often reply, 'Terrible.' "

Milgaard discontinued the lawsuit in 1999 after the provincial government paid him $10 million in compensation.

Caldwell said the respect of his peers and his integrity are precious.

"When everything else, salary, this, that and the other thing, is gone, that is of the utmost importance in every respect," he said.

Caldwell has said he believed the witnesses who inculpated Milgaard in the January 1969 rape and murder of nursing assistant Gail Miller. He has said he didn't know that police had originally suspected that the killer might be the same sexual predator who had been operating in the area in recent months.

There were allegations that he withheld an early, exculpatory statement by witness Ron Wilson, but letters in the files and parts of the trial transcript show that the statement was sent to defence lawyer Calvin Tallis along with other important witness statements, and that Tallis cross-examined Wilson on the statement.

There were numerous reports in the public domain claiming Caldwell had mysteriously kept a knife found at the scene out of the trial, but that has also been debunked by evidence at the inquiry, where documents have been reviewed that show Tallis was aware of a bone-handled knife that was found on the inside stringer of a fence near Miller's body.

The knife was found to be unrelated to the crime and was left out of the case to avoid adding extraneous information that might confuse the jury, Caldwell has said.

Claims that he left out two female witnesses who were at a motel room party where Milgaard was said to have re-enacted the crime are likewise unfair, suggested Catherine Knox, Caldwell's lawyer.

Deb Hall had run away and couldn't be found by the time of the trial, but she did eventually corroborate the stories of the re-enactment made by Craig Melnyk and George Lapchuk, though her interpretation of Milgaard's attitude during the incident was different. Hall thought Milgaard was being sarcastic when he said he committed the crime, while the boys said they thought he was serious.

The other girl, Ute Frank, refused to cooperate with police in 1970 but eventually concurred with Melnyk and Lapchuk.

Caldwell also said he wrote to the National Parole Board on Milgaard's case because he'd seen a booklet it published in which it requested input from judges, magistrates and police. He referred the board to psychological records that he felt indicated Milgaard would be a danger to the public if he was released.

When he learned that DNA tests in the early 1990s proved Milgaard was innocent, Caldwell said he was "floored."

He, in conjunction with Kujawa, who had handled Milgaard's appeals, called a news conference in which they apologized to Milgaard and joined him in calling for a public inquiry.

"Whatever you may have done by oversight or otherwise, you were quite prepared to have the light of public review cast on it by an objective forum. . . . Was that in part because of the many wrong allegations that had been put out over the years against you?" Knox asked.

"Because of the mass of incorrect information that was afloat all those years, a public inquiry was the only way to . . . get to truthful evidence, and we're getting there today," Caldwell said. Caldwell, 71, was excused from the witness stand Wednesday after 15 days of testimony. The inquiry continues today.

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