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Commission of Inquiry into the Wrongful Conviction of David Milgaard

eighteen

It's all a blur. October 24, David Milgaard came to Saskatoon with two other wrongfully convicted — Ron Dalton and the wife of Michel Dumont — to bring attention to the fact that while he had been compensated, several others had not been.

What should have happened? The Commission should have welcomed him, assured him that it was important to get to the bottom of why he was so badly served by the Justice System, and allowed him some time to address the audience.

Instead it was a press circus. David Milgaard said he did not want to go through the refreshing of his memory it would take to answer questions about his actual 23 years of hell. When pressed, he said he would refuse to attend.

Commission Chair Justice McCallum threw an authoritarian snit where he delivered Milgaard an ultimatum — attend OR ELSE! — and threatened to take away funding for counsel which is protecting his interests.

Eventually McCallum backed down and has now set November 19 as the date when David Milgaard must present reasons why he would not attend.

It really looks like McCallum wants to put David Milgaard on trial for a crime for which he has been exonerated.

Saskatchewan has even found a way to get around double jeopardy as it thumbs its nose at Stinchcombe and other sound prosecutorial principles.


Secrecy hampered conviction review: witness

A lack of transparency in the federal Justice Department's 1990 review of David Milgaard's murder conviction contributed to Milgaard supporters' suspicions of a coverup, an RCMP investigator told the Milgaard inquiry Thursday.

"It got out of control. A lot of this could have been dealt with by some good old sit down and let's lay the cards on the table," retired RCMP Staff Sgt. Rick Pearson said.

Milgaard had applied Dec. 28, 1988, to review his first-degree conviction in the January 1969 death of Gail Miller in Saskatoon. The matter was in the hands of federal Justice Department lawyer Eugene Williams, who was based in Ottawa.

Milgaard's mother, Joyce Milgaard, had attracted national media attention to the case, and David was anxiously awaiting word on whether the justice minister would dismiss the matter or refer it to the Supreme Court of Canada.

In February 1990, Milgaard's lawyer, Hersh Wolch, received an anonymous phone tip that Larry Fisher, who was in prison for rape, was Miller's real killer. DNA evidence was later used to prove Milgaard's innocence in 1997 and to convict Fisher in 1999.

Wolch notified Williams, who contacted Milgaard prosecutor Bobs Caldwell, and asked him to see if Fisher's name was in the Miller murder investigation file.

Caldwell found a police report that showed Fisher was one of many individuals questioned in the days after the murder. A paragraph in a multi-page police report showed an officer had talked to Fisher at the bus stop where Miller usually boarded the bus.

Williams contacted Pearson, who worked out of the Saskatoon RCMP detachment, and asked him to look into the Fisher allegation.

Pearson said Thursday he felt Williams did not tell him everything about the Justice Department investigation into Milgaard's claim of wrongful conviction. He thought that might have had something to do with restrictions inherent in the review process, but didn't know for sure.

Pearson asked Williams for background on the matter he was investigating, but Williams apparently did not tell him Fisher had been questioned at a bus stop.

As a result, Pearson learned of it in bits and pieces, thinking at one point that Joyce Milgaard and her lawyer had information they were withholding from him.

Pearson interviewed Fisher's ex-wife, Linda Fisher, who had told Saskatoon police 10 years earlier that she thought Fisher might be the real killer. Saskatoon police had not acted on the information.

By the time Pearson had reached Linda Fisher, he found that Joyce Milgaard and a private investigator had already interviewed her and had taken two statements from her pertaining to Fisher's actions on the morning of the Jan. 31, 1969, murder.

Pearson said he wasn't concerned at first that Joyce Milgaard had spoken to a witness, but as the investigation continued, he found she had gotten to other witnesses before he had, including Fisher's mother. He began to worry that she might influence them or add information to what they knew before talking to him.

When Pearson and Williams decided it was time to approach Larry Fisher in the penitentiary, they learned his sister had already warned him that he was a suspect in Miller's death. That information gave Fisher time to plan his response before the RCMP spoke with him, Pearson said.

Pearson said he tried to remain neutral and maintained a good relationship with Milgaard's lawyers as well as with Williams.

By that time, the spring of 1990, the Milgaards were becoming impatient for an answer to the review application. They were convinced Fisher was the real killer and took their case to a member of Parliament, who stated in a newspaper article that Miller's real killer was serving time in a Saskatchewan jail.

"Much of this issue of the coverup and . . . all of the other issues, it created so much publicity and created so much agony for so many people, could have been adequately dealt with if everyone sat around a table and not let this get out of control like it did," Pearson said. "So there's some transparency issues and some real systemic issues on how this should unfold."

The inquiry now takes a one-week break, resuming Nov. 21, when Pearson will return to the witness stand.


Milgaard promises to appear at inquiry

David Milgaard has promised to appear at the inquiry into his wrongful conviction if the commissioner finds him fit to testify.

Commissioner Justice Edward Mac-Callum ordered Milgaard to provide the undertaking after Milgaard declared at a news conference in October that he would not attend the inquiry and the thought of it made him physically ill.

His lawyer, Hersh Wolch, contends that Milgaard would be harmed by having to recall the conviction that landed him in prison for 23 years for a crime he didn't commit.

Commission lawyer, Doug Hodson, told MacCallum that Milgaard has knowledge of facts that would be helpful the inquiry as it looks into the 1969 police investigation of the murder of nursing assistant Gail Miller and the subsequent prosecution of the 17-year-old. The inquiry is also looking into whether the case should have been reopened when new information came to light.

One area of questioning would be about the discussions between Milgaard and Calvin Tallis the lawyer who represented him at his preliminary hearing and trial, Hodson said Monday.

Wolch has said the commission has access to transcripts from Milgaard's previous testimony at the Supreme Court of Canada review of his case and at examinations for discovery during his lawsuit against police and prosecutors. Some of Tallis's issues were addressed at those hearings, Wolch said Monday.

Milgaard dropped the lawsuit after he was paid $10 million compensation in 1999.

Hodson said he met last week with lawyers representing other parties with standing to find out what subject areas they want to question Milgaard about.

The next day, Hodson met with Milgaard and Wolch at the Vancouver office of Milgaard's therapist, who has diagnosed Milgaard with post-traumatic stress disorder.

"It was a productive interview and, indeed, Mr. Milgaard signed an undertaking," Hodson said.

Now the inquiry awaits Wolch's application to have Milgaard excused from testifying on medical grounds.

"The problem with medical reports is . . . getting a medical report is a trauma. Anytime you interview David, you bring him back to where he was. Most competent doctors do not want to talk to David. They don't want to put him in that position," Wolch said.

Wolch and Hodson have yet to set a date for the application to be heard by the commissioner.


RCMP officer suspected Fisher link, inquiry hears

The RCMP officer investigating Larry Fisher for the federal justice department's review of David Milgaard's first application for mercy hadn't exhausted all avenues before then-justice minister Kim Campbell denied the application, saying there was no evidence linking Fisher to the murder of Gail Miller.

"There was still more we could have pursued," retired RCMP sergeant Rick Pearson told the Milgaard inquiry Tuesday.

Pearson suspected Fisher because of his history as a repeat, violent rapist and because he stalled for months to avoid providing a blood sample, undergoing a polygraph test and giving a sworn statement about his movements in the days around the murder.

If Fisher was innocent of the murder, as he claimed, it seemed likely he would want to clear his name as quickly as possible, Pearson said.

Pearson couldn't rule out the possibility Fisher was innocent but suspicious of police because he had been in prison for most of his adult life.

Fisher shielded himself from the RCMP by insisting they deal with his lawyer, thereby reducing the number of face-to-face meetings Pearson could have with him, Pearson said.

Fisher eventually submitted to a polygraph test in the summer of 1990 but it proved inconclusive, mainly because Fisher was under extreme stress brought on by media reports that named him as possibly being the real killer.

Pearson had sought Saskatoon police files on Fisher's other sexual assaults but found the 20-year-old files no longer existed.

The Justice Department was aware of Fisher's ex-wife's statement that she thought Fisher was the real killer, but her suspicions were not enough to translate into evidence against him, Pearson said.

Federal Justice Department lawyer Eugene Williams, who had headed the review, was also aware of an unnamed prisoner who claimed Fisher had acknowledged some connection to Gail Miller, Pearson's notes show.

Williams had informed Pearson the prison informant was not credible.

Williams was also concerned that Pearson still considered Fisher a suspect after Fisher had denied committing the murder, Pearson's notes show.

In February, 1991, Campbell turned down Milgaard's application, saying, "No guilt or suspicion of guilt can be attributed to Fisher in the absence of some form of evidence linking him to the crime."

Soon after Campbell's denial, Milgaard applied a second time, based on information assembled by an American private investigator, Jim McClosky, whose Centurion Ministries was dedicated to helping people who had been wrongfully convicted.

McClosky had shown that there were similarities between Fisher's sexual assaults and the murder of Gail Miller.

Pearson was called to renew his pursuit of Fisher, but this time to focus on the "similar fact" evidence. Pearson requested an RCMP expert analyze Fisher's known crimes and unsolved crimes in which he was suspected and then to compare them with the Miller murder.

"It was the basis of the suspicion that wouldn't go away," Pearson said.

Also Tuesday, Pearson said he wondered if a strange statement signed by Gail Miller's sister in the weeks after Milgaard became a suspect in the murder was evidence of an alleged police cover up.

Miller's sister, Peggy, gave police a statement in April 1969 saying that Gail had written to Peggy the previous year from Swift Current, saying she was dating a boy called David Milgaard.

When Pearson found the statement in the Miller murder file, he asked Peggy about it and she denied having made the statement. Pearson didn't press her on it because she may have legitimately forgotten having done it and out of consideration for her feelings. "Later on in the investigation when there was talk of coverup by the city police, it did cross my mind. Could this have been part of something that was a cover up activity? "Was there a statement created?" he said. The thought was more curiosity than a serious consideration and Pearson never pursued it further, he said. Det. Sgt. George Reid, who wrote out the statement that Peggy Miller signed, testified at the inquiry in June, where he said he doesn't remember Miller and her mother coming to the police station and giving the statement, but it is true because it is in his report. He would have followed his normal practice of having the witness review each page of her statement and sign each, he said.


Milgaard supporter accepts apology over book

A stalwart Milgaard supporter gratefully accepted Joyce Milgaard's apology Tuesday after she wrote incorrectly in her book that he had applied for the police reward offered during the Gail Miller murder investigation.

A Mother's Story

Howard Shannon said he was devastated when he read the untrue allegation in A Mother's Story: The fight to free my son David, a book written by Joyce Milgaard and journalist Peter Edwards in 2000.

"This morning Mrs. Milgaard apologized to me. I gratefully accept that apology," Shannon said.

Shannon had supported Joyce Milgaard's efforts to free David by providing money for a lawyer and sometimes for travel and other expenses. Shannon had also recommended lawyer Tony Merchant, who had worked for Shannon's employer, Maclean-Hunter magazines.

Shannon had also co-operated with a plan by another Milgaard supporter, Roger Renaud, to offer Milgaard a job in hopes it would improve his chances of getting parole.

When the book was being written, Joyce Milgaard had information that someone connected to Maclean-Hunter, the company David had also worked for, had applied for the reward. She assumed it was Shannon.

"I thought maybe the reason he was putting in the money was because he felt guilty for applying for the reward (and that) in hindsight he thought he shouldn't have done that," Joyce Milgaard said in an interview Tuesday.

"I had all sorts of suspects and suspicions," she said.

Shannon testified at the Milgaard inquiry Tuesday that Merchant had done five times more work for Milgaard than he charged for. Shannon said Merchant's and Renaud's dedication to Milgaard's cause were an inspiration to him.

Joanne McLean, Joyce Milgaard's lawyer, apologized publicly on her behalf.

McLean showed a letter of application for the reward from a Prince George, B.C., resident who had bought a subscription from David shortly before he turned himself in to RCMP there.

McLean suggested that Joyce made the mistaken assumption based on incomplete information.

Joyce Milgaard said she felt sick when she realized her mistake just days ago. She and McLean searched the commission's computerized document bank and found the letter from the customer who claimed he had called police about the teenager after buying a subscription from him.

"(Shannon and his wife) have been so supportive. The first thing I did when he came was apologized to him because I felt so badly and couldn't believe that I'd been labouring under this misapprehension all these years," Joyce Milgaard said.

After Shannon testified, he went to Milgaard and gave her a long hug. The pair then stood talking, with hands clasped, for several minutes.

The commission of inquiry is looking into the investigation into Gail Miller's January 1969 death, the prosecution of David Milgaard and whether the case should have been reopened as new information came to light. Milgaard spent 23 years in prison before he was released in 1992. DNA evidence was used to prove his innocence in 1997.

Shannon was a field supervisor for Maclean-Hunter magazine subscription sales. Among the direct sellers he oversaw was the team led by Renaud, who employed 16-year-old David Milgaard.

The first time Shannon met Milgaard was in Saskatoon in April 1969, the day the police took Milgaard in for questioning and to take blood and hair samples. Shannon spoke with his boss about the situation and they decided to fire Milgaard because the police suspicion about an employee looked bad for the company.

But Milgaard rejoined the team in Edmonton a short time later, with his younger brother in tow. Their mother had complained to Shannon's boss that David had been fired without cause and that she would take the matter to the labour board if he wasn't rehired.

Shannon was with Renaud's team in Prince George in May when Shannon received a call from his boss, who had received a telegram that there was a warrant for Milgaard's arrest.

Shannon said he spoke with an RCMP sergeant he knew, who wanted to send out officers to arrest Milgaard, but Shannon convinced him to let Shannon take Milgaard to the local RCMP detachment.

At first the RCMP couldn't find the warrant Shannon told them about and he told them to call the officer he had spoken to on the phone.

"What took place then was unreal," Shannon recalled.

"The police came running around, several of them, about six of them at least, and jumped right over the top of the counter, great big, huge police, pounced on David and myself and they brought out the leg irons and put them around his legs," Shannon recalled, demonstrating.

"They took him away and told me to leave."

It was the last time Shannon saw Milgaard for more than a decade.

That day the radio news reported repeatedly that an accused killer had been captured in Prince George. Shannon said he phoned the radio station and corrected them, saying Milgaard had surrendered voluntarily. Two hours later, two officers arrived at Shannon's motel and told him to get his "bunch of rabble the heck out of the community and do it now."

Years later, Shannon joined Renaud in visiting Milgaard in a Quebec penitentiary, during the years Shannon was helping to support Milgaard's efforts to gain release.

"He was absolutely a young man growing up in the wrong place. I felt compelled to try and get him out," Shannon said.


Milgaard wants to testify at inquiry by responding to written questions

David Milgaard is asking the commission of inquiry looking into his wrongful conviction to allow him to testify by responding to written questions.

His lawyer, Hersh Wolch, filed an application Monday, requesting "an accommodation for the receipt of his evidence" and did not ask that Milgaard be excused from testifying, as he previously intended to do.

"The idea for accommodation came from the commission itself, so that is encouraging," Wolch said.

Parties to the inquiry will be allowed to make submissions to the commissioner, Justice Edward MacCallum, about the application today, said commission lawyer Doug Hodson.

The commission will decide whether Milgaard's psychologist, Dr. Patrick Baillie, will have to testify about Milgaard's health. If so, a date will be set for that next week.

A report Baillie wrote was submitted Monday along with the application for accommodation. The report has been distributed to parties with standing but was not made public.

MacCallum is expected to rule on the application soon after, probably the same day, Hodson said.

Milgaard has previously answered thousands of questions, all of which are available to the commission. Asking him to go over those facts again would only traumatize him, Wolch said.

Records exist of Milgaard's original police interviews in which he told all he remembered about the morning of Jan. 31, 1969, when he and friends were passing through Saskatoon and when nursing assistant Gail Miller was murdered.

Milgaard was convicted a year later and spent 22 years in prison before the Supreme Court of Canada reviewed his case and he was released. DNA evidence exonerated him in 1997 and was used to help convict Larry Fisher of the rape and murder. Fisher is serving a life sentence for the crime.

The commission also has transcripts of Milgaard's testimony at the Supreme Court, where he was cross-examined by lawyers representing the Saskatchewan and federal governments. It also has transcripts of examinations for discovery at Milgaard's 1996 civil suit against prosecutors and police officers. There, the lawyer for former prosecutors Bobs Caldwell and Serge Kujawa asked Milgaard approximately 1,423 questions, the lawyer for former police officers Raymond Mackie and Charles Short asked 903 questions and former detective Ed Karst's lawyer asked him 282 questions.

If the commission or any of the parties with standing have questions that have not already been answered on the record nearer in time to actual events, Wolch is asking that Milgaard receive the questions in writing in advance.

"He's been cross-examined by everybody so many times. Keeping in mind that he didn't do it, what's there to cross-examine him on?" Wolch said to reporters during a break in the hearings.

"If there is something still unasked, let's determine what it is," Wolch said.

Milgaard previously stated that he didn't want to testify at all because the thought of it makes him physically ill. He has changed his position because requesting an exemption would require that he undergo a psychiatric assessment, which is itself a traumatizing event, Wolch said.

"David has been questioned by so many people over the years, all of whom assumed he was a killer and made it a horrible experience, so that just the idea of sitting down and being questioned about his mental state is repugnant," Wolch said.

"The inquiry was supposed to be therapeutic, not to further damage him. That would be ironic if the entire process that was designed to help him, keeping in mind it was part of the (1999) compensation package, would now harm him."

It is possible Milgaard will come and testify in person, Wolch said.

Special consideration has been given to other witnesses at the inquiry. Sexual assault victims have been allowed to testify via closed circuit television and a retired police officer, Elmer Ullrich, was allowed to answer a commission lawyer's questions on videotape from his home in British Columbia. The commission used part of a written statement from him.

Wolch said former federal justice minister Kim Campbell has more to offer the inquiry than has Milgaard.

"She's far, far more important than David is to what we're doing here. I don't think anybody has ever questioned her and she has lots to answer for. She's had no hesitation in writing a book, in which a full chapter is devoted to David.

"(There are) lots of questions she could answer that would be helpful to us on how the system operates. I think she's crucial," Wolch said.

Wolch has asked commission lawyer Doug Hodson to call Campbell.

Hodson said he is still considering calling Campbell.

'There are issues relating to a provincial inquiry and the extent to which it can delve into federal matters. Those things have to be sorted out," Hodson said.

The inquiry heard testimony Monday from one witness, writer Peter Carlyle-Gordge, who investigated the Milgaard case between 1980 and 1993.

Carlyle-Gordge was a Manitoba correspondent for Maclean's magazine who was interested in Joyce Milgaard's efforts to exonerate her son. He became convinced of Milgaard's innocence and eventually spent thousands of hours working on the case, he said Monday.

He developed a "symbiotic" relationship with Joyce Milgaard, he said.

"We were working toward the same goal. . . . I think I was looking for the truth rather than the big story," he said.

He wrote an essay about Joyce Milgaard's efforts, which was published in a 1982 book called The Winnipeg 8: The Ice-cold Hothouse. Carlyle-Gordge acknowledged that there were some inaccuracies in the story.

He returns to the witness stand today.

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