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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page twenty

Justice Edward P. MacCallum

Milgaard ordered to testify
MacCallum doesn't accept post traumatic stress argument

David Milgaard has been ordered to testify before a lawyer for the commission of inquiry into his wrongful conviction, or lose his standing at the inquiry.

Milgaard's testimony is to be videotaped in Vancouver on March 6, inquiry commissioner Justice Edward MacCallum said Wednesday.

MacCallum denied Milgaard's request to write answers to written questions.

The order complies, instead, with a request from lawyers for police, prosecutors and Larry Fisher, the man who is now serving a life sentence for the same murder Milgaard was convicted of committing.

MacCallum said he was reluctant to accept the argument that Milgaard has post traumatic stress disorder.

He said he would not have granted the accommodation to Milgaard to testify without appearing at the inquiry if counsel for other parties with standing had not suggested it.

Milgaard, 54, has said since last fall that he doesn't want to appear before the commission and that the thought of it makes him physically ill.

His therapist, Joel Grymaloski, has testified that Milgaard would be harmed by having to answer questions about his ordeal because it triggers painful memories and sometimes causes a flight response and impulsive behaviour.

MacCallum noted Milgaard gave paid presentations about his story to schools and universities in the 1990s and has made public accusations against Saskatchewan's Justice Department.

"It has not been satisfactorily explained to me why David Milgaard, who has functioned adequately in other venues, both public and legal, should find it so upsetting to testify at this inquiry that he would suffer emotional harm or perhaps bolt," MacCallum said.

Milgaard signed an undertaking promising to appear if the commissioner found him fit to do so.

His lawyer, Hersh Wolch, said he cannot be sure that Milgaard will testify, despite the possibility he will lose standing, which gives his lawyer the right to question the parties involved in his conviction and long incarceration.

"If it happens, it happens. But to have an inquiry into how the system failed David Milgaard and then have it attended by Larry Fisher (right) and not David Milgaard is kind of bizarre," Wolch said.

MacCallum rejected Wolch's claim that Milgaard has been hospitalized as a result of testifying about his conviction in the past. Neither Wolch, Grymaloski, nor psychologist Patrick Baillie, produced records of such hospitalizations, MacCallum noted.

Milgaard has issues with persons in authority, MacCallum said, adding that is the more likely reason why he doesn't want to testify.

"The point of the questions will not be whether Mr. Milgaard killed Gail Miller, but whether his words or actions led the authorities to believe he did, or at least to suspect him; and secondly whether they should have led to an earlier reopening of his case," MacCallum said.

Sometimes deeply traumatized children or women must testify in court about intensely personal matters because the public interest demands it, he said.

"We would not have required Mr. Milgaard's testimony if we did not believe that the public interests required it," MacCallum said.

Milgaard's mother, Joyce Milgaard said she is glad he won't have to testify in the public hearing room.

"I'm very grateful that he's accepted this idea. I hope that David will go for it," she said.

At the same time, she is sorry he will have to delve into his memories.

"Although the commissioner doesn't seem to understand that David gets physically sick when he talks about it, I've seen the results. If we try to get anything, try to talk to David about what's going on out here at all, it's just like a wall is erected. He gets sick. I just don't want to go there," she said.

Commission lawyer Doug Hodson said he hopes to question Milgaard just once, but if parties have other questions, he may have to return to ask those.

Milgaard trial turned on judge's error: Tallis

A mistake by the judge at David Milgaard's 1970 murder trial led to "a devastating turning point," when witness Nichol John's damning statement was put before the jury, Milgaard's former lawyer testified Thursday.

Calvin Tallis told the inquiry into Milgaard's wrongful conviction that John was supposed to be a star witness for the prosecution.

But John, one of two friends travelling with the then-16-year-old Milgaard on a road trip, refused to repeat earlier allegations she made against Milgaard.

She had signed a statement saying she saw Milgaard grab a girl and stab her, and saw him put a purse in a garbage can.

But at the preliminary hearing and the trial, John said she couldn't remember what happened.

That refusal led Crown prosecutor Bobs Caldwell to use a new section of the Canada Evidence Act pertaining to the use of prior inconsistent statements to cast doubt on a witness's credibility.

Caldwell and Tallis both thought the trial jury should leave the room while they questioned John about the damning statement.

Tallis said he wanted to show the judge the circumstances in which John gave the statement because it might reveal she felt pressure or was led to implicate Milgaard in the murder.

He wanted to ask John about being questioned by more than one police officer, being brought to Saskatoon from Regina and kept in police custody for two nights, being driven around the scene of the crime by police, being interrogated by a Calgary polygrapher who showed her the victim's bloody dress and being placed in the company of witness Ron Wilson the day he gave an incriminating statement to police.

Tallis could also have shown that John had previously denied memory of the murder while under oath at the preliminary hearing and had originally said Milgaard didn't do it, Tallis said.

If he had been allowed to show that to the judge without the jury present, Tallis could have argued that it would be unsafe for the jury to hear the contents of the statement, he said.

However, Justice Alfred Bence ruled that the prosecutor should cross-examine John about the statement in front of the jury.

The Saskatchewan Court of Appeal later ruled in agreement with Tallis and Caldwell and said Bence had erred. However, the Appeal Court ruled the error was not significant enough to reverse the verdict.

The Appeal Court laid out a set of guidelines for applying that section of the Canada Evidence Act, which have become known as the "Milgaard rules."

Bence's decision was disastrous for the defence, the inquiry heard.

Instead of hearing John say only that she remembered that their car got stuck, Milgaard and another boy sought help, came back and then they went on their way, the jury heard details of a murder.

The judge told the jury to disregard the details they had heard and consider only whether the statement showed John was untruthful when she said she didn't remember.

The negative impression given to the jury was compounded by the judge's obvious skepticism of her claim of forgetfulness, Tallis recalled.

As Caldwell led John through the damning statement, Bence interjected questions of his own, more than once demanding that she should be able to remember seeing the act if she had signed a statement about it.

John maintained she did not remember. Bence more than once ordered her to stop crying.

Tallis said the judge's directives to John sounded like the admonitions of a father and became increasingly stern, revealing a "high degree of skepticism," which probably influenced the jury.

Bence asked John if she had spoken with anybody after giving the statement, which Tallis thought gave the impression the judge thought Milgaard or someone from his side had influenced her to back away from her allegation.

Tallis said he made sure to establish she had not spoken to anyone from Milgaard's side.

When Tallis asked questions to bring out the circumstances under which John gave her statement, Bence asked questions that, Tallis said, "tended to minimize the atmosphere I created."

Instead, the atmosphere that developed during John's testimony helped bolster the credibility of Ron Wilson, who had given the incriminating statement to police, Tallis said.

By the end, Milgaard was in a far worse position than he should have been, suggested Doug Hodson, counsel for the inquiry. Tallis agreed.

Tallis said Milgaard's position would even have been better if John had adopted the incriminating statement, because he could have cross-examined her on the weaknesses in it.

He said as it was, Tallis couldn't ask her to explain things she said she didn't remember.

He said he also could not ask her about a polygraph interrogation she took because he didn't want the jury to think she had undergone a lie detector test.

By that point, Tallis said he could not even hope that John would co-operate with him and indicate she had been pressured because the jury might think she was lying to protect Milgaard, he said.

"This was a devastating turning point. . . . The reference to that statement and some of the crucial contents, in light of the testimony of Mr. Wilson, probably marked a turning point in the proceedings," Tallis said.

Former Milgaard lawyer Asper seeks standing at inquiry

David Asper

David Asper, the lawyer who represented David Milgaard as he sought to have his case reviewed by the Supreme Court of Canada in the late 1980s and early 1990s, has applied for standing and funding at the commission of inquiry into Milgaard's wrongful conviction.

Asper has been called as a witness to the inquiry and has been asked to review many documents in preparing to give evidence.

He is affected by the inquiry because other parties have or are likely to take issue with statements he made while representing Milgaard, Asper's application states.

He also brings to the inquiry "the unique perspective" of a defence lawyer who "had to overcome frustrations, challenges and obstacles before justice prevailed for his client," it states.

Asper also proffered his expertise as a senior executive of CanWest Global Communications Corp., noting that questions have been raised at the inquiry about the appropriateness of using the media in advocating for Milgaard in the period being considered by the commission.

CanWest owns newspapers and television stations, including The StarPhoenix and Global television in Saskatoon.

In requesting funding, retroactive to Nov. 22, 2005, the application states that some parties to the inquiry were, "seeking to justify their conduct or roles in the wrongful conviction of Mr. Milgaard and in so doing, to cast aspersions upon those involved on Mr. Milgaard's behalf in overturning the conviction."

Asper did not think the inquiry would look into his performance as a person who "acted to liberate, rather than incarcerate," Milgaard, the application says.

As of Jan. 30, Asper's lawyer, Donald J. Sorochan, had already logged 70.1 hours of his own time, and 43 hours of two of his staff. The commission's funding guidelines for witness lawyers provides only 16.3 hours for the work done up to that time, it states.

Commissioner Justice Edward MacCallum has not yet ruled on the application.

Appeal courts need more powers:
former Milgaard lawyer Calvin Tallis

Appeal courts should have greater power to overturn "unsafe" verdicts, says Calvin Tallis, David Milgaard's former lawyer who retired last year as a judge of the Saskatchewan Court of Appeal.

After Milgaard was convicted in 1970 of murdering Saskatoon nursing assistant Gail Miller, Tallis appealed on the grounds the trial judge erred when he allowed the jury to hear the contents of a witness statement that the witness, Nichol John, no longer adopted.

John had signed a statement saying she saw Milgaard stab a woman, but when questioned at the preliminary hearing and at the trial, John said she couldn't remember what happened.

Justice Alfred Bence allowed Crown prosecutor Bobs Caldwell to cross-examine John about the contents of the statement and then declared John a hostile witness in front of the jury.

Bence later told the jury they weren't allowed to consider the contents of John's statement.

The Appeal Court found Bence had erred, but said the error was not significant enough to allow it to overturn the jury's verdict of guilty.

"I have long thought the standard of review is too restrictive under that section of the (Criminal) Code," Tallis said, referring to the Appeal Court's limited ability to say that a verdict is unreasonable or cannot be supported by the evidence.

"Even if the Court of Appeal has a lurking doubt about the conviction, that is not sufficient to warrant intervention," Tallis said in response to the question from Brian Beresh, who represents Larry Fisher at the inquiry.

Tallis said much attention has been paid to trial judges in wrongful conviction cases and not enough on the role of courts of appeal.

If, after careful review of the record, members of the Court of Appeal "are left with such a sense of unease and disquietude that they feel the verdict is unsafe, then there ought to be the power to intervene," Tallis said.

As it was, the decision of the Appeal Court was "a hollow victory," because it didn't overturn the conviction, Tallis said.

Tallis had little to say about the law as it pertains to an accused person's decision to testify in his own defence.

Tallis had advised Milgaard not to testify because he knew Milgaard would be cross-examined about things that would make him look bad before the jury, such as about his drug use and his admission that he considered stealing a woman's purse when he stopped and asked her for directions.

Tallis agreed with Milgaard's lawyer, Hersh Wolch, that Milgaard would be damned if he did testify and damned if he didn't.

Milgaard's failure to testify was counted against him at the Court of Appeal, Tallis agreed.

"Isn't there something wrong with the system or some problem, when a truly innocent person is better off not testifying?" Wolch asked.

"Unfortunately, that's the way the system presently works," Tallis said, noting lawyers still have a responsibility to advise clients on whether to testify.

Wolch pointed out that Regina Crown prosecutor Serge Kujawa dealt with rape charges against Larry Fisher within weeks of arguing against Milgaard's appeal and before the Appeal Court rendered its decision.

DNA was used to help convict Fisher in Miller's death in 1999. Milgaard was released from prison in 1992.

Wolch asked Tallis if Kujawa ever told him about the rapist who had confessed to attacking women in the neighbourhood where Miller was murdered and at around the same time. Tallis said he was not told.

Tallis also said he thinks the law could be changed to require evidence to be kept so that it can be tested in the future when science has progressed.

He also endorsed the idea of having a well-funded, independent criminal case review board and of creating a code of ethics for expert witnesses that emphasizes that their duty to the court overrides their duty to the party that calls them.

Asper fought 'war': Milgaard's liberty was up against reputations of 'bad guys': ex-lawyer

David Milgaard's former lawyer, David Asper, felt he was fighting a "war of liberation" and his enemies were the people who had put Milgaard in prison and those who kept him there.

Asper represented Milgaard from 1986 until just after the Supreme Court of Canada set aside his conviction in 1992.

By then, Milgaard had spent 23 years in prison for the murder of 20-year-old Gail Miller, who had been raped and stabbed to death. DNA evidence proved Milgaard's innocence in 1997 and helped convict serial rapist Larry Fisher in 1999.

Asper said Wednesday it is regrettable that the system placed Milgaard's lawyers in a position where they fought with no rules, other than those which govern lawyers generally, and had to place Milgaard's right to liberty ahead of the reputations of those who had put him in prison and kept him there.

". . . Measured against other interests, I think we came to the conclusion that the liberty interest prevails," Asper said. "If there was damaging information about someone else, about a reputation, for example, that became subrogated to the interest of liberty.

"It is highly regrettable, and I do regret, that rightly or wrongly, the system that we faced put us into the position of having to resort to these means. I wish it didn't have to be that way and I wish there was another way and maybe in hindsight, there could have been another way, but this was as we saw it," he said.

Asper, now the vice-president of CanWest Global and chair of the National Post newspaper, on Wednesday was granted standing at the commission of inquiry.

Commissioner Edward MacCallum found that Asper's witness testimony about viewing certain witnesses, police and lawyers as "bad guys" might provoke a reaction that could be interpreted as an attack on his character or reputation.

"In view of the sometimes open hostility which certain counsel and witnesses have displayed in this inquiry, I must acknowledge the unlikelihood that the 'enemy,' in Mr. Asper's metaphor, will turn the other cheek," MacCallum said.

MacCallum said he will require more information before ruling on whether to grant Asper funding for his lawyer.

Asper said he began with faith that the justice system would acknowledge it was operated by fallible humans and that those with the power to correct the mistakes would do so.

Instead, he met intransigence at every step of the way, he said.

"When we realized that we were not going to get co-operation, there was not going to be an acceptance of the fallibility of the system, then the gloves came off," he said.

Asper said he was provoked by the Justice Department's 11-month delay in acting upon Milgaard's first application for a review, but "hostilities" had already begun.

"The prelude to war had begun by then," he said.

The war required identifying "the bad guys," and bringing in the media to take their story to the Canadian public, he said.

Asper was of the view that Milgaard's accusers and prosecutors had defamed him by utilizing "the instrumentality of the state" to incarcerate him for something that he hadn't done.

"The people with the power and authority to do something about it weren't doing anything about it. In my opinion that made them effectively complicit," he said. "I determined that we needed the people of Canada as our allies.

"In order to co-opt the people of Canada we needed to make our case and take certain approaches that would be calculated to appeal to people's sense of dignity, of freedom, of liberty and of justice."

Utilizing the media meant having to single out "bad guys," he said.

They included Saskatoon police detective Eddy Karst, who was a main investigator on the case, identification officer Joe Penkala, Crown prosecutor Bobs Caldwell, federal Justice Department officials Eugene Williams and William Corbett, Asper said.

Some information that has come to light at the inquiry has caused Asper to regret some of the actions they took while operating in the dark, he said.

"We had to make some choices and I regret that those choices had to be made, but we had placed the freedom of an individual ahead of the reputation or other less important interests, on balance," he said.

Corbett, a senior member of the Department of Justice, "embarrassed himself" publicly when he referred to those who believed in Milgaard's innocence as being equal to those who believed that Elvis Presley was still alive, Asper said.

Asper gave journalists "pretty much everything we had," and hoped they would be inspired to do their own investigations, he said.

"We challenged them to find fault, and if none, then help us free David."

The risk was that the media would conclude their claim was frivolous and be critical, which could defeat Milgaard's efforts, he said.

As well, if Milgaard were guilty, the media could find out, he said.

In going to the media, there were no courtroom rules about what information was admissible.

Asper said they were concerned the media attention might undermine their legal efforts but they thought they could overcome that.

"I do believe in democracy and I do believe in the power of the people and I do believe that if we took our case and . . . yelled it loud enough and enough times that we would prevail."

Asper pained by documents hinting at killer

David Milgaard's former lawyer, David Asper, said it is painful to realize he had documents hinting at convicted rapist Larry Fisher's involvement in the 1969 stabbing death of Saskatoon nursing aide Gail Miller, but did not realize their significance.

Asper told an inquiry into Milgaard's wrongful conviction Thursday that interview transcripts obtained from journalist Peter Carlyle-Gordge in 1986 indicated Fisher had a history of violent behaviour. Yet, despite clues that were later evident, Fisher managed to slip beneath the radar until 1990, when an anonymous tipster phoned Milgaard's lawyer, Hersh Wolch. "As counsel, we had Fisher at that moment. We had a rapist living in the basement of (Milgaard's accuser Albert) Cadrain's home and missed it . . . It's painful to see that," said Asper, who worked on Milgaard's case for Wolch's Winnipeg law firm.

Milgaard was wrongfully convicted of murder in Miller's death. He was cleared by DNA evidence only after serving 23 years in prison. He had always maintained his innocence. Fisher, who lived near the crime scene, was convicted in 1999 of Miller's murder. Milgaard demanded an inquiry investigate why he was wrongly convicted.

Asper, now vice-president of Can-West Global Communications Corp. and chair of the National Post, took over the Milgaard file in 1986. He worked on the case for the next six years, culminating with acting as cocounsel for Milgaard at his 1992 Supreme Court of Canada review, which overturned Milgaard's murder conviction.

Cadrain told police Milgaard had blood on his clothes when he came to his house -- where Larry and Linda Fisher were living at the time -- the morning of the murder.

In interviews with Carlyle-Gordge in the early 1980s, however, Cadrain, his mother, Estelle, and his brother, Dennis, noted Fisher was a "gangster type" -- a criminal who had been caught for previous rapes. Estelle Cadrain had also mentioned Fisher's conviction for rape.

Despite those comments, Carlyle-Gordge did not consider Fisher a possible suspect in Miller's murder, Carlyle-Gordge told the inquiry last year.

Asper said at the time his firm obtained the transcripts, he didn't think anyone believed anything Cadrain said. Nor did they think at the time that they would be required to provide an alternate suspect in their application for a case review.

Carlyle-Gordge had seen a police report made within days of the murder, in which Fisher, a construction worker, had been questioned at the bus stop where Miller usually got on. Fisher had given his address, and said he had been at work on the morning in question. A month later, after Milgaard and activities at the Cadrain house became suspect, police did not make a connection to Fisher, several former officers have previously told the inquiry.

Carlyle-Gordge tried to find Linda Fisher in hope that she might remember something about the activities of the teenagers upstairs on the morning of the murder. He placed a classified ad in the StarPhoenix in March 1983 seeking her.

He received replies from Linda Fisher and from her thencommon-law husband, Bryan Wright, but did not follow up on them. By that time, Carlyle-Gordge was removing himself from the case after three years of unsuccessful efforts to help Milgaard. He gave his materials to Joyce Milgaard and moved to England for several years.

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