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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page twenty-one

David Asper

Asper receives standing at Milgaard inquiry

A lawyer and media executive who helped David Milgaard get out of prison will be allowed to have his own lawyer present at the inquiry into Milgaard's wrongful conviction.

However, for now he won't be getting any funding.

Commissioner Edward MacCallum ruled Wednesday he would grant David Asper limited standing - which means his lawyer can cross-examine witnesses during a portion of the inquiry - but he'll won't receive public money to cover his costs.

Asper, one of the lawyers credited with helping to free Milgaard in 1992 after the Supreme Court reviewed the case, wanted the inquiry to cover his legal expenses, including expenses incurred since last November.

However, MacCallum said Asper didn't file any material in support of why he should get funding beyond asking for it. For that reason, there'll be no order about money, MacCallum said. The Commissioner added that if Asper files a written application why he should receive funding, he'll consider the matter further.

Standing was a different matter, however.

Asper, part of the family that controls the CanWest Global media chain, said he wanted standing in part because he was concerned some of the participants in the inquiry would try to discredit those who worked to free Milgaard.

MacCallum agreed, saying it was entirely possible that Asper's reputation could be damaged by testimony. He raised the possibility that Asper's own testimony - in which he suggested some witnesses in the Milgaard trial were liars or "bad guys" - might spark a negative reaction from some inquiry participants.

"I must acknowledge the unlikelihood that the 'enemy,' in Mr. Asper's metaphor, will turn the other cheek," MacCallum said.

One time Milgaard lawyer David Asper pained he didn't find real killer sooner

SASKATOON (CP) -- The team working to overturn David Milgaard's wrongful murder conviction could have linked Gail Miller's slaying to the actual killer several years sooner than they did, a lawyer turned media mogul testified Thursday.

On the stand at the inquiry into Milgaard's case, David Asper was taken through records he was given when he began reviewing the file as a young lawyer in 1986. Asper is now a senior executive with CanWest Global, one of the largest media companies in Canada.

Larry Fisher

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

In one transcript, Larry Fisher, who was eventually found guilty of the crime, is referred to as a convicted rapist and a "gangster-type" who lived in the basement of the home where Albert Cadrain lived.

Cadrain was the friend Milgaard was visiting the morning Miller was murdered.

Seeing the transcript caused Asper to pause.

"The passages you just read are very painful to see," he told inquiry lawyer Doug Hodson. "We had Fisher at that moment. We had a rapist living in the basement of Cadrain's home and missed it."

Determining exactly when Fisher should have become a suspect in Miller's 1969 rape and murder has been a big part of the inquiry.

Fisher had committed several rapes in Saskatoon around the time Miller was killed, but he didn't come to the attention of police until after Milgaard was convicted.

Milgaard spent 23 years wrongfully behind bars for the crime until the Supreme Court overturned his conviction in 1992. Fisher was convicted nearly eight years later on the strength of DNA evidence that also exonerated Milgaard.

The transcript read to Asper was from a 1983 interview with Cadrain by journalist Peter Carlyle-Gordge.

Cadrain was the first person to point police in Milgaard's direction, and Carlyle-Gordge met with him as part of an investigation he was doing into the case.

Asper could provide little explanation for why he missed Fisher's name when he reviewed the interview in 1986, only saying that everything Cadrain said had to be taken with a grain of salt.

"The issue with Cadrain was, I don't think anybody believed anything he was saying," Asper said.

"I think that when he refers to Fisher as a 'weirdo' and a 'gangster' and a 'rapist,' probably we didn't take what Albert was saying seriously."

Cadrain was shot and killed in a hunting accident during the 1990s.

So far, the inquiry has heard that Fisher's wife, Linda, went to police with her suspicions about her husband's involvement in 1980. But that was 10 years after Milgaard had been convicted and no followup was done.

The inquiry has also heard that a lawyer working for the Milgaards tried to find Linda Fisher in the early 1980s, but was unsuccessful.

Carlyle-Gordge went as far as taking out a classified ad looking for Linda Fisher, but never followed up the responses he got.

Larry Fisher didn't get linked to the crime in any substantive way until 1990, when the team reviewing Milgaard's case, including Asper, got an anonymous tip that Fisher was the real killer.

This time the lead was followed. Fisher's previous crimes were uncovered and the theory that he could be the killer was taken to the Supreme Court, where Milgaard's conviction was thrown out.

Asper also said Thursday that, in hindsight, there are other things he would have done differently.

He said he would have pushed to hire a professional investigator to co-ordinate a more in-depth examination of the file.

He also suggested the friends who testified against Milgaard at his original trial should have been reinterviewed to clarify their stories.

Milgaard was understandably impatient and even fired Asper several different times only to patch things up.

"He said they moved a mountain to put him in, how come we can't move a mountain to get him out?" Asper recalled.

"He didn't understand the process. I don't think he had any sense of what we were up against."

Asper's testimony was to continue Friday. After that, he is scheduled to come back before the inquiry in April.

Fisher allowed to plead guilty in Regina

Milgaard didn't learn of Fisher's convictions until years later.

Saskatchewan public prosecutors brought Larry Fisher from the penitentiary in Prince Albert to Regina to plead guilty to Saskatoon sexual assaults because it was more convenient, a former prosecutor told the Milgaard inquiry Monday.

David Milgaard's lawyers and supporters have long been suspicious about the circumstances under which the serial rapist who murdered Gail Miller was allowed to plead guilty in Regina to four Saskatoon attacks committed before and after the murder and in the neighbourhood of the killing.

Supporters have alleged the Regina disposition was part of a plan to keep Fisher's conviction secret to avoid casting doubt on Milgaard's conviction for the murder.

Among the parties who didn't learn about the convictions until years later were Milgaard, his lawyer, the rape victims, the Saskatoon police and the Crown prosecutor.

Milgaard spent 23 years in prison for the murder before being released in 1992 after the Supreme Court of Canada set aside the conviction, based partly on the fact that Fisher might have been the real killer.

DNA evidence was used to help convict Fisher of the murder in 1999 and he was sentenced to life in prison.

Kenneth MacKay was a junior employee in the Attourney General's department in 1970 when Fisher's Winnipeg lawyer, Lawrence Greenberg, wrote to Saskatchewan to say Fisher would plead guilty to three rapes and an attempted rape that had occurred in Saskatoon before and after the January 1969 Miller murder.

MacKay's boss was Serge Kujawa, the director of public prosecutions, who handled the inter-provincial matters, but Kujawa assigned the less important aspect of setting up the arrangements for Fisher's court appearance to MacKay.

MacKay had never heard of Fisher before and didn't know anything about the offences until he obtained the details of the charges for Kujawa from the Saskatoon police.

Greenberg arranged for his client to plead guilty to four Saskatoon offences and the Saskatchewan prosecutor asked for no additional prison time beyond the 13-year sentence Fisher received that year for two Winnipeg rapes.

Milgaard's supporters have characterized that plea bargain as suspicious.

MacKay said the 13-year sentence was "very heavy," and said he was not surprised that the judge did not add time to it, especially when compared with a murder sentence that now allows offenders to apply for parole after 15 years.

MacKay was not aware of the Gail Miller murder, which had occurred two years earlier, before he joined the department.

During the 1969 police investigation into Miller's murder, the RCMP, who were assisting the Saskatoon city police, sent detailed reports to Kujawa's office, the commission of inquiry into Milgaard's wrongful conviction heard.

In the reports, RCMP investigators laid out the early police theory that the rapist might be the killer, the inquiry has seen.

Kujawa probably never read the reports, MacKay said.

There would have been no reason to read them while the investigation was ongoing and when Kujawa handled Milgaard's appeal in 1970, he would have relied entirely on the trial transcripts and notice of appeal.

Reading police reports would have needlessly "diffused" Kujawa's efforts, MacKay said.

Although notations on the reports show the RCMP reports were directed by someone in the office to Kujawa, some of them appear to have been dealt with by another prosecutor, Elizabeth McFadden, who made a note to file the reports and initialed them.

MacKay returns to the stand today. Kujawa, who has not been present for most of the inquiry, attended Monday. He is expected to take the stand on Wednesday.

Former prosecutor takes the stand

Serge Kujawa

SASKATOON -- The former director of public prosecutions who dealt with David Milgaard's case within the same three year period as he handled Larry Fisher's guilty pleas for Saskatoon rapes, also handled 1,200 to 1,400 other files during the same period, the Milgaard inquiry heard Tuesday.

Milgaard's lawyers and supporters have alleged that Serge Kujawa realized that Fisher might be the real killer of Gail Miller, the crime for which Milgaard was wrongfully convicted. Milgaard served 23 years in prison, partly because he refused to admit guilt to the National Parole Board.

After the Supreme Court of Canada reviewed Milgaard's case in 1992 and set aside the conviction, Milgaard, his mother Joyce Milgaard and lawyer Hersh Wolch held a news conference where they alleged Kujawa deliberately suppressed information about Fisher's conviction to avoid raising questions about Milgaard's conviction.

They relied upon the statements of Michael Breckenridge, a former employee in the Attorney General's department who said he delivered Milgaard and Fisher files to meetings of Kujawa, Attorney General Roy Romanow and Deputy Justice Minister, Ken Lysack.

Kujawa and others in the Saskatchewan Justice Department have said they didn't make a connection between the two cases. They denied having the meetings described by Breckenridge.

Breckenridge's allegations were investigated by the RCMP in 1993 and could not be proven.

Breckenridge was still in high school at the time when Kujawa was dealing with Fisher's conviction and Milgaard's appeal, the commission heard Tuesday.

Breckenridge worked for the department between 1973 and 1975, after Kujawa had concluded his work on both matters.

As the top ranking prosecutor in Saskatchewan and based in Regina, Kujawa handled about 400 sentencing appeals per year, 30 or 40 conviction appeals and about six trials per year. He also dealt with inter-provincial matters and answered legal questions from prosecutors around the province.

Kujawa said he was not involved in the 1969 police investigation into Miller's murder or in Milgaard's prosecution.

The RCMP assisted the Saskatoon police in the murder investigation and sent detailed reports to the Attorney General's department, where Kujawa worked.

The reports said Saskatoon police suspected the killer was the same person who had recently sexually assaulted three other young women, two of which were in the same neighbourhood. The reports laid out the methods of the sexual assaults showing the similarity to the murder.

Media should leave legal matters alone: Kujawa

Media overstepped bounds

David Milgaard may have had no choice but to go to the media if the justice system repeatedly failed him, a former top prosecutor and outspoken media critic told the Milgaard inquiry Wednesday.

"If that is so and that's true, maybe he or she has no choice but to do that. And maybe the move by the media and everybody else was a thing that society should be grateful for," Serge Kujawa said, responding to a hypothetical question put to him by commission lawyer Doug Hodson.

In the early 1990s, Milgaard's mother and lawyers gave frequent interviews to the media about their efforts to have the case referred to the Supreme Court of Canada for review.

Kujawa objected to the influence such media attention had on the public and on the Justice Department's eventual decision to review the case.

Milgaard spent 23 years in prison for a murder he didn't commit. The case was reviewed in 1992 and Milgaard was released. In 1999, DNA evidence was used to convict serial rapist Larry Fisher of the rape and murder.

“not concerned with guilt or innocence”
--Serge Kujawa

In a 1991 interview with a Winnipeg Sun reporter, Kujawa was quoted as saying he was not concerned with Milgaard's guilt or innocence, but with the media and lawyers "selling us down the river."

"The whole judicial system is at issue -- it's worth more than one person" Kujawa said in the December 1991 article.

The reporter misconstrued his meaning when she paraphrased him saying it didn't matter if Milgaard was innocent, he said Wednesday.

"If I said that, I should apologize because if he was innocent, it does matter. It's very important.

"I certainly never believed that," Kujawa said Wednesday. "I sure hope I didn't say that."

He also apologized for referring to Milgaard as a "kook" in the article.

Kujawa said he doesn't remember saying the word attributed to him.

"If I did, I'm sorry because it's improper for someone in my position to call people crazy names. If I did, I'm sorry I did."

Kujawa reiterated his long-held belief that the media should leave legal matters to those who know them.

"It belonged in the justice system and not the great media system. Justice matters should be dealt with by the justice system, which should admit that it's less than perfect and should be willing to review what has been done and is now questioned," Kujawa said.

The media, "went beyond their competence on one or two occasions," he said.

Kujawa said he didn't take issue with the fact federal justice minister Kim Campbell reversed an earlier decision and ordered a judicial review of Milgaard's case. Instead, he was unhappy that Campbell had been influenced to change her position by public pressure, which resulted from news about the case.

"Who should influence the Supreme Court or the minister of justice to take that step?

"A whole lot of people who were pushing for that kind of inquiry were not qualified to express opinions on that inquiry or the justice system or the legal system and so they shouldn't have been acting as if they had the last word on it.

"I question the validity of that kind of public pressure on a judicial system. That's pressure from an area that doesn't have the information and knowledge and background that the justice system should have," he said.

Kujawa also said he would have helped Milgaard's lawyers gain access to police files in the early 1980s if they had approached him with their concern about a miscarriage of justice.

"I'd have asked the police to help you out as best they can and if they don't give you enough help, come back and we'll see what more we can do," he said.

"It seems like the proper thing to do. When you're working in the Department of Justice you should be just."

Kujawa said he never made a connection between the Milgaard and Larry Fisher files, which he dealt with in 1971.

In 1992, Milgaard's supporters accused him of keeping Milgaard's lawyer in the dark about the Fisher conviction for four Saskatoon sexual assaults, while knowing the information might have been used to overturn Milgaard's conviction.

The public allegations resulted in an RCMP investigation into the possibility of obstruction of justice by Kujawa and other justice officials, including former attorney general Roy Romanow, who later became the premier of Saskatchewan.

A 1994 Alberta Justice Department report on the investigation determined the allegations were unfounded.

Kujawa questions DNA evidence

Former Crown prosecutor Serge Kujawa said Thursday he still isn't sure about the DNA that linked Larry Fisher, not David Milgaard, to murder victim Gail Miller.

"Nothing is perfectly proven and I don't know how the substance that was tested on those clothes got on that. I don't know where it came from," he told the commission of inquiry into Milgaard's wrongful conviction.

Kujawa apologized to Milgaard the day after the DNA findings were released in 1997, but he said Thursday he still thinks it is possible the evidence was tampered with.

"When did it get on? How did it get on? Was it there in '69? Or could it have been put on later?" Kujawa said. "It's a possibility is all I know."

He said he "didn't for a moment" say he thought the DNA wasn't Fisher's. "My only question is when did it get on those clothing. . . . What, if anything was put on them, I don't know and we'll never know," Kujawa said.

Milgaard was convicted of murder in the 1969 death of Miller. Kujawa argued against Milgaard's appeal in 1970 and against his 1971 application for leave to appeal to the Supreme Court of Canada.

He was an outspoken critic of Milgaard's lawyers' use of the media to publicize Milgaard's position as he sought to have his case reopened in the late 1980s and early 1990s.

The Supreme Court set aside Milgaard's murder conviction in 1992. In 1999, the DNA evidence was used to help convict Fisher of Miller's murder.

Milgaard's lawyer, Hersh Wolch, said Kujawa was less skeptical of the flawed evidence against Milgaard than he was of the strong evidence against Fisher.

That reaction is a clear example of tunnel vision, which is often a feature of wrongful convictions, Wolch said.

"You're so convinced of your position that even when, in the light of all this, you get DNA, you still can't face the reality," Wolch said.

Wolch said he doubts the sincerity of Kujawa's 1997 apology to Milgaard, made at a news conference the day after the DNA findings were made public.

The commission reviewed an internal Justice Department memo written the day the findings were made public. The memo reported a conversation that day with lawyer Si Halyk, who represented Kujawa, and Saskatoon prosecutor Bobs Caldwell.

"Si also reports that Caldwell is adjusting to this new reality, but Serge Kujawa is not. Apparently Serge's view is you can get experts to say anything you want and this is just another case of that," the memo said.

"Si thinks he has Serge under control for the time being and will stay in touch with him to make sure he remembers to keep his mouth shut," Murray Brown, then director of appeals, wrote.

On the stand Thursday, Kujawa said: "My apology was, 'I'm sorry Mr. Milgaard that you were improperly convicted. This DNA stuff has proven that you were not the (one) who did it.' And I'm sorry this happened to it but I don't admit to any wrongful or dishonest or improper moves on the part of myself or anybody else that I knew of.

"Therefore it wasn't a complete apology of, 'I'm sorry what we did to you,' because we didn't ever mean to do it. We made a mistake," Kujawa said.

Wolch suggested the mistake resulted from Kujawa rejecting the possibility of Milgaard's defence using the existence of a serial rapist operating in the neighbourhood as evidence to help his case.

"His understanding of similar act evidence at the time could lead to the conclusion by a trier of evidence that he did look at

it and put it aside instead of telling Mr. (Calvin) Tallis (Milgaard's lawyer in 1969)."

Kujawa said the evidence about the other rapes could not have been admitted at Milgaard's trial or appeal.

But Wolch suggested the rules for admitting similar fact evidence would have allowed for the jury to hear about them.

Milgaard was not in the city when those rapes were committed.

The Supreme Court ruled in 1992 that information about the other rapes might have caused a reasonable doubt in the minds of the jurors.

Kujawa has said he didn't know there were other similar rapes until Fisher's lawyer wrote to the Attorney General's office in Regina saying Fisher wanted to plead guilty to four sexual assaults in Saskatoon.

Wolch tried to show Commissioner Edward MacCallum that Kujawa did make a connection but decided it was of no value and so did not give it to Milgaard's lawyer.

Kujawa acknowledged Thursday there was a "real possibility" he did read RCMP investigation reports that came to him during the 1969 investigation.

Those reports, some of them initialed by Kujawa, stated the Miller murder appeared to have been committed by the same person who had recently raped other young women in the same neighbourhood.

One of them had statements from three sexual assault victims attached to it.

Kujawa must have read the RCMP reports, which all had his name written on them by someone in the office, Wolch suggested.

Kujawa said he considered himself a responsible worker. If so, Wolch asked, what was the point of initialling reports before sending them for filing if he hadn't read them?

Kujawa said he was too busy to keep track of every investigation going on around the province. He said the only things he read were the trial transcript, which did not mention the other rapes, the judge's instructions to the jury and Milgaard's notice of appeal, which outlined the grounds of appeal.

Kujawa said he couldn't remember if the RCMP reports were in the same file as the documents he used.

Kujawa reflects old-school view of justice system

The notion that our justice system is a machine with a closed loop design, where a law degree is a prerequisite to be part of the apparatus, hardly seems like a modern interpretation. editorial: Should a law degree be a prerequisite to being the defendant part of the apparatus? WHAT A STUPID POMPOUS FOOL!

So, it is to be hoped that the opinions expressed this week at the Milgaard inquiry by retired Saskatchewan prosecutor Serge Kujawa are but vestigial remains of a day when people and institutions quaked before the justice system.

Steven Truscott

Steven Truscott: was found guilty by a jury based on circumstantial evidence and sentenced to death at age 14. Gets 6.5M in 2008

The notion that the system can get things wrong and needs to be challenged to rethink cases took hold in the 1960s with the Stephen Truscott case. If not for prime minister John Diefenbaker's uneasiness with capital punishment, Truscott's supporters may not have got the time needed to slow down the judicial machinery revved up to send the young man to the gallows.

As events proved, the machinery of the police and judicial system was no better tuned nearly a decade later, when David Milgaard got enmeshed in its gears.

Yet, all this time later, Kujawa still remains offended that Milgaard and his supporters worked through the media to exert pressure on the federal justice minister to review the case.

"Justice matters should be dealt with by the justice system, which should admit that it's less than perfect and should be willing to review what has been done and is now questioned," Kujawa said Wednesday at the inquiry.

In Milgaard's case, it's difficult to see where those within the justice system, who dismissed his supporters out of hand, ever were willing to admit they were less than perfect. It led to David Asper, then a junior lawyer working for Hersch Wolch, deciding it would become necessary to go to war against the system.

Asper's war analogy may sound somewhat unlawyerly, but defence lawyers across Canada have found media allies over the years in trying to clear the stone wall the justice system puts up, especially when it comes to defending zealous prosecutors.

Careful media examination can raise questions that lawyers who are concerned about the justice system freezing them out cannot.

Could Richard Klassen, who didn't finish high school, have had any chance in unravelling the bizarre case of sexual abuse levelled against him and his family, if there had been no sympathetic news stories every so often about his case?

Klassen received belated compensation from the province for the trauma his family endured, but that same government is funding an appeal against the finding that the Crown attorney in the case was malicious in his prosecution.

It is rare that the justice system fires an overzealous prosecutor, although it did that in the case of Robert Latimer when a prosecutor did nothing to alert the court when a zealous RCMP officer tried to sniff out potential jurors who might be sympathetic to the defence.

And that's not to forget the Martensville child abuse allegations where the Saskatchewan justice system so far has resisted the notion of an inquiry into why outrageous charges were taken so far in that case. After all these years and examples of the system's fallibility, Kujawa still sees public criticism, which could lead to a review of certain cases, as coming from those who "don't have the information and knowledge that the justice system should have".

Years after Milgaard was given his freedom, the conduct of the provincial justice system still raises questions on whether it has the motivation or willingness to learn from the past and re-examine cases that might have involved a miscarriage of justice.

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