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Commission of Inquiry into the Wrongful Conviction of David Milgaard

page twenty-two

Milgaard wraps up inquiry testimony

David Milgaard answered questions Monday in Vancouver for the commission of inquiry looking into his wrongful conviction.

"He was very co-operative," said commission lawyer Doug Hodson, who examined Milgaard in a downtown hotel boardroom, with a court reporter and video photographer present.

"When we were all said and done, I think he was quite fine with the whole process. In fact, he expressed that, so I think he was happy with how things went," Hodson said Monday.

The video will be shown to the commission soon after it reconvenes in mid-April, following a six-week break which began this week. The video and transcript will be made public at that time, Hodson said.

Milgaard, 53, was allowed to give his evidence in his home city following an application for accommodation.

His lawyer, Hersh Wolch, said Milgaard suffers from post- traumatic stress disorder and is traumatized when he has to recall the events that led to his wrongful conviction and subsequent 23 years of imprisonment.

Commissioner Edward MacCallum said he wasn't convinced Milgaard has post-traumatic stress disorder and granted the accommodation only because lawyers for other parties with standing suggested it as a compromise to Milgaard's own suggestion that he provide written answers to written questions.

Those parties will be allowed to see the video before the commission reconvenes. If any have outstanding questions, which would otherwise have been asked in cross-examination, it is possible Hodson would return to ask those questions, Hodson has said. The process is to be complete by the time the commission resumes April 17.

As it turned out, the oral question and answer session, which began at 10 a.m. and ended shortly after 2 p.m., was probably the easier solution for Milgaard, Wolch said,

"He's thrilled that it's over. He does not want to have this in his brain. He wishes everybody well and things like that, but he does not want to think about it. Who can blame him?" Wolch said. "I think the accommodation went a long way to taking away the stress that would have been there.

"Doug Hodson's questioning was extremely skilful in that he deliberately stayed away from triggering horrific memories and I think he should be commended for that. And he was able to get all the questions answered without hitting the trigger spots."

Milgaard was also comforted by the presence of his therapist, Joel Grymaloski, who attended with him, Wolch said.

The atmosphere was friendly and Milgaard showed pictures of his new son, who was born Jan. 27, Wolch said.

"It's clear that the baby and his wife are the complete centre of his universe," Wolch said.

Kujawa attitude reflects poorly on justice system


The report of Kujawa's testimony at the Milgaard inquiry sent through me a sense of outrage.

Serge Kujawa

He believes the media and the public do not have "information and knowledge and background that the justice system should have." Maybe not, but they have a sense of justice that the pompous members of the justice system lack.

Those such as Serge Kujawa, Joe Penkala, and Bobs Caldwell are more interested in protecting their positions, egos and self-importance than in justice.

It does not take a lawyer's degree and training to see how outrageous these peoples' action were in the light of the evidence. Milgaard would still be in the tank unless these individuals' actions had not been discredited.

C. R. Frattlinger

Milgaard team told to protect Fisher's rights: Asper

Gail Miller

When David Milgaard's family and lawyers found out about the existence of rapist Larry Fisher (right) as a possible suspect in Gail Miller's murder, no one was more protective of Fisher's privacy than Milgaard himself, his former lawyer, David Asper, told the Milgaard wrongful conviction inquiry Monday.

"We had very, very serious concerns about the identity of the suspect. The most vocal concerns came from David Milgaard himself who was wildly insistent that we not, in David Milgaard's words, "do to Larry Fisher what was done to him, David Milgaard", Asper testified at the inquiry, which resumed Monday following a six-week break.

Asper, now chair of the National Post newspaper and vice-president of CanWest Global, represented Milgaard in his efforts to have his 1969 murder conviction reviewed by the federal Justice Department during the six years he worked for Winnipeg lawyer Hersh Wolch. Asper then joined his father's communications business.

Asper is the only witness scheduled to testify this week at the inquiry, which began its work in January 2005. The inquiry is expected to finish hearings by late June.

Milgaard, who by 1990 had been in prison for 21 years for a crime he didn't commit, was concerned that public opinion might turn against Fisher before he'd had a chance for a fair trial, Asper said.

"He was very, very insistent that we not disclose and pillory Larry Fisher," Asper said.

Wolch had received an anonymous telephone tip in February 1990 that the wife of a convicted rapist, who had lived in the neighbourhood of the murder, believed that her husband, Fisher, had committed the crime.

By that time, the Milgaard team was frustrated by the slow pace of the federal Justice Department's response to Milgaard's 1988 application and were impatient for federal investigators to respond to their application outlining evidence they thought pointed to Milgaard's innocence.

Milgaard's mother, Joyce Milgaard, was conducting her own investigation, interviewing witnesses, and both she and the lawyers were working to attract media attention to the case in hopes of raising public interest and pressuring politicians to exert influence that might help Milgaard.

The news stories also resulted in important witnesses and information, such as the tip about Fisher.

The Milgaard group provided journalists with information about the case that raised questions about the conviction and both Joyce and Asper gave interviews that kept the public interest alive.

When an anonymous tipster told Milgaard's lawyers about Linda Fisher's belief that her husband was the killer, Joyce and a New Jersey-based investigator, Paul Henderson, went to Saskatchewan and interviewed her and her family members.

The CBC had committed resources to investigate the matter and were given Fisher's name but were asked not to use it before the RCMP, who were investigating on behalf of the federal justice department, had a chance to investigate Fisher themselves.

Fisher, who was serving a sentence for a 1980 rape in North Battleford, was stalling for time as the RCMP investigator, Sgt. Rick Pearson, tried to persuade him to undergo a polygraph examination.

Asper said he had a good working relationship with Pearson and believed he was working as fast as he could.

Asper had grave concerns about releasing Fisher's name to the media, just as David Milgaard did.

"We were trying to liberate David Milgaard, not prosecute Larry Fisher," he said

sper tried to convince Joyce Milgaard to stop her investigation of Fisher so the RCMP could do their work without hindrance but it wasn't long before she discreetly resumed her efforts, he said.

"I was managing the Milgaard family and a media horde that had been unleashed and a public that was growing increasingly interested in the case," Asper said.

"I was concerned that the natural pace of an investigation may not coincide with the pace of the publicity that we had generated and the expectations of the Milgaard family," Asper said.

The CBC released Fisher's name in a June 1990 documentary that built a strong circumstantial case against Fisher.

Asper eventually came to believe Milgaard's defence team needed to build a strong case against Fisher to win Milgaard's freedom.

"That's when we . . . became far more aggressive in actually trying to prove that Fisher was the true killer," he said.

Milgaard was released after a 1992 Supreme Court review of his case. DNA proved his innocence in 1997 and helped convict Fisher in 1999.

Campbell confrontation turning point, Milgaard inquiry hears

The moment in May 1990 -- when then-justice minister Kim Campbell rebuffed Joyce Milgaard's mother in front of news cameras as she pleaded for a case review of her son David's conviction -- was a turning point in the public's perception of Milgaard's struggle, his former lawyer David Asper testified Tuesday.

Joyce Milgaard knew Campbell was in Winnipeg on other matters, so she planned to accost her in a hotel lobby and ask her directly to send David's case to the Supreme Court of Canada, Asper told the Milgaard inquiry.

The media was alerted to Milgaard's intention to intercept the minister.

"The elevator opened up, the minister walked out and it became one of the turning points in the case," Asper said. "The thinking was that it was going to be a positive moment, that Mrs. Milgaard would meet the minister and actually say, 'Help me.' What happened was the minister blew by her and created one of the moments that gets repeated over and over again and creates an image.

"In the drama as this unfolded, that moment made Kim Campbell into the Evil Empire. . . . It catalyzed public opinion," Asper said.

"The huge public outcry that occurred started with this moment," he said.

Campbell declined to stop and listen to Milgaard. As she passed by, she said if Joyce wanted her son to have a fair hearing she should not approach Campbell personally and that she, Campbell, wanted Milgaard to have a hearing that would withstand scrutiny.

The Milgaard group, which consisted mainly of David, Joyce, the lawyers, and at times private investigator Paul Henderson, had already communicated to Campbell that Milgaard's application to the minister for a judicial case review was becoming a controversy that could be defused by Campbell referring it to the courts, Asper said.

The Milgaard group wanted the Canadian public to apply political pressure on Campbell to grant Milgaard's request, Asper said.

"We wanted the political level to consider that there might be consequences to ignoring us, electoral consequences."

The negative public image of Campbell's treatment of Milgaard was exacerbated in February 1991, when she denied his application, Asper said.

Campbell later granted Milgaard a case review, which was conducted in February and March 1992. Milgaard was released soon after. In 1997, DNA proved his innocence and was used in 1999 to help convict rapist Larry Fisher of the crime.

The commission of inquiry has also recently received from Joyce Milgaard an additional 50 cassette recordings of phone conversations that took place between 1990 and 1992.

Asper was questioned Tuesday about remarks he made in one of the conversations where he and Joyce were discussing interviewing the main witnesses against Milgaard -- Nichol John, Ron Wilson and Albert Cadrain.

In the conversation Asper appears to be suggesting their investigator could plant the idea that the witnesses were coerced by police into giving false statements against Milgaard, which would make it easier for them to recant.

Asper appears to suggest that if the witnesses used those explanations, Milgaard's lawyers could use the statements even if they knew they weren't true.

Asper said Tuesday he didn't really intend to use lies. The conversations were part of an ongoing effort to think up possible ways to shake the witnesses from their entrenched positions, but he said he would not knowingly use lies.

"We were brainstorming and bouncing all kinds of ideas," Asper said.

"This was sophistry with Mrs. Milgaard. It was simply to try and sort out what the outcome might be with these witness statements.

"It's entirely possible that I was motivated at this point by being prepared to serve up to the Department of Justice what in my view was served up to the jury for a meal at the trial of David Milgaard. . . . Lies," Asper said.

"If you got what you knew to be a lie from Albert Cadrain that assisted David Milgaard, you were prepared to give that to federal justice to assist in the reopening?" commission counsel Doug Hodson asked.

"I think it was in my mind," Asper said.

"Is that what in fact, happened?" Hodson said.

"No." Asper said.

Henderson, the investigator, was sent out with no other instructions than simply to get a statement from Albert Cadrain, which would be turned over to the Department of Justice, Asper said.

If Cadrain gave a favourable comment that Asper thought might be a lie, he had the thought that he was prepared to use it, Asper agreed.

"For the purpose of this discussion that you've cited to me and I think probably beyond that, I was prepared to consider that," Asper said.

At that point the commissioner, Justice Edward MacCallum, asked: "Are you telling me you were prepared to use a statement which you knew to be a lie in support of the 690 application (to the justice minister)?"

"We wouldn't know if they were lies but we were prepared to take what we got, whether it was ultimately a lie or not, but not knowingly submit a lie," Asper said.

Media attention helped win review Milgaard lawyer: Justice Department failed in duty, Asper says

The federal Justice Department failed in its duty to provide a fair and unbiased review of David Milgaard's case when former justice minister Kim Campbell rejected his first application for a case review, Milgaard's former lawyer said Wednesday.

"It was an abject failure to comprehensively investigate this matter in the context of the Milgaard case," David Asper told the Milgaard inquiry.

Milgaard had applied to the justice minister in December 1989 to review his murder conviction in the January 1969 death of nursing assistant Gail Miller, a crime he had always denied committing.

The application questioned the forensic evidence about semen found in the snow and included the statement of a motel party witness, Deb Hall, who said Milgaard was being sarcastic when he admitted killing Miller after others bugged him about the fact he was a suspect in the murder.

Asper said he assumed the Justice Department would conduct an impartial review of the case that would include interviews of the main witnesses. But these witnesses weren't contacted until after Joyce Milgaard tracked them down and interviewed them herself, he said.

"Every piece of evidence that was ultimately used to free David Milgaard was evidence that was provided by the Milgaard camp, not by the Department of Justice. And every step of the way, the Department of Justice had to be dragged kicking and screaming to look into the new evidence that was being provided," Asper said.

"The minister says in her letter (denying the application) the department has 'as its duty' an objective discovery of the facts and it failed in its duty," Asper said.

By mid-1990, Milgaard, his family and lawyers were frustrated with the lack of communication from Justice Department staff about the application and came to believe the main investigator, Eugene Williams, was biased in favour of maintaining the conviction, Asper said.

In February 1990, Milgaard's lawyers learned about rapist Larry Fisher, who had lived about two blocks from the murder scene, in the basement of a house Milgaard and his friends had visited the day of Miller's death.

They also learned Fisher had been convicted of raping other women around the time of Miller's death, but they thought those Saskatoon offences had occurred in Regina because that's where Fisher had pleaded guilty in court.

Asper and senior lawyer Hersh Wolch added the information about Fisher to the first application.

Over time, Joyce Milgaard and Asper had begun providing journalists at the Winnipeg Free Press, the Globe and Mail and the CBC with information about the case. The publicity was intended to create public pressure on the politicians to take another look at the case, Asper said.

"Nothing we did made any difference until the national desk of the Globe and Mail and the Toronto Star started phoning the Department of Justice," Asper said.

Milgaard's lawyers sometimes went over Williams' head to his superiors and to staff in the justice minister's office because they doubted Williams was providing fair and complete information about the case, Asper said.

In the summer of 1990, Asper also added to the application the recantation of Crown witness Ron Wilson, who said he lied when he testified against Milgaard. Asper also added a statement from Crown witness Albert Cadrain saying he was put through "mental torture" by police after he came forward and the statement of another medical expert who said semen found in the snow at the crime scene might actually have been dog urine.

Asper and the Milgaards were confident they had enough information to meet the test laid out in Section 690 of the Criminal Code, which required them to demonstrate that "a reasonable basis exists to conclude that a miscarriage of justice has likely occurred."

During an October 1990 meeting between Milgaard's lawyers and Justice Department officials, Asper said Williams revealed his bias by arguing against every piece of evidence that attacked the conviction and in favour of anything that supported it.

In February 1991, Campbell denied Milgaard's first application.

Asper said he disagreed with every reason Campbell gave for rejecting the application. In particular, "She didn't take the Fisher information seriously enough to reopen the case," Asper said.

Milgaard made a second application in August 1991.

By then, the New Jersey-based Centurion Ministries had written a report with the information it had gathered showing the similarities between the Miller murder and seven sexual assaults Fisher had committed in Saskatoon. Joyce Milgaard sent the report to every member of Parliament in Canada and released it to the media.

It was also included in the application.

Newspaper articles reviewed by the commission Wednesday show Centurion Ministries publicly alleged that Saskatoon police framed Milgaard and then, when Fisher was caught and they realized their mistake, covered up information about Fisher.

Asper said he was so fed up with the entire process by that time that he probably wasn't as concerned about the possible impropriety of the allegations as he should have been.

"I think my mindset at the time was one of such thorough disgust at the process up to that point that I was probably less concerned than I might normally have been," he said.

Campbell granted the second request in November 1991 and referred the case to the Supreme Court of Canada, which reviewed the conviction in January 1992. The Supreme Court set aside Milgaard's conviction on April 14, 1992, and Milgaard was released.

In 1997, DNA evidence proved his innocence and in 1999 it was used to help convict Fisher of the crime.

Police 'script document' hit like ton of bricks: Asper

The Supreme Court of Canada came to the wrong conclusion when it found there was no evidence that Saskatoon police had acted improperly when they investigated David Milgaard in the 1969 death of nursing assistant Gail Miller, his former lawyer said Thursday.

"I disagree with the judgment," David Asper said Thursday at the Milgaard wrongful conviction inquiry.

Crown witnesses Nichol John and Ron Wilson gave statements that conformed to a police theory that had been drafted before they gave the statements, he said.

"In my view, that was evidence of improper conduct," Asper said.

The Supreme Court quashed Milgaard's conviction in April 1992 and caused his release from prison after 23 years, but it may have created as many issues as it resolved, Asper said.

Former federal justice minister Kim Campbell ordered a new trial, but the Saskatchewan Justice Department stayed the charge against Milgaard, saying even if it got a conviction, the Supreme Court had directed that he shouldn't serve any more time in prison.

"It left David in limbo, and that was coupled with comments by various offi cials that supported the original conviction," Asper said. "This had not cleared David."

Comments by justice officials and police during the years showed many still considered Milgaard guilty. He lived under the shadow of those suspicions until 1997, when DNA evidence proved he was not the man who had raped Miller before she was murdered. The DNA matched Larry Fisher, who was convicted of the crime in 1999.

The Supreme Court's decision said that Milgaard had the benefit of a fair trial, that the Supreme Court had "not received probative evidence" that the police acted improperly or that there was inadequate disclosure of evidence based on practices of the day.

Asper said the Supreme Court did not receive that evidence because it dictated before the hearing began that it would not look at the reasons for the possible wrongful conviction.

Asper said the court found that new evidence, including information that a rapist using similar methods was operating in the area at the time, could have affected the verdict if the jury had known about it.

"If the information was available at the time of the trial, how could the trial have been fair?" he said.

Commission lawyer Doug Hodson said the remarks in the court's decision were later relied upon by Saskatchewan justice officials to maintain nothing had gone wrong in the Milgaard investigation or prosecution.

Former Saskatchewan justice minister Bob Mitchell said years later that Milgaard was guilty of the crime, Hodson noted.

Also Thursday, Asper recalled that Milgaard's lawyers were in Ottawa, going through documents disclosed to them for the Supreme Court hearing, when they discovered a police document that seemed to predict what police witnesses would say before they said it.

"It hit us like a ton of bricks," Asper said.

The document, which has previously been referred to as "the script document" and "the smoking gun," has now been dubbed by Commissioner Edward Mac-Callum as "the Mackie summary."

It is named for Saskatoon police detective Raymond Mackie, who testified last year at the inquiry that he thought he was the person who prepared the document prior to the weekend of May 21, 1969, which culminated in Wilson and John giving statements blaming Milgaard for Miller's death.

"Somebody had prepared a script of what the witnesses were going to say in order to implicate David and create a case upon which a prosecution could be conducted," Asper said.

Asper agreed with Hodson that he, Asper, thought, "it was a document that may have been or was used by the police to influence or coerce or manipulate witnesses' testimony."

Asper also criticized Campbell, saying after her first denial of Milgaard's application for a case review, she would have been satisfied with a flawed process if the media and public had not pressured her to reopen his case.

"We had come to a view that we were not getting a fair shake at the federal Department of Justice. We didn't know whether the minister was part of that or not. We didn't know what was going on. The public campaign was initially to get the minister's attention on the assumption that (she) would take an interest and ensure proper action was being taken on the Milgaard file.

"I think it perfectly likely that without the public pressure and possibly without the intervention of the prime minister (Brian Mulroney) when he met Mrs. (Joyce) Milgaard . . . this minister would have ignored the public pressure and been content with a flawed process that would have kept David in prison," Asper said.

Campbell granted the review after Milgaard's second application.

Sparks fly at Milgaard inquiry

SASKATOON - David Asper, former lawyer for David Milgaard, said he believes the wrongfully convicted are today better off as a result of work done on the case, even if some people's feelings were hurt in the process.

Sparks flew Friday afternoon at the Milgaard wrongful conviction inquiry as Garret Wilson, the lawyer for former Crown prosecutor Serge Kujawa, tried to get Asper to acknowledge he made a mistake in suggesting Kujawa and other Saskatchewan justice officials acted improperly in their handling of Milgaard's conviction.

Asper acknowledged the hurt caused to some people, but continued to measure the insults felt by some against the "horrible, horrible" wrong of Milgaard's 23 years in prison.

Asper said he relied upon the process set out in section 690 of the Criminal Code.

He said he wanted an independent party to manage a process in which justice officials and the Crown prosecutors would meet with Milgaard lawyers where all could lay their information on the table, discuss the possibility of a miscarriage of justice and figure out how to address the problem.

Asper said the six years he spent working to free Milgaard was "an extraordinarily difficult period."

"The effort to win David's freedom and ultimately to establish his innocence was a process that I regret having to happen, and (I) regret having to have been put in the position where we felt we had no other choice but to do what we did," Asper said.

"I do sincerely wish that it could have happened another way and I want to point out that, even though I still have a philosophical difference with the way wrongful convictions are handled today under the Criminal Code, I believe that everything we did has contributed to a better process and the wrongly convicted have a better chance today than David Milgaard had in 1992 or in '88 when we started. So I guess from that, some good came of it," Asper said.

Taking risks freed Milgaard: former lawyer

David Milgaard's former lawyer, David Asper, acknowledged Friday that some people were hurt in the campaign to exonerate his client, but the insults some felt had to be measured against the "horrible, horrible" wrong of Milgaard's 23 years in prison.

Tensions ran high Friday at the Milgaard wrongful conviction inquiry as Garret Wilson, the lawyer for former Crown prosecutor Serge Kujawa, clashed with Asper.

Wilson tried to get Asper to admit he made a mistake in suggesting Kujawa and other Saskatchewan justice officials acted improperly in their handling of Milgaard's 1970 murder conviction.

Irritation was evident in the voices of both men as Wilson questioned Asper's suspicion that Milgaard was framed.

"The wrong guy got convicted so something happened. It might have been innocent and it might not have been and if it wasn't, I think we should find out, don't you?" Asper said.

Wilson replied by saying, "I don't know how helpful it is to make wild allegations of criminal conduct against the people trying maybe to do the best job they could."

"Let me tell you from the other perspective of someone who's spent 23 years in prison for something they didn't do," Asper said. "Maybe you're prepared to take a risk and try to crack something open in order to get your freedom."

"I can see why David Milgaard would do that, but why would David Asper do that?" Wilson said.

"Maybe David Milgaard sitting in a prison without any resources needs some help. And maybe nobody else was prepared to do that and maybe until there was somebody who decided to do it that finally some action happened and we got to the truth of the David

Milgaard wrongful conviction," Asper said.

"But you have some obligations and responsibilities as a member of the profession," Wilson said.

"I have a duty to my client and I have a duty to my profession and sometimes extraordinary circumstances arise such as I believe was the case in the Milgaard affair," Asper said.

Wilson suggested Asper could have taken the file to Kujawa, who was known to be fair and efficient, and talked to him about the problem with the conviction.

Asper said he relied upon the process set out in Section 690 of the Criminal Code. He expected the federal Justice Department to act as an independent party to manage a process in which all of the parties concerned would meet and lay their information on the table, discuss the possibility of a miscarriage of justice and figure out how to address the problem.

Asper gave Kujawa a qualified apology.

"If Mr. Kujawa did not have information to disclose and did not withhold information deliberately from the Milgaard team, the Milgaard lawyers, either at the appeal or at any time thereafter, then I apologize to him -- if he did not withhold information," Asper said.

Wilson responded that there is no evidence Kujawa withheld anything.

Asper acknowledged that he was sometimes brash in his comments about the case and that he was not always vigilant in checking facts, as when he said in a news interview that rape files involving Larry Fisher had recently gone missing from the Saskatoon police department. Evidence heard at the inquiry shows the files had been destroyed some years earlier in a routine purge of old documents.

Fisher was convicted of murder in 1999 in the 1969 death of Gail Miller, after DNA evidence helped prove Milgaard's innocence in the crime in 1997.

Asper said the six years he spent working to free Milgaard was "an extraordinarily difficult period" for himself and for Milgaard and his family.

"The effort to win David's freedom and ultimately to establish his innocence was a process that I regret having to happen and regret having to have been put in the position where we felt we had no other choice but to do what we did," he said.

"It was a messy process. It cost David a lot of years in prison . . . and I know that a lot of people felt swiped (at) on many occasions because it involved many people who were private having their names made public.

"It involved torqued headlines and media characterizations that, in hindsight, maybe weren't fair.

"I do sincerely wish that it could have happened another way."

Asper will return to the witness stand but no date has yet been set.

The inquiry resumes Monday at the Ramada Hotel, where a videotape of David Milgaard's March 6 testimony will be viewed.

Milgaard questioned own innocence

Spending more than two decades behind bars for a murder he didn't commit played with David Milgaard's sanity and led him at times to question his own innocence, an inquiry looking into his wrongful conviction heard Monday.

Testifying in a videotape made last month, Milgaard said he knew he was not guilty, but began to doubt himself after being misdiagnosed with different psychological problems under the assumption he was a murderer.

'The bottom line is if a person really, really has trouble dealing with ... the fact that he is not guilty and he has gone over it a lot of times in his own mind, he begins to question himself, you know, 'Is it possible I was guilty?" Milgaard testified.

'I don't like to say that publicly like this, but at one point in my mind I'm saying, 'Well, is it possible I could have possibly done this?' because this is many, many years later and I was just really messed up mentally.'

Milgaard spent 23 years in prison for the 1969 rape and murder of Saskatoon nursing aide Gail Miller. Now 53, he was 16 at the time of the crime and was passing through Saskatoon on a road trip with friends.

He was convicted on the strength of evidence from his travelling companions, who testified against him at his original trial.

It wasn't until 1992, with holes appearing in the stories his friends had told and suspicion emerging around serial rapist Larry Fisher, that his conviction was overturned by the Supreme Court.

Five years later, DNA evidence proved he didn't commit the crime. Fisher was eventually convicted.

Milgaard was allowed to give video testimony to minimize the stress of telling his story in person. On the tape he appeared calm and was forgiving at times.

While admitting he was 'dumbfounded' by what they had to say from the witness stand, he sympathized with the friends who testified against him, calling them victims.

'I am a person that has grown in a lot of different ways in my life, some of them, amazingly enough, inside prison,' Milgaard said. 'I don't hold anything against them and I hope they realize that. They were kids, like I was, on a lark. Hippies.'

The inquiry has already heard how it was one friend, Albert Cadrain, who initially directed police in Milgaard's direction by coming forward to say he saw blood on Milgaard's clothing the morning of the murder.

After a number of interviews with police, friends Ron Wilson and Nichol John also implicated Milgaard but, over the years, have either recanted or never repeated their accusations publicly again.

While refraining from citing specific examples, Milgaard said he can't help but think that some sort of corruption in the system led to his wrongful conviction and two decades in jail.

His family has long alleged that officials in the justice system took deliberate steps to ignore evidence as it trickled forward that would have freed him a lot sooner.

Lifestyle likely worked against Milgaard: criminology professor

The fact that David Milgaard and his friends were pot-smoking hippies in 1969 may have worked against them after they came to the attention of police, says a criminology professor who analyzed the evidence in the case in 1991.

Neil Boyd, a criminology professor from Simon Fraser University, and Kim Rossmo, who was then a PhD candidate, reviewed Milgaard's case, including the effect the teenagers' hippie lifestyle of drug use and free love may have had on how they were viewed by authorities and the public.

"These three hippie kids were already seen as morally suspect in terms of the era," Boyd said Tuesday at the Milgaard wrongful conviction inquiry.

"I think it was something of a factor. The fact that three hippie kids came into Saskatoon in the early morning of later January and then went off to buy marijuana in Edmonton and went on to have a crazy party weekend, that kind of behaviour at the time was seen as a good deal more threatening than it is today.

"Our attitudes toward illegal drugs have shifted dramatically in the intervening years," he said.

"Mainstream music that you hear in the shopping centres now would be seen as outrageous by the standards of 1969 in terms of the lyrics and ethics that were said to be espoused in that music," Boyd testified.

"Its always interesting to look back on a different era and ask how we judge people in that era," he said in an interview after he finished testifying.

"It wasn't long ago homosexuality was criminalized. In the late '60s and '70s, marijuana use was seen as indicative of a major social problem and at the individual level was seen as pathological. Today we're having a debate about whether it should be sold in liquor stores.

"That casts a shadow. It raises questions about how the culture of the day would view three hippie kids coming into Saskatoon on the morning of January 31. They might be viewed as suspects because of their association with that culture.

"It's not a critical role that culture plays, but it plays a role as a backdrop."

Boyd and Rossmo conducted their study in the months after then- justice minister Kim Campbell turned down, in February 1991, Milgaard's first application for a case review.

"I don't think that it was a fair reading of the evidence," Boyd said.

Boyd said he thought that there was enough evidence to show there had been a miscarriage of justice and that Campbell should have reopened the case.

Boyd's and Rossmo's report was included in Milgaard's second application for a case review, which resulted in the case being referred to the Supreme Court of Canada, which quashed the conviction in 1992.

The Supreme Court ordered a new trial but Saskatchewan Justice stayed the charges, saying even if Milgaard was convicted again, the Supreme Court said Milgaard could not be imprisoned any longer anyway.

Boyd said he was also disappointed with the Supreme Court decision.

"I think a fair reading of the evidence in that case leads you to the conclusion that David Milgaard's innocence is more powerful than his guilt," Boyd said.

"I was disappointed with the Supreme Court, not so much on the logic on the law but on their reading of the facts . . . on the way they evaluated the evidence before them," he said.

Rossmo, now a criminology professor at Texas State University, who was raised in Saskatoon, also took the witness stand Tuesday.

A former Vancouver police officer, Rossmo became a pioneer in the study of criminal geographic profiling, a term he coined. He examined the locations of known rapes conducted by Larry Fisher, compared them to the location of murder victim Gail Miller and found it supported Fisher, rather than Milgaard, as Miller's attacker. Fisher was found guilty of the crime in 1999.

Rossmo continues testimony today.

Documents and transcripts of the hearings are available on the commission's website at

Prosecutor had evidence supporting Milgaard's innocence: Asper

Some of the negative allegations levied against David Milgaard prosecutor Bobs Caldwell might not have been made if defence lawyers had obtained files from Caldwell and other lawyers who had represented Milgaard in the past, one of Milgaard's former lawyers said Friday.

But there probably would have been different, possibly worse, allegations, David Asper said.

"I really wonder what could have happened, and I want you to consider the possibility of an even greater doomsday scenario frankly, if we had Mr. Caldwell's file and the Department of Justice still was not granting us relief," Asper said in cross-examination by Caldwell's lawyer, Catherine Knox, at the Milgaard wrongful conviction inquiry.

"If we knew all that Mr. Caldwell had in the file in terms of the witness statements and we still weren't getting action from the Department of Justice, I have to be very candid with you, it could have been worse." he said.

Caldwell's file contained witness statements that undermined the Crown's murder case against Milgaard but which were not disclosed to his lawyer.

It also included RCMP crime lab reports comparing evidence from the Gail Miller 1969 murder investigation with evidence from two other rapes that had been committed in the same area of Saskatoon.

Saskatoon police had asked a lab, in the month before Milgaard was identified as a suspect in the murder, to see if there was a connection between the crimes.

Someone, apparently a police officer, had drawn a wavy diagonal line through the pages and written, "omit," and "not connected," on them, but they were included in the materials sent to Caldwell as he prepared for the trial.

A statement from a university student who was groped by a stranger on the street a few blocks away, the same morning Miller was killed, was also in the file with the same wavy lines and notations.

Caldwell's files also included a letter by then lieutenant Joe Penkala of the Saskatoon police to the RCMP crime index in Ottawa drawing comparisons between the Miller murder and the recent rapes.

Caldwell has said he did not know there had been a series of sexual assaults by an unidentified man in the months before the murder. He said he never made a connection between the rapes and the Miller murder.

"I find it odd that files of this potential importance were in Mr. Caldwell's file and marked, 'Not connected,' " Asper said.

"You have to wonder why, with all of the (Larry) Fisher activity going on in the context of the Miller murder, it's not crazy to wonder why it didn't twig," he said.

In late 1971, Fisher pleaded guilty in Regina to three rape charges and one indecent assault charge stemming from incidents in Saskatoon.

He was convicted of killing Miller in 1999, after Milgaard was cleared by DNA evidence in 1997.

Caldwell believed Milgaard was the killer, Knox said Friday, pointing out that if he had knowingly ignored information about another suspect and wanted to cover it up, those documents probably would not still be on his file, which he made available to journalists and lawyers.

The fact Caldwell's files appear to be intact shows it may have been unfair for Asper to say in the media that Caldwell was in a conflict of interest when he helped the federal Justice Department find his files and to imply that Caldwell might tamper with them, Knox suggested.

Knox took Asper through documents showing that Caldwell had previously allowed journalists to examine the voluminous file he compiled during his prosecution of Milgaard.

Caldwell also had invited Gary Young, another lawyer who acted for Milgaard, to look at the files when he called to ask about them.

Knox suggested if Asper had simply requested the file from Caldwell early in Asper's examination of the case, he could have avoided making unfounded, negative allegations about Caldwell.

They included an allegation that Caldwell got rid of evidence, a bone-handled knife, before the trial. Documents from Caldwell's file show the officer who found the knife was at the courthouse prepared to testify when Milgaard's lawyer, Cal Tallis, and Caldwell agreed to leave it out of the trial because it had been found to be unrelated to Miller's death and would just confuse the jury.

Tallis agreed with that when he testified at the inquiry earlier this year.

Investigator believed Milgaard was innocent

Media 'ambush' of witness part of Henderson's work with Milgaard's mother.

David Milgaard's mother and a private investigator had a television news crew hide in an apartment hallway as they attempted to capture a trial witness refusing to give them an interview in August 1991.

Joyce Milgaard and investigator Paul Henderson had approached witness George Lapchuk the day before. Lapchuk had told them authorities had told him not to speak to them and had slammed the door in their faces, Henderson testified Monday at the Milgaard wrongful conviction inquiry.

The pair returned the next day with a television reporter and camera to obtain news footage of Lapchuk's response to their request. They had the news crew hide around the corner, in what Henderson called, an "ambush."

Lapchuk, who has since died, surprised them and invited them inside. Henderson and Milgaard went inside but didn't tell Lapchuk about the news crew, which they left out in the hall.

Lapchuk gave Henderson a 20-minute interview, in which he stood by his trial testimony of having seen David Milgaard re-enact the stabbing of Gail Miller during a motel room party about three months after the murder and after Milgaard had been questioned as a suspect in the murder.

Later, as Henderson and Joyce Milgaard left the apartment building, Henderson realized he had forgotten his notebook in Lapchuk's apartment.

Henderson returned to ask for it and found that, in the minutes since they'd left, one of Lapchuk's neighbours had informed him of the news crew that had been staking out his apartment.

"He was furious and red in the face, livid. And he chased me, actually, down to the elevator. I got on the elevator and got out of there. Never did get my notebook back," he said.

The inquiry has heard that Joyce Milgaard conducted her own investigation, sometimes with help, as she tried to gather information that would convince the federal department of justice to review her son's murder conviction.

Milgaard's first application had been dismissed in February 1991. A second application, filed in August 1991, resulted in the case being referred to the Supreme Court of Canada, which quashed the conviction.

Milgaard was released after 23 years in prison. Five years later, DNA evidence was used to prove his innocence and in 1999 was used to convict rapist Larry Fisher of the crime.

Henderson, who works for New Jersey-based Centurion Ministries, a prisoners' advocacy organization, worked on the Milgaard case for about three years. During that time he interviewed several of the main witnesses in the case, hearing the recantation of Ron Wilson and the statement by Albert Cadrain that police had subjected him to mental torture.

Henderson said he firmly believed in Milgaard's innocence and approached interviews with Crown witnesses assuming they had lied when they implicated Milgaard in the murder.

"It doesn't necessarily mean police knew they were building a case against an innocent person; it's possible they thought David Milgaard was a good suspect," Henderson said.

"I think police were responsible for the wrongful conviction of David Milgaard," he said.

He said he was not willing to knowingly accept lies that helped Milgaard because such lies would probably not hold up in court and would ultimately backfire.

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