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Commission of Inquiry into the Wrongful Conviction of David Milgaard

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Joyce Milgaard

Joyce Milgaard takes the stand at inquiry into her son's wrongful conviction

SASKATOON (CP) - David Milgaard's mother says her son was a teenager with a "wild streak" who had turned his life around when police fingered him for a vicious rape and murder he didn't commit.

On the stand at the public inquiry into her son's wrongful conviction, Joyce Milgaard said David, then 16, had a job selling magazine subscriptions for Maclean's.

Gail Miller

He had cut his hair and had left the hitchhiking hippie lifestyle behind when Saskatoon nursing aide Gail Miller (right) was killed in 1969.

She says David had been waiting to get a licence to sell subscriptions in British Columbia when he decided to go on a road trip with friends that took them through Saskatoon on the morning of the crime.

When investigators showed up on the family's doorstep a few months later, she says she figured one of his friends might have been involved in a murder, but she knew her son would have never done such a thing.

David Milgaard spent 23 years wrongfully in prison for Miller's murder.

It was a crime DNA evidence would eventually prove he didn't commit.


Key witnesses scheduled as Milgaard inquiry resumes

The Milgaard inquiry resumes public sessions in Saskatoon on Monday, and is expected to hear from key government and RCMP witnesses before wrapping up in September.

But even with that deadline for hearing witnesses looming, commission lawyer Doug Hodson says the inquiry will not rush.

"We will do a proper job," he said. "We will not compromise on any of the evidence we get from these witnesses. We will not compromise on the rights of any party to ask questions they think are appropriate."

The commission of inquiry was established to find out why David Milgaard was wrongfully convicted of a 1969 rape and murder, and spent 23 years in prison before being exonerated.

When the inquiry's hearings temporarily halted in June for a summer break, commissioner Edward MacCallum made it clear that there is a strict deadline.

"Our focus is to make sure we get all the evidence in before the end of September," said Hodson.

With 131 witnesses appearing before the inquiry in the past year and a half, this has been a lengthy process.

Even if the inquiry wraps up in September, the commissioner still faces the task of analyzing all the evidence and writing his report.

Former Milgaard lawyer David Asper is expected back on the stand for Monday's session.


Milgaard Inquiry Gets Underway Today

Former Milgaard lawyer David Asper is scheduled to testify as the Milgaard Inquiry resumes this afternoon in Saskatoon.

The inquiry into the wrongful conviction of David Milgaard for the 1969 murder of Saskatoon nursing assistant Gail Miller was supposed to wrap up in June. Milgaard spent 23 years in jail for a crime he did not commit.

David Asper and Murray Sawatsky are testifying at the inquiry this week. In total, another 18 days has been set aside with the expectation that the inquiry testimony will be complete by the end of September.(VMF)


Former Milgaard lawyer stands by condemnation of Justice Department

David Milgaard's former lawyer said Monday he still thinks the federal Justice Department took too long to reopen Milgaard's 1970 murder conviction.

David Asper, who represented Milgaard between 1986 and 1992, when the Supreme Court of Canada quashed the conviction, resumed testimony at the Milgaard inquiry Monday.

In cross-examination by lawyer David Frayer, who represents the federal Justice Department, Asper reviewed a chronology of the progress of an application that was prepared by federal investigator Eugene Williams.

The chronology showed Williams investigated only the aspects of the case that were formally presented as reasons why the case should be reopened. As new reasons were formally presented, Williams investigated them. At each new submission Williams delayed providing his report and recommendations to then-justice minister Kim Campbell about whether she should have the case reopened.

Asper said Williams was already aware of issues, such as the crimes of serial rapist Larry Fisher around the time of and in the neighbourhood of the murder for which Milgaard was convicted, Asper said.

"We submitted sufficient information a long time before February 1991 that would have justified reopening the case," Asper said.

"I didn't think we had to prove beyond a reasonable doubt that Larry Fisher committed the crime. And we were absolutely convinced that the identification of Fisher smashed through any threshold remaining on the . . . application simply by the raising of an alternative perpetrator," Asper said.

Williams' recommendations to the minister were also delayed by Milgaard, who wrote letters to the justice minister saying his family would also contribute a presentation to his application, Asper said.

Milgaard's lawyers and family had encouraged him to concentrate on preparing a presentation to add to the application to keep him occupied during the stressful waiting period, the inquiry has heard.

Frayer also asked Asper a series of questions about an October 1990 meeting he and fellow Milgaard lawyer Hersh Wolch attended with Justice Department lawyers. Asper had little recollection of the details.

The only accounts of the meeting available to the commission are in a book, based on an interview with Asper, and a letter written by Wolch to Asper, summarizing the meeting.

According to those sources, federal lawyers took copious notes at the meeting.

Asper's lawyer, Donald Sorokan, took issue with the Department of Justice refusing to produce all the relevant documents.

Commission counsel Doug Hodson said he is aware that the federal government has at least one letter written by Williams to another department lawyer, which sets out what happened at the meeting.

"I'm told it's privileged and I suspect they'll say its unconstitutional as well," Hodson said.

"I don't have it. I'm not giving up on having it. The fact this line of inquiry is taken with this witness confirms for me the relevance of that document to this commission for that purpose," Hodson said.

The matter will be addressed in September when Williams continues his testimony, which began last spring, before the commission took an eight-week break.

Milgaard spent 23 years in prison for the 1969 rape and murder of Saskatoon nursing assistant Gail Miller. After 17 years in prison, Milgaard wrote to the federal justice minister in January 1986, saying he would soon apply for a case review.

Almost three years later, in December 1988, the application, prepared by Asper, was submitted. More than two years later, in February 1991, Campbell denied that application.

A second application was submitted in August of that year and in November 1991, Campbell referred the matter to the Supreme Court.

Milgaard was released in April 1992 after that review, but it wasn't until 1997 that he was exonerated by DNA evidence that indicated the real killer was Fisher, whom Milgaard's supporters had identified in 1990 as the likely perpetrator. Fisher was convicted in 1999.


How many Hurricanes?

Hurricane Carter

Canadians know David Milgaard, who spent 23 years in prison for a murder he did not commit, as a symbol of the justice system's failure. Americans, on the other hand, know the aforementioned Rubin "Hurricane" Carter, a middleweight boxer wrongfully convicted of a 1966 triple homicide, as their example of justice denied to an individual.

There's a haunting question hanging over the entire justice system because of both men: how many innocent people are behind bars, or overcoming the stigma of a criminal record, because someone in the justice system didn't do his or her job properly?

Here in Manitoba, we have been faced with this question during the past few weeks. A public inquiry into the wrongful conviction of James Driskell - who spent more than a decade behind bars for the 1990 murder of his friend Perry Dean Harder - will resume later next month.


Lawyer questions handling of witnesses by investigator

David Milgaard's former lawyer, David Asper, maintains federal investigator Eugene Williams was biased in his approach to witnesses supporting Milgaard's claim he had been wrongfully convicted of murder.

There were significant differences in the formal, possibly intimidating, way Williams approached motel witness Deb Hall and Larry Fisher's ex-wife, Linda Fisher, and his collegial approach to former Crown prosecutor Bobs Caldwell, who handled the original case against Milgaard, Asper told the Milgaard inquiry Tuesday.

If Williams' methods were improper, the resulting statements would be "fruit of a poisonous tree," Asper said.

The commission of inquiry listened to recordings of Williams' sworn interviews with the two women in 1989, in which he consistently spoke in a formal, polite tone. Asper said Williams asked Hall leading questions as he probed her recollections about a motel party in May 1969, where Milgaard was said to have re-enacted the January 1969 murder of Saskatoon nursing assistant Gail Miller.

Hall had given a 1986 affidavit saying witnesses George Lapchuk and Craig Melnyk lied when they said Milgaard admitted to committing the crime. During Williams' questioning in 1989, Hall's version of events had changed. She gave an enhanced account of the same story given by Lapchuk and Melnyk and said, for the first time, that Milgaard said, "I stabbed her."

Unlike Lapchuk and Melnyk, Hall said she didn't think Milgaard was serious, but was making a crude joke. Asper said Williams re-phrased Hall's remarks, changing their meaning and manipulating Hall into agreeing with things she had not said.

"He misrepresents what she said," Asper said.

Asper also took issue with the way Williams questioned Linda Fisher, who had gone to Saskatoon police in 1980 saying she thought Milgaard was innocent and her husband, a convicted rapist, had committed the murder.

"I have difficulty with the number of times Mr. Williams comes back over and over and over again with Mrs. Fisher, testing the basic facts of her story, and I interpret that as an attempt to try and shake her.

"I would also suggest the offering to her of alternative possibilities is not the proper role of an investigator seeking a narrative from a witness," Asper said.

Asper suggested Williams' questioning was comparable to cross-examination by a lawyer defending Fisher. Asper also noted Williams did not investigate the possibility Linda Fisher's suspicion of her husband was correct.

Williams did not investigate Fisher enough to discover that Fisher pleaded guilty in Regina to crimes he committed in Saskatoon. Instead, Williams took at face value Asper's mistaken assumption that since Fisher pleaded guilty in Regina the crimes must have occurred there.

Williams' treatment of Caldwell was quite different, Asper said. Williams didn't treat Caldwell as a witness with vested interests in the outcome of Williams' inquiries, Asper said. Williams placed Caldwell in a conflict of interest by asking him to produce his Milgaard prosecution file instead of treating him as a witness and having other justice department staff produce the files, Asper said.

Justice department lawyer David Frayer suggested Asper over-stated complaints by the two women in a June 1990 letter to Williams. Frayer referred to previous testimony at the inquiry where Hall and Linda Fisher were asked about their treatment by Williams, and neither reported feeling intimidated or abused by him.


RCMP investigator tells Milgaard inquiry he assumed teen witnesses were lying

SASKATOON-- The RCMP investigator appointed in 1993 to investigate allegations of wrongdoing by police and justice officials after David Milgaard was freed from jail testified Wednesday he simply assumed two teens key to the case were lying.

Insp. Murray Sawatsky characterized Nichol John and Ron Wilson - as uncooperative when they originally said Milgaard was never out of their company long enough to have committed the crime.

"(They were) not like a detached witness who would give you everything they could," Sawatsky told the inquiry looking into Milgaard's wrongful conviction.

"In Nichol John's case, I'm not sure whether it was simply because she was unable to recall or, sometimes, perhaps, she felt that she could somehow be implicated. For any number of reasons, Nichol John was not forthright when police initially interviewed her."

After extensive questioning by police, the then-16-year-old John signed a statement saying she had seen Milgaard grab a girl and stab her. But at the preliminary hearing, John said she couldn't remember what happened, and at the trial, she refused to repeat her earlier allegations against Milgaard.

Wilson, who was 17 at the time, has told the inquiry he was a heavy drug user and lied when he changed his story and told police that Milgaard was the killer.

He recanted that accusation before the Supreme Court of Canada, saying police had manipulated him into implicating Milgaard, and making him scared they might blame him if he didn't finger his friend.

Sawatsky said his investigation was not able to determine whether the Calgary interrogator brought in to question the pair might have done something improper or planted information to get them to make untrue statements.

Sawatsky said that was because Calgary police no longer had Art Roberts' written notes or polygraph charts, nor did Saskatoon city police still have the tape recording they made of the sessions on May 23, 1969.

Roberts denied doing anything improper when he testified at the Supreme Court of Canada in 1992. He has since died.

Sawatsky's investigation eventually concluded the evidence did not support allegations of criminal wrongdoing by the Saskatoon police or other justice officials. Milgaard's mother, Joyce Milgaard, has criticized the report, calling it a whitewash.

However, Sawatsky admitted Wednesday he was influenced by the findings of the Supreme Court of Canada, which said it had not heard any evidence of police wrongdoing.

Milgaard supporters point out the Supreme Court had refused to hear any such evidence and focused only on facts around the crime.

Milgaard spent 23 years in prison before being exonerated when DNA tests proved that serial rapist Larry Fisher was the one who killed Miller.


RCMP officer says Milgaard investigator may have acted improperly

SASKATOON - A Calgary interrogator brought in to question teenage witnesses in the 1969 Gail Miller murder investigation could have done something improper or planted information to get them to make untrue statements, an RCMP investigator told the inquiry into the wrongful conviction of David Milgaard on Wednesday.

Investigators were not able to determine if such wrongdoing occurred during pivotal interviews of Ron Wilson and Nichol John because Calgary police no longer had Art Roberts's written notes or polygraph charts, Insp. Murray Sawatsky said.

Roberts, who is deceased, denied doing anything improper when he testified at a Supreme Court of Canada hearing in 1992.

Saskatoon city police also no longer have the tape recording they made of those sessions on May 23, 1969, where Milgaard's traveling companions both changed their stories and gave police information that implicated him in the Jan. 31, 1969, murder of nursing assistant Gail Miller, the inquiry has heard.

Sawatsky led a 1993 investigation into allegations of wrongdoing by police and justice officials, which the Saskatchewan government ordered after Milgaard was released from prison in 1992 after serving 23 years for Miller's murder. The RCMP's report concluded that available evidence did not support allegations of criminal wrongdoing by the Saskatoon police or other justice officials.

Sawatsky, who conducted his investigation before 1997 DNA tests showed that Larry Fisher, not Milgaard, was the killer, said Wednesday he was influenced by the findings of the Supreme Court of Canada, which said it had not heard any evidence of police wrongdoing.

Milgaard supporters point out the Supreme Court had refused to hear any such evidence and focused only on the facts around the crime.

In evaluating police conduct, Sawatsky assumed the teens had something to hide and were lying.

He said John and Wilson were unco-operative when they originally said Milgaard was never out of their company long enough to have committed the crime.

"(They were) not like a detached witness who would give you everything they could. That wasn't the case here," he said.

"In Nichol John's case, I'm not sure whether it was simply because she was unable to recall or, sometimes, perhaps, she felt that she could somehow be implicated. For any number of reasons, Nichol John was not forthright when police initially interviewed her," Sawatsky said.

John was interrogated by Roberts, who showed her photographs of the body and Miller's bloody dress. John then suddenly remembered she had witnessed the murder, she and Roberts have said. She later signed an 11-page statement saying she saw Milgaard stab Miller.

John refused to repeat the allegation from the statement at Milgaard's trial or at any subsequent hearing.

Commission lawyer Doug Hodson asked Sawatsky why he thought a witness would suddenly remember seeing a murder when she recalled nothing before.

"It could be simply the skill of the interviewer was able to convince her that she should tell the truth," Sawatsky said.


No Fisher Link, Ex-Cop Says

SASKATOON -- A former RCMP inspector told the inquiry into David Milgaard's wrongful conviction yesterday that he still doesn't see the similarities between a string of rapes committed by Larry Fisher and his rape and murder of nursing aide Gail Miller in 1969.

Murray Sawatsky was appointed in 1993 to investigate allegations of wrongdoing by police and justice officials after Milgaard was freed from jail, where he spent 23 years for Miller's murder.

Milgaard was eventually exonerated when DNA testing proved that Fisher was the one who did the crime.

Sawatsky said the similarities didn't sway him as he prepared his report in 1994 -- a report that concluded neither police nor justice officials had committed any wrongdoing.

"At the end, it was my view (Milgaard) was responsible for the crime," Sawatsky said.

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