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James Driskell, 2006

Perspective: Driskell Exposed

James Driskell was wrongly convicted of murder;
now a judicial inquiry will try to find the reason

Reports on this page are in descending order

James Driskell 2006

More than 2,000 kilometres and 15 years from where his ordeal began, Jim Driskell stood in a second-storey office in idyllic Princeton, N.J., staring at a long list of names posted on a large, black message board.

The board listed all the current cases of Centurion Ministries, a non-profit organization that investigates suspected wrongful convictions. The board includes the name of the inmate, the city where the crime took place, and the date of conviction. Some of the cases date back to the early 1960s. Eight names up from the bottom of the long, sad list were letters that spelled out "James Driskell."

Convicted of murdering his friend Perry Dean Harder in Winnipeg in 1991, Driskell was one of only two Canadian cases ever to make Centurion's list. Thanks to the efforts of Centurion and a diligent team of lawyers in Canada, Driskell's conviction was quashed in March 2005. As one of the group's success stories, he was eligible for the most honoured of all Centurion traditions: removing his name from the case board.

Driskell leaned forward and began to pluck off the tiny white plastic letters that made up his name. When he finished, there was applause from two dozen onlookers and a warm embrace from Centurion founder Jim McCloskey.

"I never thought this day would come," Driskell said, tears welling up in his eyes.

Wayne Eastridge, a bear of a man with a thick Virginia drawl, was exonerated in 2005 after nearly 30 years in prison for a Washington, D.C., murder. Eastridge yelled to McCloskey: "OK, who you gonna put up there to replace our names?" (....continued below after chronology)


From conviction to freedom: Driskell's long ordeal

TIMELINE:

CHRONOLOGY of events in the murder of Perry Dean Harder and the now-quashed conviction of James Patrick Driskell.

SEPT. 30, 1990: Harder's badly decomposed body is found in an open pit along a rail line near Brookside Boulevard by workers with the Prairie Dog Central train. He had been shot in the chest with a .22-calibre rifle. Harder's body is so decomposed that police must rely on University of Manitoba anthropology experts to identify him with the use of dental records. Police immediately release a statement indicating Harder's involvement in a chop-shop case is at the heart of the slaying.

OCT. 23, 1990: Driskell is arrested while driving with friend Don Bannerman in a van that Driskell once owned.

DECEMBER 1990: The Crown authorizes protection for two key prosecution witnesses -- Reath (Ray) Zanidean and John Gumieny. Both men are moved into safe houses and provided with living expenses.

APRIL 1991: Manitoba Justice agrees to pay Reath Zanidean $7,100 to compensate him for losing his house and promises to move him out of Manitoba after Driskell's trial.

JUNE 3, 1991: Driskell's trial begins.

JUNE 11, 1991: Zanidean testifies against Driskell. During cross-examination, Zanidean admits he is getting room and board while he is being protected during the trial, but denies getting any other compensation.

JUNE 14, 1991: After two days of deliberations, a four-man, eight-woman jury returns a guilty verdict. Driskell is sentenced to life in prison with no chance of parole for 25 years.

DEC. 16, 1991: Zanidean receives final payment of $20,000 from Manitoba Justice. In all, the Crown would pay Zanidean more than $80,000 in exchange for his testimony. These details were never disclosed to the defence.

JAN. 16, 1992: Saskatchewan Justice writes to Bruce Miller, head of Manitoba Justice prosecutions branch, alerting him that Winnipeg police promised Zanidean immunity for a Swift Current arson without authorization. Saskatchewan officials indicate Zanidean committed perjury while testifying against Driskell and urge Miller to disclose the evidence to Driskell's lawyers at the earliest opportunity.

DECEMBER 1992: Manitoba Court of Appeal denies Driskell's appeal for a new trial. Manitoba Justice failed to disclose the Saskatchewan materials to Driskell or his lawyers, despite having received the materials 10 months earlier.

MARCH 15, 1993: Justice Minister Jim McCrae announces he has called for a review of the Driskell case because of media reports questioning the conviction. The next day, George Dangerfield, the trial prosecutor, prepares a memo on the Driskell case in which he dismisses criticism of the prosecution and claims all relevant evidence was disclosed to the defence.

DECEMBER 2002: Following the involvement of the Association in Defence of the Wrongly Convicted, Manitoba Justice agrees to perform DNA tests on hair evidence used at Driskell 's trial. The Crown claimed the hairs, found in a van that once belonged to Driskell, were from the victim Harder. The DNA tests show that the three hairs used at trial did not come from Harder. Manitoba Justice agrees to open its files to AIDWYC.

MARCH 2003: A Free Press investigation reveals for the first time that the Crown withheld details of payments to witnesses Zanidean and Gumieny. The stories also confirm that Winnipeg police had evidence that Zanidean tried to recant his testimony days after the trial.

NOVEMBER 2003: Based on this new evidence and the DNA results, AIDWYC lawyers ask a court to release Driskell on bail, arguing it would be unconstitutional to keep him in prison with overwhelming evidence he did not get a fair trial. Manitoba Justice argues that Driskell is guilty and should be kept in prison. Manitoba Court of Queen's Bench Justice John Scurfield releases Driskell because of clear evidence he did not receive a fair trial.

DECEMBER 2004: A new body of evidence is uncovered from Manitoba Justice that shows the witness Zanidean received money prior to testifying and yet lied while under oath about being paid anything for his testimony.

MARCH 3, 2005: Driskell becomes a free man when then-federal justice minister Irwin Cotler quashes his 1991 murder conviction. Manitoba Justice announces a stay of proceedings but will not concede Driskell is innocent or even that he was wrongly convicted.


(....continued from above)

McCloskey smiled. "Don't worry about that," he growled in his trademark, hard-gravel timbre. "There's a long, grey line waiting to get up on that board."

The celebration continued under a large, white tent in the sprawling backyard at McCloskey's Princeton home. There were laughs and hugs and pats on the back. There were ovations for the lawyers and investigators who fought through the darker recesses of the justice system and found freedom for their clients on the other side.

But for every belly laugh and burst of clapping, there were tears and trembling voices for the mothers and fathers who died or were incapacitated while their sons languished in prison. There were apologies to alienated children and grandchildren, neglected wives and forgotten friends.

When it was Driskell's time to speak, he expressed his astonishment at the magnitude of the ordeal suffered by the others who had been exonerated. Driskell's 15 years behind bars paled in comparison to the sentences served by the other former prisoners in attendance. Well-known for wearing a leather baseball cap everywhere he goes, Driskell said he wanted to "tip my hat to what you guys have gone through, and how you've come out of it." He tipped his baseball cap to the audience.

"This was a real eye-opener for me," Driskell said a short time later. "I've been able to look at these guys and see what they've been through. It helps me to figure out what I've been through."

Driskell is not entirely finished with his ordeal. A judicial inquiry that will examine certain aspects of his case begins tomorrow. For the next three months, some of Manitoba's most prominent police and prosecutors will find themselves in the witness box, where they will be asked to explain their roles in a case former federal justice minister Irwin Cotler, who quashed Driskell's conviction, deemed a classic case of wrongful conviction.

The original case used to convict Driskell has fallen apart -- hair evidence has been eliminated thanks to DNA testing, the star witnesses have been discredited and police and prosecutors involved in the case are facing allegations they failed to disclose evidence that could have helped free Driskell. A preliminary review by a former provincial court judge concluded that although he was unable to find wilful misconduct because Crown records were incomplete, the failure of one or more prosecutors to disclose evidence amounted to "gross negligence bordering on the criminal offence of obstruction of justice."

For his part, Driskell said he goes into the inquiry with no fear about what may be revealed. Despite the fact he may face new allegations, he said he will be satisfied that the people responsible for his original conviction will have to account for their behaviour.

"I have always said through this that my life was an open book and now it looks like these other people will have to do the same thing."

Perry Dean Harder's badly decomposed body was found Sept. 30, 1990, in a shallow grave along railway tracks near Brookside Boulevard on Winnipeg's northwest side. He had been shot in the chest with a .22-calibre gun.

In many ways, it was hardly a shock that Harder met a violent death. A compulsive career thief, he was a deeply depressed, socially awkward man who some believed was a police informant. His drive to steal meant that no one -- neither family nor friend -- could rely on him to keep his hands to himself. His relationships with a number of girlfriends were emotional disasters.

Within hours of Harder's body being identified, Winnipeg police settled on Jim Driskell as the principal suspect. Checking internal police records, detectives learned that Harder had been busted a year earlier for stealing auto parts and had provided police with statements implicating Driskell as his accomplice.

Driskell had denied any involvement in the stolen goods case. Ultimately, Harder had told his lawyer he was not going to testify against Driskell and was going to take a plea bargain where he would plead out on a reduced number of charges. Driskell and his lawyer were aware of Harder's decision, and that without Harder's testimony in court, the charges would be dropped.

However, Harder was a no-show at his preliminary hearing. His absence did not ring any alarm bells; it seemed in keeping with his generally dysfunctional nature. But when Harder's body was found just three months later, police quickly theorized that Driskell had killed Harder to stop him from testifying in the stolen-goods case.

Police assembled a rogue's gallery of witnesses implicating Driskell: Convicted rapists, career arsonists, prostitutes and drug addicts all gave statements which, woven together, formed a picture of Driskell as an obsessed, violent, master criminal hell bent on eliminating Harder.

By itself, this image may not have been enough to convince jurors of Driskell's guilt. However, the Crown's theory was shored up by science. A van that a star witness claimed had been used in the crime yielded three hairs that an RCMP forensic expert, using microscopic comparison technology, identified as belonging to Harder.

Ray Zanidean

Ray Zanidean - RCMP informant paid to perjure testimony against Jim Driskell. Allowed to get away with serious arson.

Police and prosecutors had failed to turn up a witness to the murder, a murder weapon, a confession of any kind or direct physical evidence putting Driskell at the scene of the crime. However, the Crown was able to weave the fractured elements of the case into a single, damning indictment, and Driskell was convicted of first-degree murder. When former Ontario Superior Court judge Patrick LeSage convenes the Driskell inquiry tomorrow, he will hear a much different version of events.

DNA tests on the three hairs found in the van confirmed that not only did they not belong to Harder, they were from three different people. As well, new evidence unearthed years after Driskell's conviction showed that two witnesses -- Ray Zanidean and John Gumieny -- were paid tens of thousands of dollars in exchange for their testimony.

Zanidean also received tacit assurances by Winnipeg police that a pending arson charge in Saskatchewan would be dropped. Despite this, Zanidean testified under oath that he had not received any consideration -- monetary or otherwise -- in exchange for his testimony.

John Gumieny

John Gumeiny - RCMP informant. Winnipeg Police are now looking for him in connection with a rape in Winnipeg. He had also been convicted of rape when he sold his perjured testimony against Jim Driskell.

More problematic for police and prosecutors is new evidence that appears to show that key participants in the investigation and prosecution had evidence that could have aided Driskell's claims of innocence, and failed to disclose it.

This evidence convinced Manitoba Court of Queen's Bench Judge John Scurfield to release Driskell on bail in November 2003 pending the results of a federal government review of his case. It was only the second time in Canadian legal history a convicted murderer had been released from prison based on the strength of new evidence. "I am satisfied that if all of the new evidence had been presented to the Court of Appeal following the original trial, the conviction would probably have been set aside and he would probably have been granted a new trial," Scurfield said.

In November 2005, Cotler, then federal justice minister, quashed Driskell's conviction and directed Manitoba to hold a new trial. That same day, Manitoba Justice officials released a review by former provincial court judge John Enns who had been investigating Crown disclosure in the case.

Enns said "the incompleteness of the Crown file makes it literally impossible for me to pinpoint the problem." Enns also noted that he had not been given the powers of subpoena, and that he could not compel testimony from the main players. As such, Enns said there was a failure to disclose key evidence, although he could not say "wilful misconduct" had taken place.

"By actions, or more precisely by inaction amounting to gross negligence bordering on the criminal offence of obstruction of justice, important disclosure did not take place," Enns wrote. "I can only conclude that senior Crown officials, either collectively or individually, failed seriously in their duty to disclose."

Manitoba Justice declined to refile charges against Driskell, largely due to the fact the Crown's two main witnesses were now completely discredited. Still, the prosecution did not concede Driskell was either innocent or wrongly convicted. Justice officials said there was still evidence tying Driskell to the Harder killing, but not enough to merit filing new charges. In a letter to the court explaining why a new trial could not be held, senior prosecutor Bob Morrison said the decision to stay the charges should not be interpreted as "a recognition of factual innocence."

Some view this reluctance to concede Driskell's innocence as flying in the face of Cotler's analysis. A renowned human rights lawyer before entering politics, Cotler said in an interview Driskell was indeed a classic case of wrongful conviction, and that he had met all the requirements of "legal innocence."

"In reviewing this file, the only evidence there was, was itself circumstantial," Cotler said in an interview. "There were no eyewitnesses, there was no murder weapon found. Therefore, in effect, you just had... a Crown theory, and that Crown theory turned out to be utterly unfounded."

"An inquiry into certain aspects of the trial and conviction of James Driskell."

Even the official name of the inquiry indicates how carefully the justice system is treating the Driskell case.

The mandate of the inquiry is narrow and focused, in large part to prevent it from becoming the free-for-all circus that other reviews such as the Milgaard inquiry (right) -- now finishing up in Saskatoon after almost two years -- have become. The inquiry will not, if the mandate is respected, retry Driskell for the Harder murder. The inquiry mandate calls for examination of the conduct of prosecutors to see if their actions "fell below the professional and ethical standards expected... at the time." The commission will also try to determine if the Winnipeg Police Service "failed to disclose material information to the Crown at any time" that could have "contributed to a likely miscarriage of justice."

The inquiry will try to determine whether the actions of any police personnel or prosecutor should be subjected to "further review or investigation."

In this regard, almost all sides agree that commissioner Patrick LeSage and commission counsel Michael Code are the right people for this particular job.

LeSage is a judicial legend, having been the presiding judge in the trial and conviction of serial rapist and killer Paul Bernardo. That case serves as a personal link for LeSage with Code, a well-respected defence lawyer who, as a senior official in the Ontario Attorney General's office, negotiated the high-profile plea bargain with Bernardo's wife, Karla Homolka.

Bruce MacFarlane, Manitoba's former deputy attorney general, who was instrumental in getting LeSage and Code to take on the review of the Driskell case, said the buzzword for the inquiry will be "focused."

"Other inquiries have been very unfocused and the results suffered," MacFarlane said. "It will be a focused report and a helpful report, I think."

Despite the narrow focus, MacFarlane said he believes the inquiry will confront key questions that remain unanswered about this case, questions that must be answered if the public is to have any faith in the justice system. And for the all the answers to be questioned, MacFarlane said he thinks Driskell will have to testify.

Driskell did not testify at his 1991 trial. While he has given extensive media interviews, he has never been subjected to examination in a legal setting, MacFarlane noted. Driskell has not yet been asked to testify at the upcoming inquiry.

"Mr. Driskell has yet to publicly testify," he said. "The only observation is that's going to be an important part of the inquiry, for him to account for some things. Or to endeavour to account for some things." MacFarlane said there is no doubt mistakes were made in the Driskell case. However, it would be wrong to jump to the conclusion that there was malicious behaviour by any of the prosecutors.

"I do recognize the Canadian justice system is, a) based on humans, and b) based on human judgment calls," MacFarlane said. "When that is your foundation, you're going to have mistakes. But I haven't seen any maliciousness in the system yet.

"I've seen a lot of bad decision-making. That isn't a crime, but it can lead to wrongful convictions."

Although a witness list has yet to be released, it is expected the inquiry will lead off with Winnipeg police and RCMP officers involved in the original investigation and management of two key Crown witnesses.

Evidence uncovered years after Driskell's conviction showed that significant sums of money were paid to witnesses who testified against Driskell. In addition, witness Ray Zanidean, while under police protection, appears to have been promised immunity for a pending arson charge in Swift Current without the full approval of the Saskatchewan justice department.

Lawyer Richard Wolson, who has been retained by the Winnipeg Police Association to represent investigating officers at the inquiry, said he does not believe there is any need to take the inquiry into a discussion about who killed Perry Dean Harder. However, Wolson said he will be looking closely at the positions put forward by Driskell's counsel, who may try to take the inquiry in that direction.

Wolson said his clients -- the principal investigators and the officers who managed Crown witnesses -- will argue they made decisions and came to conclusions based on the best professional standards and information available to them at that time.

"From my perspective, this inquiry is about whether or not there was an injustice," Wolson said. "If there was, what was the cause of it? And, quite frankly, how can we learn from it?"

Although there are expected to be several dozen witnesses, a good deal of the attention will be focused on the testimony of two key players: Winnipeg Police Chief Jack Ewatski and Crown attorney George Dangerfield. Ewatski's career touched on all stages of the Driskell case. In 1993, he was called upon, with Insp. Bob Hall, to conduct an internal police review of the Harder murder investigation. This review has been identified as a key issue in the miscarriage of justice. Later, as chief, Ewatski turned back numerous requests to release the report. He told the Free Press in a 2000 interview there was absolutely nothing in the report that would help Jim Driskell.

However, both the Manitoba Court of Queen's Bench and the federal Justice Department felt the Ewatski-Hall report contained new evidence relevant to Driskell's claims of innocence.

Ewatski would not comment on the specifics of Cotler's decision to quash the Driskell conviction. A statement issued by the Winnipeg Police Service said it "accepts and respects the decisions announced today by both the federal and provincial justice ministers." The service also supported the view of Manitoba Justice that the stay of proceedings "is not a recognition of factual innocence."

Dangerfield, as lead prosecutor at Driskell's trial, will face many questions from commission counsel about his management of the Driskell case, In particular, he will be asked why the crown failed to disclose to Driskell's lawyers concerns expressed by Saskatchewan Justice, after Driskell's conviction, that Winnipeg police had offered Zanidean, a key witness, an unauthorized immunity deal. Zanidean testified in court he had not received immunity for any pending charges.

Dangerfield's lawyer, Jay Prober, said he expects the Driskell inquiry to be a fair and effective forum that will likely bring greater understanding of the events surrounding the original murder investigation.

Prober said the Enns' review suffered from a lack of documentation, a problem that will not face the Driskell inquiry.

"Judge Enns purported to make findings when he didn't have all the information in front of him," Prober said. "I expect the inquiry will be very thorough and all the information will come out. And I think the (LeSage) will reach much different conclusions than Judge Enns."

Toronto lawyer James Lockyer and Winnipeg colleague Alan Libman, both of the Association in Defence of the Wrongly Convicted, will represent Driskell at the inquiry. Lockyer said in an interview he hopes the main outcome is an admission by the justice system that Driskell is factually innocent.

Lockyer said although that is not part of the inquiry's mandate, he is confident Manitoba will be forced to make this admission once all the details of the case come out at the inquiry. "I think there will be an acknowledgment of Jim Driskell's innocence," said Lockyer. "That's something we hope comes as a result of the commission, not from the commissioner directly. There needs to be an acknowledgment from the government of Manitoba that Driskell did not kill Perry Dean Harder."


The inquiry's assignment

THE scope of the commission's mandate is set by order-in-council No. 479/2005 and it is:

• To examine the conduct of Crown counsel and consider whether the conduct fell below the professional and ethical standards expected of prosecutors at the time.

• To inquire whether the Winnipeg police failed to disclose material information to the Crown at any time and if it contributed to a likely miscarriage of justice.

• To give advice about whether the conduct of Crown counsel or police should be referred to an appropriate body for further review or investigation.

• To consider the role of the RCMP laboratory.

• Examine any systemic issues that may arise out of its role.

• Give advice about whether any aspect of this case should be further studied, reviewed or investigated, and if so, by whom.

• Advise about whether and in what way a determination or declaration of wrongful conviction can be made in cases like this.

• Make systemic recommendations arising out of the facts of the case that the commissioner considers appropriate.


Key players in the Driskell murder case

George Dangerfield

George Dangerfield

Now in private practice, Dangerfield was for many years the top gun in the Crown attorney's office. George Dangerfield (right) was criticized by former Supreme Court justice Peter Cory in the Thomas Sophonow inquiry for his role in the prosecution's failure to disclose key evidence to Sophonow's lawyer that contributed to his wrongful conviction.

Bruce Miller

During the Driskell case, Miller was director of public prosecutions. Five months after Driskell's conviction, he was given new evidence by Saskatchewan attacking the credibility of a star Crown witness. While there seems to have been a consensus the evidence should be disclosed, it was never provided to Driskell's lawyer.

Miller died last year after a long battle with cancer. At the time, he was associate chief judge of the provincial court. His estate will have legal representation at the Driskell inquiry

Stuart Whitley

As assistant deputy minister of justice in 1992, Whitley was one of the Justice Department's most senior officials and formed a critical link between the prosecutions branch and the highest levels of the department, the minister and deputy minister. Whitley was aware of the Saskatchewan materials but appears to have issued no directive they be disclosed to Driskell's lawyers. The inquiry will examine what role if any he played in the failure to disclose it.

Whitley, who has published two novels, is currently a senior counsel with the federal Justice Department in Vancouver.

Jack Ewatski

Jack Ewatski

Now chief of the Winnipeg Police Service, Jack Ewatski (right) was asked in 1992 by former chief Dale Henry to conduct a review of the Driskell investigation after news media raised concerns Driskell was wrongly convicted. His 175-page report remained confidential until late 2003, when a Winnipeg judge ordered it released to the public.

Both the Manitoba Court of Queen's Bench and federal Justice Department found the report contains new evidence on the case that helped Driskell's claims of innocence. Ewatski continues to argue he uncovered no new evidence that would help Driskell prove his innocence.

Greg Brodsky

A prominent defence lawyer who represented Driskell at his murder trial, Brodsky maintains he was never told about new evidence from Saskatchewan, even though it was provided to Manitoba Justice months before his appeal. To this day, Brodsky believes Driskell was wrongly convicted.