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James Driskell

Winnipeg Chief Ewatski and Manitoba Justice Minister Mackintosh scramble to keep the truth secret

Province agrees to more hair DNA tests in murder case

James Driskel

The Manitoba Justice Department has agreed to move ahead with additional DNA tests in a bid to settle the issue of James Patrick Driskell's innocence.

Bruce MacFarlane, assistant deputy minister of justice, said his department is assembling an inventory of all remaining exhibits from the original murder investigation to see if any other pieces of physical evidence warrant DNA testing.

Once that inventory is completed, MacFarlane said he will meet with Driskell's legal team to decide which pieces of evidence might yield DNA results, where they should be tested and who should pay.

Driskell was convicted in 1991 for the first-degree murder of Perry Dean Harder, whose remains were found in September 1990. He had been shot several times in the chest.

George Dangerfield

Along with James Driskell, Dangerfield successfully convicted Thomas Sophonow, Kyle Unger, and Frank Ostrowski Sr. All four convictions have been overturned.

Driskell has consistently protested his innocence.

DNA results received last December eliminated three hairs the Crown [George Dangerfield (right)] introduced as evidence. A Free Press investigation has uncovered a number of new facts, including confirmation that a key witness tried to recant his testimony and the revelation that witnesses were paid tens of thousands of dollars in exchange for their testimony.

MacFarlane said the province is not yet prepared to join with Driskell's lawyers to ask the federal government to send the case back to the Manitoba Court of Appeal.

MacFarlane said the DNA results are "unsettling" and require an independent, third-party review.

The province has recommended Driskell file an application under Sec. 696 of the Criminal Code, which allows the federal justice minister to review and overturn possible miscarriages of justice.

Alan Libman, one of Driskell's lawyers, said Sec. 696 allows the minister to refer a questionable conviction to a court of appeal, including the Supreme Court of Canada. However, without consent from Manitoba, it will take years for the federal Justice Department to review Driskell's submission, Libman said.

Driskell's legal team has identified three pieces of evidence collected in the original murder investigation which may prove useful in supporting Driskell's claim of innocence.


New trial for Driskell?
More DNA tests sought to put case before Appeal Court

Justice Minister Gord Mackintosh is studying a plan devised by lawyers for James Patrick Driskell to launch a new barrage of DNA tests and put his case back before the Manitoba Court of Appeal to determine if a new trial is warranted.

Lawyer James Lockyer, the lead lawyer representing Driskell, asked Mackintosh yesterday to join him in asking the federal government to refer Driskell's case back to the Manitoba Court of Appeal under Sec. 696 of the Criminal Code.

Lockyer has also asked that at least three additional pieces of physical evidence from Driskell's case be subjected to DNA testing.

Lockyer said he is not asking Mackintosh to support Driskell's claims of innocence, but simply to allow a court of law to hear new evidence and decide whether a new trial is necessary. Without Manitoba's support, it could take years to negotiate the federal review process.

"All we're asking is for them to concede that this case ought to be heard in a courtroom," said Lockyer. "No more, and no less."

Mackintosh was not available for comment yesterday, but a spokesman said the justice minister is "considering" Lockyer's offer. However, the Driskell legal team may have presented an option that gives Manitoba a practical solution to the dilemma of how best to deal with this complex case.

Mackintosh previously said he would support a Sec. 696 review, which allows the federal justice minister to overturn or review a questionable conviction.

However, Mackintosh has so far stopped short of supporting the Driskell team's desire to have the case back before a court of appeal.

Driskell was convicted in 1991 of the first-degree murder of his friend, Perry Dean Harder. Harder's decomposed body was found in a shallow grave near Brookside Boulevard and Logan Avenue in September 1990. He had been shot several times in the chest.

Driskell was sentenced to life in prison with no chance of parole for 25 years. He has consistently protested his innocence.

Driskell's case languished for much of the last 12 years until it was taken up by the Association in Defense of the Wrongly Convicted.

At a news conference yesterday, Driskell was flanked by some of the association's foremost advocates, including Rubin 'Hurricane' Carter, who spent 22 years in a New Jersey prison for a murder he did not commit, and Joyce Milgaard, the crusading mother who helped free her son David after 23 years in jail wrongly convicted of murder.

"Jim Driskell did not commit a crime," said the flamboyant Carter, now a Canadian citizen. "The crime was actually committed against Jim Driskell."

Driskell's case is also slated to be reinvestigated by Centurion Ministries, the New Jersey-based organization that freed David Milgaard. The foremost group fighting for the wrongly convicted in North America, Centurion Ministries has exonerated 26 life and death-row prisoners.

"This is a case of complete factual innocence," said Jim McCloskey, Centurion's executive director.

Driskell said he is overwhelmed by the support he is getting from the Association in Defence of the Wrongly Convicted (AIDWYC) and others, although he is still prepared for a lengthy battle to prove his innocence.

"I did not kill Perry, I want to make that very clear," Driskell said.

Driskell is taking comfort from the fact that evidence used to convict him is falling apart. DNA tests, paid for by the province, have already eliminated three hair strands that formed a critical part of the Crown's case against Driskell.

Hairs were found in a van that police informants testified was used in the murder. An RCMP expert testified the hairs belonged to Harder, but the DNA tests showed that to be untrue. In fact, not only were the three hair strands not Harder's, they were not from the same person.

Although Mackintosh said he found the DNA results "unsettling," a committee of prosecutors from his department determined the exclusion of the hairs would not have altered the jury's verdict.

NEW FACTS

However, a Free Press investigation uncovered a number of new facts that have raised additional doubts about Driskell's conviction.

The new facts include evidence that police were aware that a key witness tried to recant his testimony, and that the Crown paid out more than $60,000 to compensate and relocate two star witnesses.

The jury at Driskell's trial, which deliberated for 28 hours before returning a guilty verdict, never heard about the compensation deals that had been arranged for two witnesses.

Driskell's legal team is also lobbying Mackintosh to compel the Winnipeg Police Service to release a 1993 review of the case, which appears to contain new evidence. Winnipeg Police Chief Jack Ewatski, one of the co-authors of the report, has so far refused to relinquish the report and disputes the suggestion any new evidence was uncovered.

Ewatski said he will co-operate fully with a Sec. 696 review. However, short of a court order, he will not voluntarily provide the 175-page report to Driskell's legal team.

"It's not appropriate, and there's no need to step outside that (Sec. 696) process at this time," Ewatski said.

It appears that more DNA tests will be done on evidence from Driskell's case. The Manitoba Justice Department is now prepared to do a complete audit of all physical evidence collected from the original investigation to determine if there are any other items that can be tested for DNA, the minister's spokesman confirmed.

Lockyer said there are several other items from the original murder investigation -- including cigar and cigarette butts found near Harder's gravesite -- which he believes could be tested for DNA. Although none of the items would clearly exonerate Driskell, they could further weaken the case against him if his DNA is not found on them.


Police withholding evidence:
lawyers: Could trigger new trial for Driskell

The Winnipeg Police Service is withholding the results of an internal review of the 1991 James Driskell murder case, including "fresh and material evidence" that could trigger a new trial, lawyers for the Association in Defense of the Wrongly Convicted have charged.

Toronto lawyer James Lockyer, who is representing Driskell in his bid for a new trial, said he has asked Attorney General Gord Mackintosh to compel Winnipeg police to release the review's findings.

Lockyer said that if Mackintosh refuses to help obtain the report, he is prepared to take police to court to seek its release.

"As far as I'm concerned, they have no choice but to give us the report," said Lockyer. "We know that it has fresh and material evidence and we must have that to properly review Mr. Driskell's case. If they won't do the right thing, I've told them our alternative is to apply to the courts for the release of the report."

Winnipeg police Chief Jack Ewatski has consistently refused to release the results of the review, launched in 1993 in response to media reports questioning Driskell's guilt in the 1991 slaying of Perry Dean Harder.

In fact, all Ewatski will say about the report is that it did not uncover any evidence "which would lead us to believe James Driskell was not involved in the death of Perry Dean Harder."

However, in a January 2001 interview with the Free Press , Ewatski revealed a number of new facts uncovered in the review that have never before been disclosed.

These new facts include:

  • Confirmation that Winnipeg police had evidence a key Crown witness, Ray Zanidean, tried to recant his testimony. Despite this knowledge, police failed to re-interview Zanidean during the internal review;
  • The conclusion of investigators conducting the review that despite his statements to the contrary, Zanidean's main motivation for testifying against Driskell was financial gain. In fact, Zanidean would be the beneficiary of tens of thousands of dollars in relocation expenses;
  • The existence of a taped statement by an inmate at Stony Mountain penitentiary, who contacted the RCMP and alleged that a Winnipeg police officer was involved in the murder. To date, Ewatski has refused to identify the informant or the officer.

The review was launched at the request of then-chief Dale Henry in March 1993 following a series of media reports that questioned Driskell's guilt. Ewatski, one of the authors of the 175-page report, said the review was classified as an internal investigation and was never intended to be released to the public.

Harder's body was found in a shallow grave near railway tracks east of Brookside Boulevard in September 1990. Police alleged that Harder was killed because he implicated Driskell in a series of break-and-enters.

Ray Zanidean

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

Perhaps the most surprising revelation in the 1993 police review is that police found clear evidence that Ray Zanidean tried to recant his testimony.

On June 20, 1991 -- a week after the trial concluded -- Driskell's lawyer, Greg Brodsky, received an anonymous phone call from a man claiming a key witness lied because he had been threatened by police. The caller said police coached the witness on what to say in written statements and while on the witness stand.

Brodsky said he always suspected the call came from Zanidean, but he was unable to confirm that. He never heard from the male caller again.

Unbeknownst to Brodsky or Driskell, Winnipeg police uncovered the identity of the caller during their 1993 review. Ewatski confirmed that on the day Brodsky received the anonymous call, Zanidean was still in protective custody in a Winnipeg hotel. A search of the hotel bill for that day uncovered a phone call from Zanidean's room to Brodsky's office, minutes after police decided to discontinue protective custody.

On the basis of that information, Ewatski said he tried to contact Zanidean about the phone call, but Zanidean refused to be interviewed. The police review did not have the power to compel any witness to talk.

"There were a number of questions that we would have loved to ask Mr. Zanidean," Ewatski said. "Obviously, the phone call would have been one of them. We wanted to hear from him but he never gave us that opportunity to ask him those questions. That still leaves a bit of a hole, doesn't it?"

Ewatski has also been particularly reluctant to discuss the relocation deals provided for the two police informants whose testimony was the key evidence against Driskell.

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.

The jury at Driskell's trial heard few details of what the Crown offered Zanidean and fellow key witness John Gumieny, a convicted rapist. Zanidean was asked by Driskell's lawyer about a relocation deal, but Zanidean denied he was being paid anything more than money for a room and just under $50 a day for meals.

In a subsequent interview, Ewatski was adamant that while police did provide protective custody, the witnesses were not provided with any assistance with relocation.

As for Zanidean, Ewatski said he was a demanding witness who was sent on his way after the trial without any help from authorities. "It was a mutual decision of Mr. Zanidean and authorities that he would get on with his life without the formal involvement of justice officials," Ewatski said.

However, a Free Press investigation subsequently revealed that Zanidean received tens of thousands of dollars to cover rent for a safe house, hotel bills, meals, and moving expenses prior to the trial.

Zanidean, a convicted thief and self-admitted arsonist, received an elaborate deal in which police watched over him for more than six months, paid his legal fees and even covered mortgage payments that were in arrears. The big payoff came after the trial, when the Crown gave him a $20,000 lump-sum payment to assist him in starting a new life.

Revelations about Zanidean's attempt to recant and the refusal of police to divulge what they know about witness compensation, are the latest in a series of revelations about the apparent weakness of the case against Driskell.

In December 2002, DNA test results eliminated a key piece of evidence used at Driskell's trial. Hairs found in a van once owned by Driskell, which was allegedly involved in the murder, were originally matched with hairs from Harder's body by an RCMP hair and fibre expert.

Lockyer said although there is no specific precedent to address this situation, Canada's highest courts have consistently supported the efforts of lawyers seeking disclosure of police and prosecution records for post-conviction review.

The Manitoba Justice Department has already agreed to release all of its records to Driskell's lawyers. However, deputy justice minister Bruce MacFarlane said department officials cannot provide a copy of the Winnipeg police review because they have not seen it.

Mackintosh has not yet formally responded to Lockyer's request to compel Winnipeg police to release their report.


Winnipeg Free Press Editorial - New trial warranted

Manitoba Justice Minister Gord Mackintosh should become actively involved in ensuring that James Patrick Driskell was not a victim of a miscarriage of justice when he was convicted of murder 12 years ago. Mr. Mackintosh should begin by ordering Winnipeg Police Chief Jack Ewatski to release a 175-page review of the prosecution that Mr. Ewatski himself conducted in 1993. Mr. Mackintosh should also make common cause with Driskell's lawyers in petitioning the federal justice minister to review the conviction for the purpose of ordering a new trial.

Driskell was convicted in 1991 of the shooting death of Perry Dean Harder, a thief with whom he was involved in a chop shop operation. Driskell and Harder were jointly charged with possession of stolen property. Five days before the preliminary hearing into those charges was to begin, Harder disappeared. His badly decomposed body was discovered nine months later in a shallow grave. He had been shot three times in the chest. Driskell was subsequently charged and convicted of the killing. It was argued that Driskell killed Harder to prevent Harder from giving testimony that would have been damaging to Driskell.

As a motive, killing Harder to shut him up was always weak. Evidence showed Harder was prepared to accept a plea bargain that would have prevented him from testifying against Driskell, and Driskell knew it. Nevertheless, Driskell was convicted largely on the testimony of two informants, both of whom gained from their actions. One of the informants was paid a lump sum of $20,000 at the conclusion of the trial, in addition to myriad other payments for the necessities of life while he was under a witness protection program. The same informant had admitted under oath to setting fire to a house in Saskatchewan, the investigation of which was never concluded and no charges were laid despite the admission to arson. The jury was not aware of the advantages the informants obtained in return for their testimony.

Another key piece of evidence at the time has since been discredited. Three strands of hair found in a van belonging to Driskell, a van that was purported to have been used to remove Harder's body to the place of the shallow grave, were said to have been identical to Harder's hair. DNA tests of the hair, conducted in Britain last year at a cost to the province of $20,000, have established that the strands could not have been Harder's hair.

That the jurors, who deliberated 28 hours before reaching a verdict, were not aware that witnesses at the trial might have been compromised by deals they were making with police and the Crown, and that hair evidence (the only physical evidence that even remotely linked Driskell to Harder's corpse) was false, strongly suggest Driskell's intitial trial was a miscarriage of justice.

But there is more. The review undertaken by Mr. Ewatski in 1993 was ordered after the media sensationally reported that the RCMP had been informed of allegations that Driskell was innocent and that it was a member of the Winnipeg Police Department who had killed Harder. In addition, Mr. Ewatski's review uncovered evidence to the effect that one of the informants had tried to renounce his testimony after the trial, claiming that he had been coerced by police into giving false testimony.

Mr. Ewatski refuses to release his 10-year-old report. That he both wrote the report as an investigator and that he now refuses to release it as chief of police appears to be a clear conflict of interest for Mr. Ewatski. Mr. Macintosh should dispel any hint of conflict by ordering Mr. Ewatski to release the report so that lawyers representing Driskell can see whether it contains information helpful to an appeal for a new trial.

Mr. Macintosh should also order the release of the report in order to dispel any suspicion that the original and subsequent investigations of Harder's slaying were in no way tainted. Long memories and the Curry report on the wrongful prosecution of Thomas Sophonow both remind us that the era in which Driskell was convicted was not an era in which police methods could be said to have been the best. Tunnel vision, which occurs when investigators become convinced of a suspect's guilt and focus on only those facts that support the prejudice, and the use of questionable testimony from informants, were common at the time. It must also be remembered that department was recovering from the conviction of two officers in the killing of a snitch and had been under fire for questionable sting operations aimed at catching thieves. That time too was the era of the speedy exoneration of the police officer who shot J.J. Harper.

But mostly Mr. Macintosh should accept that it is possible that Driskell is a victim of a miscarraige of justice and appeal to his federal counterpart to review the case with an eye to a new trial. He has said that he believes a new trial is not necessary, that he is convinced a jury would come to the conclusion that Driskell is guilty without misleading evidence to the effect that Harder's hair was found in Driskell's van. But he cannot know that, and if he cannot know it, how then can he conclude it?

As Allan Lidman, one of Driskell's lawyers, said yesterday, "I am not convinced that he is factually innocent, but I believe without doubt he is a victim of a miscarriage of justice."


'Hurricane' Carter joins fight to free inmate

Rubin 'Hurricane' Carter

Rubin "Hurricane" Carter -- the boxer who served 20 years in a New Jersey penitentiary for a murder he didn't commit -- will visit a Manitoba prison today to demand a new trial for convicted murderer James Driskell.

Carter, whose struggle was immortalized in a Bob Dylan song called Hurricane, and a Hollywood movie The Hurricane, is now the executive director of the Association in Defence of the Wrongly Convicted. He will host a press conference this morning at the Rockwood Institution, Driskell's home since his 1991 conviction for the murder of his friend, Perry Dean Harder.

As recounted in a Free Press investigation published recently, DNA testing has cast doubts on a key piece of evidence linking Driskell to Harder's murder.

At Driskell's trial, forensic experts testified that three hairs found in Driskell's old van matched Harder's. The van was believed to have been used in the murder.

DNA testing suggests the hairs found in the van came from three separate people -- none of them Harder.

Carter and the association are asking that Driskell's conviction be quashed and new trial ordered.

Also on hand at today's press conference will be Joyce Milgaard, who fought for two decades to free her son David from a Saskatchewan prison, where he was incarcerated for a murder he did not commit.

Alan Libman, an association director based in Manitoba, said the group's short term goal is to get more evidence disclosed from the Crown in order to determine Driskell's factual innocence. And, the group is asking for the release of a review of the case done by Winnipeg Police in 1993. The report has never been made public.


Who killed Perry Harder?

Host: Danielle Smith

Guests: Jim Driskell; Alan Libman; Dan Lett, Winnipeg Free Press; Jim McCloskey, Centurion Ministries; Hersch Wolch, former Milgaard defence lawyer

Danielle Smith: Good evening everyone. I'm Danielle Smith in Calgary. Welcome to Global Sunday the forum for the issues and topics that matter most to Canadians.

Tonight, in a country where Karla Homolka spends twelve years in prison for her role in the deaths of three teenage girls and Inderjit Singh Reyat, gets five years for helping to murder 329 people, it's no wonder Canadians are losing faith in the justice system.

You are about to meet James Patrick Driskell, convicted of murdering just one person, Driskell received a mandatory life sentence, twenty-five years. He has always denied killing his friend Perry Dean Harder. He may be innocent. He may be guilty. We don't know. What we do know is that he is thirteen years into his sentence and there is new evidence suggesting he did not receive a fair trial. It also appears our justice system has learned little from the wrongful convictions of David Milgaard, Thomas Sophonow and Guy Paul Morin. Eva Kovacs of Global Winnipeg explains.

Jim Driskell: My faith and trust in the justice system has withered away over the years.

Eva Kovacs: Jim Driskell has been in prison for more than a decade, serving a life sentence for first degree murder. He's already spent nearly thirteen years behind bars and faces at least twelve more for a crime he has always said he did not commit.

March 10, 1994

[Unknown Male]: Did you kill Perry?

Jim Driskell: No. I did not kill Perry. I have said it time and time again and I'll keep on saying it.

Kovacs: And to this day Driskell maintains his innocence.

Driskell: Perry was a friend of mine and I wouldn't kill anybody let alone a friend.

Kovacs: In September of 1990 the badly decomposed body of twenty-nine year old Perry Harder was discovered in this grassy field near the edge of Winnipeg. Harder was shot several times with a 22-calibre gun and his remains were found half buried in a shallow grave.

Winnipeg Police Spokesperson: Oct. 1, 1990: Basically the body consists of skeletal remains.

Kovacs: The police investigation revealed Harder's body had been disposed of three months earlier and Jim Driskell was charged with his murder. Police say Driskell had a strong motive he and Harder had both been charged in connection with a series of break-and-enters after police raided a former chop shop at this garage back in 1989. Driskell said he had nothing to do with the criminal activity. But according to police Harder named him as an accomplice. Coincidently a week before Harder was to appear in court on those charges, he vanished. In less than a year later a jury sentenced Driskell to life in prison.

Driskell's Sister: There's no justice. It's not fair. He's not guilty. And I know that. Everybody knows that.

Kovacs: The first-degree murder conviction stunned Driskell and his family.

Driskell: It's like you get hit in the head with a baseball bat or a cinder block you know. It's a total shock because you just can't believe it that something like this has actually happened. In this day and age you know where everything's supposed to be fair, it just wasn't.

Alan Libman: The evidence presented at his trial was wrong.

Kovacs: Alan Libman has been researching Driskell's case for more than three years. He's part of a group of lawyers dedicated to helping the wrongfully convicted. AIDWYC, The Association In Defence of the Wrongfully Convicted has worked on high profile cases involving Thomas Sophonow, David Milgaard and Guy Paul Morin.

Alan Libman: We're pursuing the truth to determine if Mr. Driskell's factually innocent. Right now we believe he's a victim of miscarriage of justice because of evidence that we've uncovered in the last several years.

Kovacs: Results from a recent DNA test have left a fracture in the Crown's case against Driskell. At the time of his trial in 1991, there was no DNA testing. Instead RCMP used a less sophisticated method, which linked the hair on Harder's head with three hairs found in Driskell's van. A vehicle two Crown witnesses said could have been involved in the murder.

Libman: They talked about Jim Driskell saying he was going to kill Perry Harder and he was going to use his van to transport the body. But we now know that those hairs do not match. That is something we think the jury should have known, something that would have affected the verdict.

Kovacs: Even with DNA evidence proving the hairs came from three different unknown individuals, not from Harder, Libman is still digging for more details to determine whether Driskell is innocent and if he's entitled to a new trial and that has left Driskell with a renewed sense of hope, hope that he might leave these prison walls for good.

Driskell: I'm the one that's fighting for my life and it's going to be a fight you know and I ain't given up on it because I did not kill Perry.

Kovacs: For Global Sunday, I'm Eva Kovacs.

Smith: Thank you Eva. So has our justice system learned from past mistakes? Is Jim Driskell the next David Milgaard? He's our panel: In Winnipeg, Jim McCloskey, Executive Director of the New Jersey based Centurion Ministries. Thanks for being with us Jim.

Jim McCloskey: Thank you. Good to be here Danielle.

Smith: With Jim is Dan Lett, Senior Reporter for the Winnipeg Free Press. Welcome to Global Sunday Dan.

Dan Lett: Thank you.

Smith: And with me in Calgary Hersch Wolch, lead defence lawyer in the David Milgaard case. Hello Hersch.

Hersch Wolch: Hello Danielle.

Smith: Dan, we'll start with you on Friday you reported that the Manitoba government was going to launch a review process in part because of the Driskell case, is that going to help Jim Driskell out?

Dan Lett: I don't think that the....there's an immediate implication for Mr. Driskell...they did test hairs used in his case. The DNA test excluded that as evidence and now there's a fairly important difference of opinion about how important that evidence was to the original trial. I think the fact that they...the government is willing to test hairs in a wide variety of other criminal cases is an intriguing strategy by the provincial government and it's one that we're still trying to really figure out.

Smith: Jim, can you comment on this, if you test and you find evidence that the physical evidence should be thrown out but then you don't have it retrialed, what value is the review process?

Jim McCloskey: Well first of all the hair evidence in our view was extremely important evidence against Jim Driskell because what it did, it corroborated the testimony of the two star witnesses against him, both career criminals who the jury could have been very sceptical about because their stories to the jury, the victim was put in Driskell's van as part of the plot to kill him and that hair evidence corroborated the story. So if you're a jury member you would...if there was any dispute about the credibility of these two witnesses, it would be backed up by the scientific evidence, and now it turns out that was wrong so that was very important.

Smith: Right. Hersch, what do you think, is this review process just window dressing?

Hersch Wolch: Well it depends what it comes to in the end but my main complaint with this case and all others is the time delays that no matter how strong a case appears, and this one appears very strong for something to be done, the time just seems to drift by year after year in...if you look at the cases where there's been exonerations...numbers like five, six, seven years is not unusual. My biggest fear is not so much that Driskell might eventually be cleared, but when...

Smith: Right

Wolch: ...is what I'm concerned about.

Smith: Jim, you have worked with Centurion Ministries and helped to free 26 people on death row charges, what do you find about this case that's similar to what you've dealt with in the United States?

McCloskey: Uh, I've also worked with the David Milgaard case, with Hersch as well and what we see in this case, it has the common earmarks of wrongful conviction is that it's pretty apparent that the police had conducted their investigation with what we call a telescopic focus on a star suspect, this case Jim Driskell and what they do is their...in conducting their quick and ferocious investigation and interviewing of witnesses, they're very derisive and even dismissive of evidence that emerges that goes to the innocence of the suspect and what they do is they try and through coheresive tactics or offering unusual favours to these common criminals who are their star witnesses, they get people to say what they want to say in order to secure their conviction.

Smith: Right, but Dan isn't it the case that Jim Driskell had been in trouble with the law before? Wouldn't it have made him an obvious suspect?

Lett: Um I think uh based on what Jim just said, he was in fact an obvious suspect. But I think the problem is that the methodology of a lot of police investigations and this is a very good example, um, do not at any time try to disprove their own theory. They develop a theory very early on and merely look for the evidence that supports that. And I think, as been the case in almost every wrongful conviction I've written about. They dismiss evidence that might weaken their case. They hide it from time to time and overall they put pressure on everybody involved to support the original theory. In this particular case, we made the point in one of our stories that the moment he was picked up first for questioning, they decided that he was guilty...

Smith: Right.

Lett: ...at that point and that's not...that's not a good way to approach it.

Smith: Right, but Hersch, doesn't every criminal...every inmate say they're innocent?...

Wolch: No....

Smith: ...What makes this guy different?

Wolch: Many don't say they're innocent...

Smith: Okay.

Wolch: ...and...and not that many maintain innocence over many many years. The fact is many are innocent and we know of many who've been wrongly convicted

Smith: How common is it?

Wolch: Well, Jim can tell better than I, but very common it's... and if I may just have one point...

McCloskey: Sure.

Wolch: ...The word that we'd use is tunnel vision. It's a tunnel vision where the police have a suspect in mind and they're totally focused on that person and their theory becomes reality when people who aren't that strong or aren't that honest or are manipulated into given them what they want.

Smith: Right, Jim, quickly, how common is this?

McCloskey: And in the United States it's far more common then people expect. I liken it to wrongful conviction in the U.S. is about as rare as a pigeon in the park. There are many such folks languishing in prisons today with their cries of innocence falling on cynical...cynical minds.

Smith: Alright, we'll take a quick break now. We'll be back to discuss the details of the Driskell case. Canada's number one current affairs talk show Global Sunday continues in two minutes.


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Cynthia Benaicha: (416) 350-6022