A major rift has opened between the Winnipeg Police Service and Manitoba Justice over the James Driskell murder case.
Manitoba's deputy attorney general alleged yesterday that Police Chief Jack Ewatski failed to provide Crown prosecutors with evidence uncovered in an internal review of the original murder investigation.
Just hours after Ewatski told reporters that police provided prosecutors with "all available evidence" on the Driskell case, Bruce MacFarlane issued a statement indicating his department was never told about some of the findings in the 1993 review of the case.
MacFarlane said Ewatski's claim was "inconsistent with the information in the Crown's file."
The homicide review, which was not made public for more than a decade, was only provided to Manitoba Justice three weeks ago as part of the federal government's investigation of Driskell's claims he was wrongly convicted.
When it was finally examined by prosecutors, it was determined "a number of issues (the review) explores are not reflected in the documents in the Crown's office," MacFarlane said.
Ewatski said in an interview last night he wants to meet Crown officials this morning to discuss what he stated at his news conference yesterday, and to address any misunderstanding.
"I don't know where the gap is," he said. "All evidence we reviewed was in the Crown's possession. I'll stand by that report."
Ewatski also said there was no bad blood between his office and the provincial Justice Department.
"And certainly not a rift between us and the prosecutions office. That is not the case."
Ewatski also said the current controversy would not affect his postion with the city. He has been in talks with the City of Winnipeg this fall to extend his five-year contract, which expired Nov. 3
"I am doing the job I was tasked to do. I am trying to do it to the best of my ability," he said.
MacFarlane's statements yesterday added to the growing pressure on Ewatski over his decision not to release the homicide review, which Driskell's lawyers believe will be a key to overturning his first-degree murder conviction.
Ewatski said his 175-page review of the 1991 Driskell investigation -- which was finally released to the public Monday on the order of Court of Queen's Bench Associate Justice Jeffrey Oliphant -- contained no new evidence, and that everything that was uncovered was provided to Crown prosecutors.
Ewatski's claim the report contains no evidence supporting Driskell's claims of innocence is being challenged on a number of fronts.
In ordering Ewatski's review released to the public, Justice Oliphant -- who admitted to reading the 175-page review several times -- said its contents "are relevant not only to (Driskell's) application for judicial interim release, but also in my view, in assisting in demonstrating his conviction for first-degree murder may have been a miscarriage of justice."
Based in large part on Ewatski's review, and DNA tests that ruled out the relevance of three hairs used to convict Driskell, the federal Justice Department has ordered an investigation on the basis that a miscarriage of justice likely occurred.
Tomorrow, Court of Queen's Bench Justice John Scurfield will hear an application to release Driskell on bail pending the completion of the federal investigation of his claims of innocence.
Ewatski would not comment on the contents of his review, but repeatedly noted there was "no new evidence" contained in the report. He also said it was not the responsibility of the Winnipeg Police Service to forward any information directly to defence counsel or "anyone other than the Crown."
Ewatski said "all the evidence produced by police was provided to the Crown," but he also noted that a copy of his report, which many including Driskell's legal counsel argued contains new evidence, was not viewed by anyone outside the Winnipeg Police Service.
Driskell has been in prison since 1991 for the first-degree murder of his friend Perry Dean Harder. Convicted without a witness, confession or murder weapon, Driskell has steadfastly maintained his innocence.
The Ewatski review of the Harder investigation was sparked by media reports in 1993 suggesting Driskell was wrongly convicted, and a tip that a police officer was involved in the murder. Ewatski and three other senior officers were asked by then-chief Dale Henry to determine whether police had acted improperly at any stage of their investigation.
The six-month review concluded "there was no new evidence that would lead us to believe James Driskell was not involved in the death of Perry Dean Harder."
Ray Zanidean - RCMP informant paid to perjure testimony against Jim Driskell. Allowed to get away with serious arson.
The review did contain a number of new facts, including evidence that Winnipeg police offered a key witness, Ray Zanidean, immunity from arson charges in Swift Current without seeking approval from Saskatchewan Justice. The review also concluded that Zanidean "very likely" committed perjury when he testified against Driskell, and that he tried to recant his testimony shortly after Driskell was convicted.
At several points in the report, Ewatski and the three other officers who helped with the review noted that some findings could be used successfully by the media to embarrass Winnipeg police and "cast a shadow of doubt and suspicion" on the Driskell conviction.
There were tough questions yesterday also for Manitoba Justice Minister Gord Mackintosh, who is facing allegations senior members of his department were also guilty of failing to disclose evidence on the Driskell case.
MacFarlane said he is disturbed by allegations Justice officials withheld crucial information from Driskell's defence team. But he did not admit the province made any mistakes in the handling of the case.
He said he's pleased an independent review of the case is underway, despite the fact it took over 10 years to be launched.
Mackintosh refused to say whether the Crown will oppose Driskell's bail application.
The thorniest issue for Mackintosh is the unauthorized immunity deal offered to Zanidean, which was detailed in letters to senior Manitoba prosecutors from the Saskatchewan Justice Department in January 1992, five months after Driskell's conviction and 10 months before his appeal.
Saskatchewan officials urged Manitoba to provide the information to Driskell's lawyers as part of ongoing legal obligations to disclose all relevant materials to the defence.
Along with James Driskell, he successfully convicted Thomas Sophonow, Kyle Unger, and Frank Ostrowski Sr. All four convictions have been overturned. Dangerfield gets no respect.
The information was sent directly to Bruce Miller, who is now a provincial court judge, but who was director of prosecutions for Manitoba Justice in 1992. Miller elected not to provide the information to Driskell's lawyers, and instead provided it to Crown prosecutor George Dangerfield (right) to "make whatever use of it is appropriate in the circumstances," as Miller worded it in a memo to Dangerfield.
Miller continued to discuss the Saskatchewan materials with Dangerfield and Stu Whitley, then the assistant deputy minister of justice, well into 1993, months after Driskell's appeal was turned down.
Miller declined to comment on the revelations yesterday. Dangerfield could not be reached for comment. Whitley, now counsel with the federal Justice Department in Vancouver, directed all questions on the Driskell case to MacFarlane, who declined to comment.
This is not the first time allegations of failing to forward evidence have been levelled at Dangerfield. In 1981, Dangerfield was the lead prosecutor on the Thomas Sophonow case. It was later proved Sophonow was wrongfully convicted of the murder of Barbara Stoppel.
Justice Peter Cory, who led an inquiry into Sophonow's conviction in 2001, uncovered numerous instances in which the Crown failed to share vital information with defence lawyers.
Mackintosh said the coincidence was "interesting" but did not commit to conducting his own review of the Crown's role in Driskell's conviction.
For more than a decade, Winnipeg Police Chief Jack Ewatski failed to disclose evidence about the James Driskell murder case that showed police struck a secret immunity deal with a key Crown witness.
Some of the most senior officials from Manitoba Justice were alerted to the unauthorized immunity deal to save the witness from facing arson charges in Saskatchewan. But Justice officials they failed to disclose it to Driskell's lawyers despite the urging of the Saskatchewan Justice Department.
Ewatski's failure to disclose this information was "inexcusable," said James McCloskey, who has investigated the Driskell case as head of New Jersey-based Centurion Ministries, a non-profit group that fights for the wrongly convicted.
"This conduct is shameful," said McCloskey, who has helped to free more than 20 life or death-row prisoners in Canada and the United States. "He was hiding evidence he knew would jeopardize the conviction of Driskell if it ever saw the light of day. If the jury knew all this, Mr. Driskell would never have spent one day in prison."
Driskell has been in prison since 1991 for the first-degree murder in Winnipeg of his friend Perry Dean Harder. Convicted without a witness, confession or murder weapon, Driskell has steadfastly maintained his innocence.
A review by Ewatski of the Harder investigation was sparked by media reports in 1993 suggesting Driskell was wrongly convicted. Ewatski, who was an inspector at the time, and three other senior officers were asked to determine whether police acted improperly in their investigation.
Although Ewatski has maintained there is nothing that supported Driskell's claim of innocence in his 175-page report, it does detail the allegation by the RCMP that to secure testimony from a key Crown witness, Reath "Ray" Zanidean, Winnipeg police offered Zanidean immunity in an August 1990 arson in Saskatchewan.
Zanidean admitted to the arson while testifying against Driskell, but denied that he was offered immunity in exchange for his testimony.
The Ewatski review noted RCMP had identified Zanidean as the main suspect in the fire, which levelled a home owned by Zanidean's sister. RCMP investigators contacted Winnipeg police and told them of their interest in Zanidean, who was known to be living in Winnipeg at the time, the review said.
The review stated that no official immunity deal was offered by the Saskatchewan Justice Department, or sought by Manitoba Justice. It also noted the RCMP in Swift Current were keen to pin the arson on Zanidean.
There were suggestions Winnipeg police asked their Saskatchewan counterparts to hold off on their investigation until after the Driskell trial. However, when RCMP officers tried to jump-start their investigation, they were told by Winnipeg police a deal had been offered to free Zanidean from the Swift Current arson charges, the report stated.
Ewatski interviewed one of the RCMP investigating officers, who alleged that Winnipeg police "created a set of circumstances that would ensure the RCMP arson investigation would be scuttled." The report also quoted the RCMP officer relating a conversation with Winnipeg police where it was clear "part of the deal for Zanidean's testimony was that he not be charged for the 1990 arson."
Ewatski was also told by the RCMP that their arson investigation showed that Zanidean perjured himself at Driskell's trial when he admitted to the arson, but claimed it was for revenge and not as part of an insurance fraud.
Ewatski declined to comment yesterday, saying police would hold a news conference today to comment on different aspects of the report.
Driskell's legal team eventually obtained the Ewatski report after making an application to the federal Justice Department under Sec. 696 of the Criminal Code, which allows the minister of justice to intervene in cases where a miscarriage of justice has taken place. However, Driskell's lawyer, James Lockyer, was asked to sign an undertaking preventing him from making the report public.
After the Ewatski report was filed as evidence in a bail application, expected to be heard later this week, media outlets including the Winnipeg Free Press and CBC immediately applied to have the report released.
Associate Chief Justice Jeffrey Oliphant agreed that while the report might be "embarassing" for the Winnipeg Police Service, it was not a strong argument for keeping it from public view. Oliphant said that after reading the report, he believed it was not only relevant to Driskell's bail application, but also to his attempts to prove he may be the victim of a miscarriage of justice.
In addition to the Ewatski report, Driskell's legal team also obtained a series of letters which showed senior members of Manitoba's justice system were alerted by Saskatchewan about the unauthorized immunity deal, and the possibility that Zanidean had committed perjury at Driskell's trial. But the officials failed to disclose the information to Driskell's lawyers.
In January 1991, Saskatchewan Justice wrote to Bruce Miller, the associate chief judge of the provincial court who was then director of prosecutions for Manitoba Justice, with details of the dispute between the RCMP and Winnipeg police on the question of immunity for Zanidean.
Saskatchewan officials asked that Manitoba immediately provide these materials to Driskell's lawyer, who was preparing for an appeal scheduled for December 1992. This advice was based on the Stinchcombe decision in the Supreme Court of Canada's in the fall of 1991, which required the disclosure of all police and Crown files to counsel for the defence.
"Although not our prerogative, it would also be our recommendation that disclosure of this information be made to counsel for Mr. Driskell at your earliest opportunity," wrote Richard Quinney, executive director of prosecutions for Saskatchewan Justice. "The recent Stinchcombe decision from the Supreme Court of Canada clearly establishes our ongoing obligation to continue disclosure."
In July 1992, five months after being contacted by Saskatchewan, Miller forwarded the materials to George Dangerfield, a senior Crown attorney who prosecuted Driskell and was also preparing for the appeal. Despite being urged by Saskatchewan to disclose the materials to Driskell's lawyers, Miller left it up to Dangerfield to decide what to do. "I trust you will make whatever use of it is appropriate in the circumstances," Miller wrote to Dangerfield.
There is no record of further discussion of the matter until March 1993, more than three months after Driskell's appeal was turned down, when Miller once again asked Dangerfield what to do with the Saskatchewan materials. "Was that information disclosed to counsel for Mr. Driskell? If no, should we do so at this time?" Miller wrote.
Dangerfield returned the memo with a handwritten note indicating that he does not remember receiving the materials. "I hesitate to agree to send it to counsel without first looking at it," Dangerfield wrote.
Gaping holes appeared in a 12-year-old Manitoba murder conviction yesterday after the release of a long-suppressed police report suggesting a key underworld witness was told he would not be charged in an arson prosecution in return for his testimony against defendant James Driskell.
"We can see how a perception of deal-making exists in the minds of individuals who are calling for a review of the investigation," the report said.
The report also contains a slew of revelations about unsavoury Crown witnesses who used the Driskell investigation to save their own skins, and, in at least one case, benefit financially. It quotes one potential Crown witness as saying investigators punched and beat him until he caved in and supplied statements that damned Mr. Driskell. The report and some accompanying internal correspondence also reveal a major squabble between Saskatchewan and Manitoba police about confusion over the arson investigation, including accusations of deceit by one officer against another.
Mr. Driskell is imprisoned in Stony Mountain penitentiary. He has consistently asserted his innocence since the day he was arrested for the murder of his friend Perry Harder.
The report released yesterday was prepared in 1994 by Winnipeg Police Chief Jack Ewatski and senior staff after public pressure by the Winnipeg Sun and lawyer Greg Brodsky. At the time, all its authors would say in public was that they endorsed the validity of the conviction.
They warned in the report that releasing the findings "could and probably would be a serious source of embarrassment if this matter is reviewed in another type of public forum."
"It might be embarrassing, but that's not good enough to keep it from the public eye," Associate Chief Justice Jeffrey Oliphant of Manitoba Court of Queen's Bench said yesterday, ordering the release of the report. "The innocence and the liberty of Mr. Driskell are at stake here. Nothing can trump that."
"We are thrilled that finally, after 10 years, this report will for the first time see the light of day, and be in the public domain where it belongs," said Jim McCloskey, founder of Centurion Ministries, a U.S.-based group that has been investigating the Driskell case. "There's no question in my mind that not only did Mr. Driskell not get a fair trial, but also he's a completely innocent man. He had nothing to do with this crime."
Mr. Harder, 30, was last seen alive on June 16, 1990, after he left his rooming house in a pickup truck. Three months later, his remains were discovered in a shallow grave just outside Winnipeg. He had been shot at least once.
Mr. Harder and Mr. Driskell ran a "chop shop" together, cutting up stolen vehicles and reselling the parts. Just five days after his disappearance, Mr. Harder had been scheduled to appear at a preliminary hearing involving charges against Mr. Driskell for possessing stolen goods.
On Oct. 23, 1990, Mr. Driskell was charged in the murder. A jury convicted him on June 14,1991. He was sentenced to life imprisonment without parole for at least 25 years.
The case began to erode last year. DNA tests arranged by the Association in Defence of the Wrongly Convicted showed that three hairs used to link Mr. Driskell to the killing did not come from the victim, as had been alleged at his trial.
AIDWYC lawyers Alan Libman and James Lockyer say the contents of the internal police report are so explosive that it is only a matter of time before Mr. Driskell's first-degree murder conviction is scuttled and he takes his place in an expanding line of wrongfully convicted.
"The significance of the undisclosed information to the applicant's right to full answer and defence is incalculable," they wrote in a brief to the federal government seeking Mr. Driskell's exoneration. "The miscarriage of justice caused by their non-disclosure has been compounding day by day ever since."
Judge Oliphant also released a sheaf of correspondence yesterday in which Saskatchewan officials spoke of an arson they believed had been committed by Crown witness Reath Zanidean. They strongly suggest to their Manitoba counterparts that they disclose the tangle of evidence against Mr. Zanidean and the way in which he was using his potential testimony against Mr. Driskell to blackmail police into giving him immunity in the arson case.
Winnipeg Police have repeatedly denied in public that Mr. Zanidean was given immunity.
"Time and time again, Zanidean committed perjury. The RCMP knew it, the Winnipeg Police knew it, and they sat on it for 12 years," Mr. McCloskey said yesterday.
The AIDWYC lawyers will be seeking Mr. Driskell's release on bail on Thursday.
The federal Justice Department has launched a full investigation of the James Driskell murder conviction after finding reasonable grounds that a "miscarriage of justice likely occurred."
And just days before a court hears an application to free Driskell on bail while Ottawa investigates, Manitoba Justice has withdrawn its lawyer from the proceedings, with no explanation. A private lawyer has been appointed as an independent prosecutor to represent the Crown.
Earlier this year, Driskell asked the federal government to intervene in his case under Sec. 696 of the Criminal Code, which gives Justice Minister Martin Cauchon the power to overturn a conviction, order a new trial or refer a case for further review by an appellate court.
Driskell has been in prison since 1991 for the first-degree murder of his friend, Perry Dean Harder, of Winnipeg. Convicted without a witness, confession or murder weapon, Driskell has steadfastly maintained his innocence.
In a letter filed with supporting materials for the bail application, David McNairn, counsel with the Justice Department's Criminal Convictions Review Group in Ottawa, confirmed he found some merit in Driskell's claims of innocence.
"On the basis of my preliminary assessment of Mr. Driskell's application, I am satisfied that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred," McNairn wrote Nov. 4.
There are four different stages in the Sec. 696 application. After a preliminary assessment, if there is new and material evidence pointing to a miscarriage of justice, a full investigation is launched.
At the completion of that investigation, CCRG staff prepare advice for the minister. The final stage involves the minister's decision about whether to intervene.
Driskell appeared yesterday in a Winnipeg courtroom, where a judge confirmed Nov. 27 as the date for his bail application. Manitoba has yet to indicate whether it will oppose his release.
However, in a surprising twist, court was told yesterday that senior Crown attorney Dale Schille was withdrawing. Private lawyer Bill Olson announced he had been retained to take over the case.
Manitoba Justice contracts private lawyers to act as independent prosecutors in cases where the province has a conflict of interest, or when it is determined the actions of the Crown will be at issue. Schille had been assigned to the case as the senior-most prosecutor in the province with no previous contact with the Driskell file.
Olson represented Manitoba Justice at the Thomas Sophonow inquiry in 2001. Allegations of prosecutorial misconduct were a central theme of the inquiry.
Deputy Justice Minister Bruce MacFarlane declined to comment on the decision to withdraw government lawyers from the bail proceedings.
The bail application was brought forward earlier this month by Toronto lawyer James Lockyer, senior counsel with the Association in Defense of the Wrongly Convicted, and Winnipeg lawyer Alan Libman.
Earlier this year, Lockyer won bail for Romeo Phillion, who stands convicted of the 1967 murder of an Ottawa firefighter. The bail application was based on the revelation that police withheld evidence supporting Phillion's alibi.
Lockyer argued successfully before the Ontario Superior Court that based on the strength of that evidence, it was unconstitutional to keep Phillion behind bars while Ottawa reviews his claims of innocence.
In the last year, a significant body of new evidence pointing to Driskell's innocence has been uncovered.
In the original investigation, police found what they claimed were three hairs from the victim in a van owned by Driskell. At trial, prosecutor George Dangerfield argued the hairs were positive evidence that Driskell used the van in the murder.
DNA tests performed last year proved that not only were the hairs not from Harder, they were from three different people.
In addition, a Free Press investigation, the results of which were published in March, revealed additional new evidence in the case, including more than $80,000 in payments to two key Crown witnesses.
The witness protection agreements, which were being negotiated during the trial, were never revealed to the jury.
Lockyer and Libman have also submitted a 175-page review of the homicide investigation written by Winnipeg police Chief Jack Ewatski and a committee of senior police officers in 1993.
Ewatski has consistently refused to release the report to Driskell or the media on the basis that it is confidential and contains nothing that would help Driskell prove his innocence.
However, in an October 2000 interview with the Free Press, Ewatski and Insp. Bob Hall, co-author of the review, answered questions based on their work. Several important and previously unknown facts were revealed in that interview.
The most alarming revelation was that the police were aware a key Crown witness tried, shortly after Driskell's trial was completed, to recant his testimony to Driskell's lawyer, Greg Brodsky, during the trial. Despite knowing this, Ewatski never interviewed the witness as part of his review, and never revealed his discovery to Driskell's lawyers.
The Ewatski review has not yet been made public with other documents supporting the bail application because of promises made by Driskell's legal team not to disclose the document to a third party.
Associate Chief Justice Jeffrey Oliphant of Court of Queen's Bench will hear arguments Monday about whether to keep the report sealed. Several media outlets, including the Free Press, will argue for its release.
A confidential police report on the James Driskell murder investigation -- which Chief Jack Ewatski has fought strenuously to keep under wraps for a decade -- will finally find its way to a Winnipeg courtroom next week.
The detailed review of the police investigation of the 1990 murder of Perry Dean Harder, for which Driskell was convicted, has been pursued by Driskell and his lawyers for years as part of a bid to win him a new trial.
Now, that report will be filed along with an array of other new evidence in the case to support an extraordinary bail application pending a review of Driskell's claims of innocence by the federal justice department. Winnipeg lawyer Alan Libman, part of the legal team representing Driskell, yesterday told Justice John Scurfield of the Manitoba Court of Queen's Bench the police report would be filed early next week along with a legal argument to release Driskell on bail.
Driskell, dressed in a leather and melton jacket and wearing handcuffs, stood quietly in the prisoner's box as Libman made his submission. It was the first court appearance for Driskell since June 1991 when he was convicted of first-degree murder.
Libman said the report would be "sealed," meaning it will be viewed only by the court, and not available to the public. Libman declined to comment on why the report was sealed, or its contents. The report was commissioned in March 1993 by former Winnipeg Police Chief Dale Henry after media reports raised questions about Driskell's guilt.
Ewatski, then an inspector, was assigned with another senior officer, Insp. Bob Hall, to conduct the review.
The conclusion of the report was that the review "found nothing which would lead us to believe James Patrick Driskell was not involved in the death of Perry Dean Harder." Henry, and then Ewatski, refused to release the full text of the 175-page report.
However, in October 2000, Hall and Ewatski agreed to an interview with the Free Press to answer questions based on their review of the Driskell case. In that interview, several new and startling facts were revealed which encouraged Driskell's lawyers to demand access to the report.
These new facts include:
Scurfield adjourned the bail motion for two weeks to give provincial and federal prosecutors time to review the legal arguments and supporting evidence, including the Ewatski report.
Driskell was returned to Stony Mountain Penitentiary north of Winnipeg. This is only the second time a bail application of this kind has been brought before a Canadian court. In July, Toronto lawyer James Lockyer successfully won bail for Romeo Phillion, who stands convicted of the 1967 murder of an Ottawa firefighter.
New evidence supporting his evidence is before the federal justice department as part of an application for ministerial intervention under Sec. 696 of the Criminal Code.
Lockyer, who is also part of Driskell's legal team, successfully convinced an Ontario Superior Court judge it would violate Phillion's constitutional right to liberty by leaving him in jail while Ottawa reviews compelling new evidence of his innocence.
Winnipeg police spokesperson Const. Shelly Glover said police wouldn't comment on the bail application, or the evidence being introduced, because the matter is now before a judge.
Manitoba Crown Attorney Dale Schille said the province has not decided whether to oppose Driskell's bail application. That determination can not be made until there has been a full review of the legal arguments. Clyde Bond, a federal prosecutor representing the Attorney General of Canada, said he will require time as well to assess all the materials filed in support of the bail application.
"All the Attorney General of Canada is wanting at this point is to look at the materials," said Bond.
The homicide review could inject explosive new evidence into a case that has already been significantly weakened.
Driskell's lawyers have already succeeded in eliminating a key piece of physical evidence from the original case.
Police found what they claimed were three hairs from the victim in a van owned by Driskell which, it was argued at trial, was used in the murder. DNA tests performed last year proved that not only were the hairs not from Harder, they were from three different people.
Three hairs were the only physical evidence that convicted James Driskell of killing his friend Perry Harder.
And even though new tests have shown that the hairs did not come from the victim, Manitoba refuses to order a new trial.
The test results made public yesterday have prompted Justice Minister Gordon McIntosh to review all serious criminal cases in which hair samples played a pivotal role. But that is cold comfort for Mr. Driskell, 42, who has languished in Stoney Mountain penitentiary since his 1991 conviction for first-degree murder.
'Right from Day 1, it has been pretty much hell,' Mr. Driskell said in a telephone interview. 'I've seen a lot of things I don't want to remember, but that are going to stay with me for the rest of my life. Over the last 12 years, I can tell you there has been a lot of anger.
'I've been asked so many times: 'Did you kill Perry Harder?' The answer is always the same. I didn't. I wouldn't kill anybody. He was my friend.'
The three hairs were in a van that police say was used by Mr. Driskell to transport the 30-year-old victim to his death. They were the only physical evidence in the case. But in DNA tests arranged by the Association in Defence of the Wrongly Convicted , a British lab recently said the hairs did not come from Mr. Harder.
'The findings provide extremely strong support for the proposition that the hairs from the van originated from three individuals, none of whom was Perry Harder,' a lab report concluded.
The father of eight children, five of whom were born since he went to prison, Mr. Driskell said he is not the only victim. 'It's not only you doing a life sentence,' he said. 'The families do too.'
In the late 1980s, Mr. Harder and Mr. Driskell ran a 'chop shop,' cutting up stolen vehicles and reselling the parts.
On June 15, 1990, Mr. Harder vanished, just five days before he and Mr. Driskell were to appear at a preliminary inquiry on joint charges of possessing stolen goods. Three months later, a passerby found his remains.
The Crown convinced the jury that Mr. Driskell had killed Mr. Harder to ensure that he couldn't implicate him in the court case. The Crown produced evidence that:
Within a year of the trial, defence lawyers, a private detective and The Winnipeg Sun began raising troubling issues. These included potential witnesses who claimed police harassed them, and a phone call to defence lawyer Greg Brodsky six days after the conviction.
A mystery caller said Mr. Zanidean had fabricated his testimony on instructions from the police. Police acknowledge that the call was made from Mr. Zanidean's phone. They believe he called to stir up trouble and force authorities to enhance his witness-protection program.
The Winnipeg Sun reported that:
While authorities acknowledge frailties in the case, including the unsavoury nature of several Crown witnesses, they maintain this is typical of underworld characters. They also note that Mr. Driskell is the only strong suspect.
About two years ago, the Association in Defence of the Wrongly Convicted took up the case. AIDWYC lawyers Alan Libman and James Lockyer persuaded the Manitoba Justice Department to pay almost $30,000 to have the hairs analyzed again.
While the Justice Minister has acknowledged that the new test results are 'unsettling,' he told Mr. Driskell's lawyers that they do not tip the scales toward granting a new trial, although the province will review all cases involving hair as evidence.
'I think we will probably be looking at the most serious charges,' deputy justice minister Bruce MacFarlane said in an interview.
Mr. Lockyer wonders why Manitoba will not reopen Mr. Driskell's case.
'This was the only forensic evidence that incriminated Driskell,' he said. 'Why would Manitoba have authorized the DNA testing if they were then going to turn their backs on the results?'
Manitoba's response is that it felt it was morally right to foot the bill.
'We felt that we should take the high road and if there were any stone he felt ought to be turned, we should turn it,' Mr. MacFarlane said.
He said that Manitoba prosecutors recently reviewed the case and decided the verdict would have been the same regardless of the hair evidence.
The best course now, he added, is for federal justice officials to re-examine the conviction using a Criminal Code review process that can lead to an acquittal or a new trial.
The release of the new test results is the second attempt to expose the Driskell case as a wrongful conviction. The 1992 Winnipeg Sun articles prompted the Winnipeg Police Service to conduct an internal review of the case. The force concluded that it had done a fine job, but refused to release its 175- page report.
Mr. MacFarlane added that if Mr. Driskell has not applied for a Criminal Code review by July 1, the province may do so.
AIDWYC objects to federal reviews on the ground that the Justice Department has a vested interest in upholding convictions.
Mr. Driskell said he has his own theories about who killed Mr. Harder, but it would be premature to discuss them. 'I'm just hoping that this time, some people are going to take this seriously,' he said.