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James Driskell (5)

James Driskell

'A continuing cover-up'
Officials knew key evidence in Driskell case withheld

Manitoba Justice learned more than three years ago that senior prosecutors withheld evidence that could have won a new trial for James Driskell but did not reveal their discovery despite repeated requests by his lawyers. This latest revelation has sparked concern among Driskell's legal team that some of the prosecutors in Manitoba Justice have been trying to cover up mistakes made by their predecessors.

Jim McCloskey, head of New Jersey-based Centurion Ministries, which has freed more than 30 life and death-row prisoners, said there is evidence now that the department is not being forthcoming about everything that has transpired in Driskell's case.

"My question is, who prosecutes the prosecutors?" said McCloskey, who has worked for more than a year on Driskell's case. "In my view, there has been a continuing cover-up of this material. It was continually withheld from the defence by everyone in the prosecutor's office -- right up until the game was up this fall, and their backs were against the wall and they had to give it up on the eve of the bail application."

Driskell, convicted of murder in 1991, was released on bail last month after a barrage of new evidence withheld during his original trial and appeal was finally uncovered. Driskell remains on bail pending the results of a federal review of his conviction.

Ray Zanidean

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

The new evidence included letters sent in January 1992 to senior Manitoba prosecutors from Saskatchewan Justice alleging Winnipeg police gave a key witness in the trial, Ray Zanidean, a secret immunity deal for an arson charge in Swift Current in exchange for his testimony. Saskatchewan, which did not consent to the immunity deal, asked that the information be disclosed to Driskell's lawyer in time for his appeal in December 1992.

The letters, and a series of internal memoranda showing the senior-most prosecutors in the department were aware of the Saskatchewan materials, were not disclosed until last month just prior to the bail application. Justice officials claimed they had not known until then that the evidence had never been disclosed.

However, a continuing investigation by the Free Press has found Manitoba Justice first uncovered the letters in October 2000 as part of a review of the Driskell case.

Deputy Justice Minister Bruce MacFarlane said a Crown attorney reviewing the case, Dale Schille, mistakenly assumed they had already been disclosed to Driskell's lawyers. When it became clear the materials had not been disclosed, they were immediately provided to Driskell's legal team, he said.

"Speaking for myself, in terms of the Saskatchewan correspondence, I see... how an assumption was made," MacFarlane said. "The assumption turned out to be wrong."

In July 2000, MacFarlane said, he asked the department to review the Driskell files to determine if there was any concerns he received a fair trial. Schille was assigned to examine the files.

In an interview, Schille confirmed he found the Saskatchewan correspondence and subsequent memoranda showing that Bruce Miller, the former director of prosecutions, George Dangerfield, who prosecuted Driskell, and assistant deputy minister Stu Whitley were all aware of the existence of the Saskatchewan materials.

Schille said he instantly understood the potential importance of the letters, but assumed -- based on the reference to a "draft letter" being prepared -- that the materials had been disclosed to Driskell's lawyers after his appeal in December 1992. Schille said he assumed that settled the issue of disclosure.

"The defence should have had that prior to the hearing of the appeal, but it looked like at this point it was crying over spilled milk," Schille said. "It had been done, albeit belatedly."

Schille could not explain, however, why he never checked with Driskell's former lawyer, Greg Brodsky, to confirm whether he received the Saskatchewan materials, and how he overlooked several obvious signs that Driskell had no knowledge of the secret immunity deal, including:

  • Numerous letters from Winnipeg private investigator Janie Duncan, who continued for years after Driskell's 1992 appeal to demand any details of an immunity deal for Zanidean. Schille confirmed these letters, which continued well into the late 1990s, were in the same file as the Saskatchewan materials;
  • Direct demands by lawyers for the Association in Defence of the Wrongly Convicted (AIDWYC) in 2001 and continuing right up until weeks before the bail application for all information related to consideration, monetary and otherwise, offered to Zanidean and another witness, John Gumieny.
  • No mention of the Saskatchewan materials in Driskell's application to the federal government under Sec. 696 of the Criminal Code, which gives the justice minister the power to order a new trial or refer a case to an appellate court.

Schille confirmed he also excluded the letters and memoranda from case files when they were shown to AIDWYC lawyer Alan Libman in early 2003 to fulfil an agreement to disclose all prosecution materials. Libman said he was shocked to hear that Schille had uncovered the letters years before those meetings.

"He never showed me the documents," Libman said. "I'm at a loss to explain the position that he thought we had them. If that's the case, then why didn't he show them to me? That was the whole point of the meeting, to see what we already had and what we still needed."

MacFarlane said he did not think Schille had an obligation to raise the issues contained in the letter -- in particular that senior prosecutors failed to disclose relevant evidence prior to Driskell's appeal -- because ultimately disclosure was made.

George Dangerfield

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

A more detailed investigation of what Miller, George Dangerfield (right) and Whitley did, or did not do, back in 1992 will be left to former provincial judge John Enns, who has been asked to look at disclosure issues in the Driskell case. Enns will first examine whether police provided all their evidence to prosecutors, and then whether prosecutors disclosed everything to defence counsel.

McCloskey said he believes Schille had an obligation as a lawyer to immediately report the failure of Miller, Dangerfield and Whitley to his superiors.

Alan Fineblit, executive director of the Law Society of Manitoba, said a lawyer does not have an obligation to report a colleague for professional misconduct. However, if that misconduct is so grave it qualifies as possibly criminal, then all lawyers are compelled to go to the authorities, he added.

"If we become aware of conduct that is maybe criminal, we have an obligation to report it to law enforcement authorities," said Fineblit. Although no prosecutor has been charged criminally for failing to disclose relevant evidence, there is always a possibility that such behaviour could be considered criminal if it was blatant and contributed to a long incarceration, he added.


Manitoba judge releases Driskell on bail

Pale and frightened, James Driskell stepped into the cold sunlight of a Winnipeg winter yesterday and savoured his first moment of freedom in more than 13 years.

Earlier that morning, a judge granted Mr. Driskell bail pending a review of his murder conviction, saying that new evidence raised "very serious concerns about the accuracy of the conviction."

That allowed Mr. Driskell to walk out of a downtown courthouse without handcuffs and leg irons - a new experience he said was bewildering. "It's very scary right now," he said. "I focused strictly on doing time, a long time. I didn't put hope into anything. It's kind of a shock."

The judge who released Mr. Driskell also expressed shock at some of the evidence presented in court.

In his oral decision, Mr. Justice John Scurfield of Manitoba's Court of Queen's Bench said that either the new DNA evidence in the case or the facts that emerged about two key witnesses would have been enough to affect jury deliberations in Mr. Driskell's 1991 trial.

That trial found him guilty of killing his friend, Perry Dean Harder, partly on the basis of three hairs found in Mr. Driskell's van that a police expert testified had come from the victim. It was the only piece of physical evidence linking Mr. Driskell with the crime. Years later, a DNA test showed that the hairs didn't belong to Mr. Harder and, in fact, came from three different people.

"It proves that a material piece of evidence upon which the jury may have relied was wrong," Judge Scurfield said.

Other reasons for thinking the jury may have decided differently, the judge said, were undisclosed payments of at least $70,000 to witnesses, and the secret belief of key witness Ray Zanidean that he was exchanging his testimony for immunity against arson charges he was facing in Saskatchewan.

"It is reasonable to conclude that the evidence of payment to the witnesses together with Mr. Zanidean's belief that he was obtaining immunity in respect of a serious charge could have constituted the straw that broke the jury's confidence in these witnesses," the judge said.

Citing the fact that Mr. Zanidean later recanted his testimony, and the Crown's failure to disclose many of these items despite the urgings of Saskatchewan's Justice Department, Judge Scurfield concluded that the case against Mr. Driskell was flawed.

"The new evidence does not simply identify procedural irregularities as suggested by the Crown. It goes to the heart of their case."

At a press conference, Mr. Driskell said he's grateful to the court and to the lawyers who worked countless unpaid hours to gain his freedom. The 45-year-old said he plans to spend some quiet time with his eight children and 12 grandchildren, before eventually brushing up on his skills in carpentry, automotive or electrical work and considering the many job offers he's received.

Under his bail conditions, he cannot leave Manitoba and must obey a curfew at his temporary new home with friends in a town south of Winnipeg.

He appeared to be struggling with conflicting emotions. "I haven't got a clue how I'm going to deal with this yet," he said.

There is a bitter undercurrent to his celebratory mood, he said, as he considers the years he lost. "The anger has built up. I've learned to deal with it several different ways. Eventually I imagine it will go away, but not for a long time because there's still lots that has to be done."

Outside lawyers hired by the province's prosecutions division told the court this week that the new evidence didn't exonerate Mr. Driskell. They are fighting his request for a new trial, currently being considered by the federal Justice Department. Mr. Driskell's lawyers say this leaves them with many hurdles yet to overcome.

"I just don't know what we have to do to convince them," said James Lockyer, a founding director of the Association in Defence of the Wrongly Convicted, who acted on Mr. Driskell's behalf.

"It's incredible to me that we are still at a stage where yesterday they [Manitoba's prosecutors] were opposing bail and today they continue to oppose our application to the Justice Minister in Ottawa," he said. "I appeal directly to Manitoba Justice to finally take off the blinders."

Lawyers Hymie Weinstein and William Olson, who acted for the Crown, said very little about the decision.

"The fact is, he's still convicted," Mr. Weinstein said. "Whether he's innocent or not, is not up for us to decide or the Justice Department to decide. It's up to the review by the minister and there could potentially be a new trial."

None of the legalities appeared to matter much to Mr. Driskell's family, however. They hugged and passed around Kleenex to dry their eyes as the judge read his decision in court.

"We're all happy that he's out and we can spend some more time with him," said his mother Florence, 72. "Sunday dinner and all, he was never there for 14 years."

She added: "He's still my baby."


Driskell waiting to see if he'll get bail

A man who has spent more than a decade behind bars following a conviction for a murder he says he didn't commit is waiting to see if he will be granted bail because of new evidence that may exonerate him.

James Driskell was in a Winnipeg courtroom Thursday, where for a judge was to decide whether he can go free while officials look at new documents.

Mr. Driskell was convicted in 1991 for the fatal shooting of his friend Perry Harder

The federal Justice Department is already reviewing the case, in part because DNA tests conducted last year on crucial hair evidence raised doubts about Mr. Driskell's guilt.

As well, Mr. Driskell's original lawyer says he was never given important information about the case, including the fact that police had doubts about a key Crown witness.

In a Winnipeg courtroom Thursday, Mr. Driskell's lawyer said he deserves to be granted bail because the new evidence is so overwhelming it would be wrong to keep him behind bars.

"We're dealing with a recantation. We're dealing with new scientific evidence," James Lockyer told a packed Queen's Bench courtroom while Mr. Driskell sat quietly nearby in the prisoner's dock, dressed in a blue suit.

"The applicant has come forward with an abundance of evidence...that was certainly not considered by the courts," Mr. Lockyer told Justice John Scurfield.

"If Mr. Driskell's trial were held today, it would simply implode. To keep Mr. Driskell in custody would be a perpetuation of a miscarriage of justice."

Mr. Harder was shot to death and his body was found in a shallow grave in Winnipeg's north end.

There were no witnesses to the crime and Mr. Driskell has always maintained he is innocent.

Crown prosecutors indicated they would argue that keeping Mr. Driskell behind bars during the review is in the public interest.

Mr. Driskell was convicted largely on testimony from Crown witness Ray Zanidean and three hairs found in Mr. Driskell's van that the Crown said came from the victim.

But DNA tests conducted last year revealed the hairs did not belong to Mr. Harder.

In addition to presenting the new DNA evidence, Mr. Lockyer spent much of the morning on an internal 1993 Winnipeg police report on the case that was made public earlier this week. The report showed police were suspicious of Mr. Zanidean's testimony, that Mr. Zanidean "very likely" lied when he testified against Mr. Driskell and that he tried to recant his testimony after Mr. Driskell was convicted.

The report - authored by senior Winnipeg police officers, including Jack Ewatski, who is now chief - also states RCMP believed Winnipeg police secured Mr. Zanidean's testimony by giving him immunity on an arson charge in Saskatchewan.

The report had been kept under wraps until a Winnipeg judge ordered it released on Monday, saying it could be a key in efforts to prove a wrongful conviction.

"The review in itself provides a reasonable basis to conclude that a miscarriage of justice likely occurred," Mr. Lockyer said.

On Wednesday, the Manitoba government ordered an independent review of the way the Crown handled Driskell case, to determine whether police or prosecutors withheld key evidence.

Joyce Millguard, whose son David spend 23 years wrongfully imprisoned for the murder of a Saskatoon nursing aide was on hand in Winnipeg for the bail hearing.

She told reporters that an independent board is needed in Canada to review such cases.

"I'm one that's lost faith in the justice system," she said.

Boxer Rubin (Hurricane) Carter, who was also wrongfully convicted of murder and sent to prison, said these cases have become more common.

"These cases of wrongful convictions, while we thought were very few, have grown to epidemic proportions," he said. He said the board must be independent of the government.


Crown plays down new Driskell evidence
Disputed facts wouldn't have changed murder conviction, bail hearing told

WINNIPEG - New facts that have emerged since James Driskell's murder conviction 12 years ago were challenged for the first time in a courtroom yesterday, as his lawyers and the Crown argued about whether he should get bail while his case is re-examined.

They offered two starkly different viewpoints about the reams of new material that Mr. Driskell's legal team has unearthed.

The Crown said the new facts amount to nothing more than suggestions of procedural irregularities and refutations of minor pieces of evidence, which would not have changed the outcome of the jury trial that found Mr. Driskell guilty of murdering Perry Harder in 1991. Mr. Driskell's lawyers said that any one of the new pieces of evidence is enough to show that his conviction was likely a miscarriage of justice.

"When you look at them cumulatively, you have an overwhelming basis for concluding that a miscarriage of justice occurred," said lawyer James Lockyer.

"To keep Mr. Driskell in jail would perpetuate a miscarriage of justice that has gone on too long already."

Federal lawyers are reviewing his conviction in the shooting death of Mr. Harder, who had been a friend. The provincial government announced a second review of the case this week.

The evidence against Mr. Driskell, 45, was always circumstantial, relying on the testimony of underworld informants and three hairs recovered from Mr. Driskell's van that an expert analyst for the Crown testified belonged to the victim.

A secret police report, revealed this week, shows that police had deep misgivings about the informants and that they were rewarded for their testimony.

An earlier DNA analysis of the hairs showed that they belonged to three different people, none of them the victim.

Spectators crowded into a Queen's Bench courtroom yesterday to see whether the new evidence would be enough to get Mr. Driskell out of jail.

Lawyers acting for the Crown said that it would not serve the public interest to release a convict whose case is still being reviewed, arguing that Mr. Driskell's lawyers still have not proved that a miscarriage of justice was "reasonably likely."

Speaking in court about the new material in the case, Crown attorney William Olson, said: "The difficulty for you, my lord, is how material is the material? . . . Are they sufficiently grave as to raise serious concerns about the accuracy of the verdict?"

While Mr. Olson argued that the verdict wouldn't have been affected, Mr. Lockyer listed several ways that it would have been.

"If Mr. Driskell's trial were held today, it would essentially implode," Mr. Lockyer said.

Mr. Justice John Scurfield questioned both lawyers rigorously. He particularly scrutinized the Crown's assertion that the new facts don't exonerate Mr. Driskell, saying that the new evidence merely needs to have been enough to have affected the outcome of the trial. After hearing both arguments, Judge Scurfield said he would attempt to deliver a decision this morning.


Inquiry ordered into Driskell case

Manitoba Attorney General Gord Mackintosh struck an independent inquiry into the James Driskell murder case yesterday amid mounting allegations police and prosecutors failed to disclose evidence that would have cast doubt on the conviction.

Mackintosh also made a surprise disclosure, releasing a 1993 memo that shows George Dangerfield, the Crown attorney who prosecuted Driskell, failed to tell senior officials in the Manitoba Justice department about evidence that undermined the credibility of a key Crown witness.

The release of the Dangerfield memo is just the latest in a string of revelations in the last week alleging some of the most senior officials in the prosecutions branch of Manitoba Justice and the Winnipeg Police Service, including Chief Jack Ewatski, failed to disclose evidence that Driskell's lawyers now believe would have won him a new trial.

The federal Justice Department has launched an investigation of the Driskell case under Sec. 696 of the Criminal Code, which allows Ottawa to overturn a conviction or order a new trial. Mackintosh said the allegations of withholding evidence required an immediate response.

"I have a growing list of questions about what took place here," said Mackintosh. "There are some very unsettling matters regarding the trial, and some events that happened after.

"So this is a timely effort to make sure we discover what took place in Manitoba in the prosecution's branch."

Mackintosh has asked retired provincial court judge John Enns to preside over the inquiry. Enns is expected to begin his work within days and could produce a final report "within a matter of weeks," Mackintosh said.

Enns' appointment is likely to raise eyebrows. A former Crown prosecutor, Enns was criticized by the Aboriginal Justice Inquiry for his work in presiding over the J.J. Harper coroner's inquest that allowed police to introduce inadmissible evidence in support of their case.

Evidence

The inquiry will look at whether police and prosecutors correctly disclosed evidence.

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.

This morning, lawyers from the Association in Defense of the Wrongly Convicted will try to persuade Court of Queen's Bench Justice John Scurfield to release Driskell on bail while the federal government investigates his claims of innocence.

Despite Mackintosh's announcement, an independent prosecutor representing the attorney general confirmed yesterday he will fight the bail application.

Through a spokesman, Ewatski declined to comment yesterday on Mackintosh's announcement of a review.

In the last week, Driskell's case for bail has been strengthened by the disclosure of several new pieces of evidence that cast doubt on his conviction.

These include a 175-page review of the homicide investigation written by Ewatski, which he fought for more than 10 years to keep out of public view. Court of Queen's Bench Associate Chief Justice Jeffrey Oliphant ordered the report released on Monday, noting it was "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."

Ewatski told reporters Tuesday he had provided Manitoba Justice with "all available evidence" in the case. Those comments drew an immediate response from deputy attorney general Bruce MacFarlane, who issued a statement late in the day that there are a number of new facts dug up by Ewatski's report that have never been provided to prosecutors.

Only days earlier, Driskell's lawyers had been provided with correspondence showing Saskatchewan Justice told Manitoba prosecutors about new evidence that undermined the credibility of a key Crown witness, Ray Zanidean.

The Saskatchewan materials allege Winnipeg police struck a secret deal with Zanidean, offering him immunity for an arson charge in Swift Current in exchange for his testimony, without authority from Saskatchewan. Additional concerns were raised that the arson investigation showed Zanidean committed perjury when he testified against Driskell.

Witness credibility

This new evidence, which undermined the credibility of the witness, was given to senior Manitoba Justice officials in January 1992, five months after Driskell's conviction and 10 months before his appeal. Those in possession of the evidence included Dangerfield, then-director of prosecutions Bruce Miller -- who is now a provincial court judge -- and Stu Whitley, a federal attorney who was Manitoba's assistant deputy minister of justice.

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.

The Dangerfield memo released yesterday adds another dimension to growing concerns that evidence casting doubt on Driskell's conviction was withheld from public view.

On March 15, 1993, then-justice minister Jim McCrae ordered a review into the Driskell case to answer questions raised by a series of media reports. The next day, Dangerfield prepared a four-page "short commentary" of the trial, dismissing the concerns raised in the media reports.

In the memo, addressed to deputy justice minister Ron Perozzo, Dangerfield says no evidence was kept from Driskell or his lawyers, and that "every care was taken to see that Driskell was given the fairest trial possible."

Dangerfield does not, however, reference evidence from Saskatchewan about the unauthorized immunity deal, or the belief that Zanidean committed perjury which, according to a departmental memorandum, he was made aware of eight months earlier.

Despite repeated efforts to contact Dangerfield to explain his actions, he has not responded to interview requests.


Wrongful conviction inquiry ordered

Manitoba murder case: Police chief blames prosecutors for withheld evidence

WINNIPEG - Manitoba's Attorney General has ordered an inquiry after the Winnipeg police chief accused Crown prosecutors of withholding vital evidence from lawyers defending a man alleged to have been wrongly convicted of murder.

"We need to have an independent set of eyes review this matter to permit the department to move forward in a sure-footed manner," Gord Mackintosh said yesterday.

On Tuesday, Chief Jack Ewatski said the contents of a 1993 police report into the case of accused murderer James Driskell were known to Crown prosecutors. The report revealed an immunity deal was made with one of the key witnesses.

However, the report was kept secret from the public and Driskell's defence team for 10 years until being revealed this week.

Bruce MacFarlane, Manitoba's deputy attorney general, later disputed the chief's claim. He said it was "inconsistent with the information in the Crown's file."

Yesterday, Mr. Mackintosh announced that John Enns, a retired provincial court judge, would conduct an independent review of the matter.

"Recent developments have raised concerns over the handling of disclosure documents relating to the Driskell matter," Mr. Mackintosh said in a statement. "These developments can impact public confidence in the justice system and need to be examined by an independent reviewer."

The review will examine the issue of disclosure as well as compare the police review with the prosecution's files.

This week, Mr. Justice Jeffrey Oliphant ordered the release of the report saying it was key to helping Driskell's bid for bail today and, "in assisting in demonstrating his conviction for first-degree murder may have been a miscarriage of justice."

Lawyers claim Driskell's trial 12 years ago was unfair and evidence was suppressed.

The case has reignited a debate that Canada needs an independent review of cases of possible wrongful conviction.

The fate of innocent people behind bars too often rested in the hands of under-resourced and under-staffed defence lawyers battling against a rigid justice system, lawyers said yesterday.

"I think there is clearly a better way," said Louis Sokolov, a Toronto lawyer and a board member of the Association in Defence of the Wrongly Convicted (AIDWYC.)

"Independence is the key. Without independence members of the public cannot have confidence in the justice system."

Mr. Sokolov, a lawyer for AIDWYC in the case of Thomas Sophonow who was wrongfully convicted of strangling Barbara Stoppel, 16, said, "What we tend to see is tunnel vision by police and prosecution authorities.

"By its very nature, tunnel vision excludes factors that do not comply with the police and prosecution theories.

"You also have reputations of individuals wrapped up in defending the status quo. Nobody wants to admit that they were party to a wrongful conviction."

Dianne Martin, director of the Innocence Project at York University's Osgoode Law School in Toronto, said police refusal to admit they were wrong was called "belief perseverance" by psychologists.

"Once they have reached a conclusion they stick to it and ignore or rationalize evidence pushed their way," she said.

Some officers were guilty of "noble cause corruption," said Sean Dewart, a lawyer who represented Gary Staples, the Ontario man freed after being wrongly convicted of murdering a taxi driver.

"Police become frustrated when they are trying to solve a difficult crime and in that frustration they land on the wrong person and become convinced that it is the right person and suppress the inconsistent evidence in order to put that person in jail.

"There's a system in place and they usurp the role of the jury and the courts and the Crown by trying to get the result they want. And that's corruption but not borne of a desire to put innocent people away. They have persuaded themselves that they have the right person."

Mr. Sokolov said what was needed was something similar to the U.K. where there was an independent Criminal Cases Review Commission that investigated miscarriages of justice.

"You do not have the same people investigating. You have independent people whose reputations are not wrapped up in the matter," he said.

Following commissions of inquiry into the cases of Mr. Sophonow, Donald Marshall and Guy-Paul Morin, Ottawa responded with a new conviction review unit which has been criticized as having few powers and little in the way of resources.

In the case of Driskell, it was defence lawyers who again uncovered evidence that cast doubt on his conviction.

Police claim Driskell killed a friend, Perry Dean Harder, in order to stop him testifying against him on a charge of receiving stolen goods. Driskell has always maintained his innocence.

But since the conviction it has emerged that police paid two key witnesses $80,000 in "compensation" to give evidence and that one of the witnesses, Ray Zanidean, was granted immunity from an arson charge.

The 1993 report claimed Mr. Zanidean "likely lied" in his evidence. He later tried to recant his testimony.

A central plank of the prosecution case -- and the only forensic evidence -- has also been discredited.

At the trial it was claimed that three hairs found in Driskell's van belonged to the victim and supported the prosecution case that the vehicle was used to dispose of the body.

New DNA tests have shown that the hairs did not belong to the victim but to three other people.


Ex-judge wrong for review

Attorney General Gord Mackintosh said yesterday the matters surrounding the Crown's handling of the James Driskell murder case "cry out" for an "independent review."

So what, for crying out loud, was he doing appointing retired Manitoba provincial judge John Enns?

Either Mackintosh is stupid, or he thinks we are, or both.

Actually, I happen to think Mackintosh is a rather clever guy.

Smart enough to quickly act on a legal sewage spill that is looking more and more like yet another wrongful conviction.

Specifically, Mackintosh wants an assessment of how his department handled the disclosure 10 years ago of important information that should have been passed on to the lawyer for convicted murderer James Driskell.

But wasn't.

The documented information concerned alleged perjury by a key Crown witness that the Saskatchewan government was urging Manitoba Justice to disclose to defence counsel.

That information might well have resulted in a new trial because, right around that time in 1992, Driskell's lawyer, Greg Brodsky, was preparing to appeal the 1991 murder conviction.

The uncharacteristically stupid part of what Mackintosh did yesterday, though, was in appointing Enns to do the independent review.

Enns is the judge best known for his pro-police witness mishandling of the J.J. Harper inquest, or so the Aboriginal Justice Inquiry suggested.

That piece of history aside, Enns may be a decent, well-meaning man, but he can hardly be called "independent."

At least not with a straight face.

Enns is a former prosecutor himself. He was around in the bad-old, good-old days when some Crowns and cops got a little too cosy for legal comfort working together out of the Public Safety Building.

That was an era when most people in the Crown-cop culture looked up to a pair of notorious detectives who preferred fists to facts.

The problem is Enns is being tasked with reviewing people and a culture he knows only too well, which in this case, isn't necessarily a plus.

People like "Gorgeous" George Dangerfield, the tall, white-goateed former senior Crown attorney, who in March 1993 -- six months before the Winnipeg Police Service review led by then-inspector, now police Chief Jack Ewatski -- did the first so-called Crown review of the Driskell case.

That meant Dangerfield reported on what Dangerfield did as the prosecutor.

Enns might well do a fine job.

But, as Mackintosh said yesterday in reference to the concerns raised by the decade-old document disclosure issue, "these developments can impact public confidence in the justice system... "

Which is why Manitoba Justice should have asked a retired judge from another province to conduct the review into the past doings of Manitoba Justice officials.


Trio in the spotlight again
Prosecutors singled out for withholding evidence in Sophonow trial

A provincial review into allegations the Crown attorneys' office mishandled the James Driskell murder case will focus on a trio of prosecutors singled out for withholding evidence in the wrongful conviction of Thomas Sophonow.

George Dangerfield, Gregg Lawlor and Stu Whitley were Crown attorneys who were involved in the prosecution of Driskell in 1991 for the first-degree murder of Perry Dean Harder.

Documents filed in support of Driskell bail application show that all three were aware of new evidence significantly undermining the credibility of a star witness, but never disclosed that evidence to Driskell's lawyer.

Bruce Miller, a provincial court judge who was director of prosecutions for Manitoba Justice in 1992, also received a copy of the evidence, but did not provide the information to Driskell's defence.

Justice Minister Gord Mackintosh ordered a provincial review yesterday into how the Crown attorneys' office handled Driskell's murder case.

The review of the Crowns' role in Driskell's conviction marks the second time Dangerfield, Lawlor and Whitley have been investigated for withholding evidence in a murder trial.

In a 2001 inquiry into Sophonow's wrongful murder conviction, former Supreme Court Justice Peter Cory found numerous instances where Crown attorneys failed to provide evidence about the questionable credibility of prosecution witnesses to Sophonow's defence lawyer.

"Crown counsel agreed (the information) should have been disclosed to the defence. It was not. This was a serious error on the part of the Crown," Cory wrote in his report. "The error contributed significantly to the wrongful conviction of (Sophonow)."

The day the Sophonow report was released in September 2001, Mackintosh requested Cory review the Crown's role in the conviction with an eye to laying criminal charges or professional sanctions against the three men.

Cory determined no further action should be taken against the prosecutors.

University of Manitoba law professor Lee Stuesser said during Sophonow's trials in the '80s, complete disclosure of evidence was expected, but not required by the Crown under the law.

A Supreme Court of Canada decision in 1991 -- called Stinchcombe -- made Crown disclosure of evidence a requirement. Stinchcombe was in effect when Driskell appealed his conviction in 1992.

"Before Stinchcombe, people assumed the Crowns were doing their jobs, but there was no clear guidelines," said Stuesser. "Not all Crowns had the same opinion about what was relevant evidence."

As a result of the Stinchcombe decision, Stuesser said, prosecutors who do not disclose all the evidence they have to the defence can be subject to professional sanctions or even criminal charges of obstructing justice.

Mackintosh said he's particularly disturbed by the fact that suggestions the Crown did not share important information with Driskell's counsel took place after Stinchcombe was in place.

University of Winnipeg criminology professor Doug Skoog said the mentality of the prosecutions branch at the time of Driskell's conviction may have influenced Crown attorneys and justice officials.

"It was a win-at-all-costs mentality," he said. "One's chances for promotion depend not so much on being fair and just as being successful in convicting cases."

Skoog said the fact Miller did not ensure the evidence was provided to Driskell's lawyer is an indication of "weak leadership" on the part of senior justice officials at the time.