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James Driskell

Denying errors hurts confidence in justice system

James Driskell

When mistakes are made that are so grave they deprive a man of his freedom, the least the perpetrators can do is admit their error and learn from it.

Yet Manitoba justice officials continue to ignore their complicity in the disturbing case of James Driskell, not only fighting his request for a new trial but opposing his bail application as well.

"They are not going to show any accountability," said Driskell, who was freed on bail last week by a Court of Queen's Bench justice after spending 13 years in prison for the 1990 murder of his friend, Perry Dean Harder.

Driskell has not been cleared of the crime, but neither has he been proven guilty beyond a reasonable doubt, despite his 1991 conviction. Testimony and evidence used in that prosecution have been so discredited, the onus must now be on the Crown to mount a new case against him, if it can.

During last week's hearing, Justice John Scurfield said new revelations in the case would have been enough to affect deliberations of the jury that found him guilty of first-degree murder.

These include undisclosed payments of at least $70,000 to witnesses who testified against Driskell, and a key witness who believed he would receive immunity from prosecution on another criminal charge in exchange for his testimony, and who later recanted.

New DNA evidence showed hairs found in Driskell's van did not come from the victim, contradicting testimony from a police expert at his trial.

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

The apparent bungling of the Driskell case further erodes public confidence in the justice system, adding yet another name to a growing list of those terribly wronged -- David Milgaard, Guy-Paul Morin, Thomas Sophonow, and closer to home, Jason Dix, who spent almost two years in jail before the murder case against him collapsed. [He was framed by the Mounties]

Once again, it appears investigators found a suspect first, then worked on developing "evidence" to fit their version of the crime.

But what is equally disturbing is the refusal of justice officials to admit their case was deeply flawed and acknowledge that Driskell did not receive a fair trial. Instead, they continue to oppose Driskell's application for a new trial, which must be made directly to the justice minister and which could take years to come about.

The case bears at least two of the hallmarks of a wrongful conviction case, as identified by James Lockyer, Driskell's lawyer and a founding director of the Association in Defence of the Wrongly Convicted -- paid or jailhouse informants and bad science.

The case against James Driskell relied in part on the testimony of unreliable informants, as did the cases against Sophonow, Morin, and Dix.

As a result of the Dix case, which relied on three paid informants, Alberta Justice has since toughened its guidelines on the use of jailhouse informants, but still allows their use.

In Manitoba, a government public inquiry into the Sophonow case recommended a virtual ban on the use of jailhouse informants.

In fairness to police and prosecutors, it is not just the use of unreliable witnesses that has contributed to wrongful convictions. In recent years, reliability of physical evidence from crime scenes has been greatly improved by DNA science, which wasn't available when men like Milgaard and Driskell were tried and convicted. In response to the DNA results in the Driskell case, the Manitoba government, despite its refusal to admit its failings in his prosecution, has ordered a review of all serious criminal cases in which hair evidence may have played a role in the conviction.

These changes won't give James Driskell back the past 13 years of his life. But they may help prevent future miscarriages of justice and restore public confidence in the criminal justice system.