The Federal government released the Report on the Prevention of Miscarriages of Justice. This should be required reading for every prosecutor, cop, and criminal defence lawyer in the country. Federal prosecutor's report 2005
As Joyce Milgaard continues her crusade to expose the inner workings of the Saskatchewan justice system that sent her innocent son to prison for 23 years, her son David Milgaard is using his $10-million compensation to travel the world, recently obtaining a para-gliding licence in Romania.
Joyce Milgaard hopes the Saskatchewan government will soon call a long-promised inquiry into the wrongful conviction, in light of Monday's Saskatchewan Court of Appeal dismissal of Larry Fisher's bid to have his 1999 conviction for the same crime overturned.
David Milgaard served almost 23 years in prison for the 1969 rape and murder of Saskatoon nursing assistant Gail Miller before being released in 1992 after the Supreme Court recommended he be given a new trial.
Saskatchewan's attorney general entered a stay of proceedings later that year.
In 1997, a DNA sample cleared Milgaard, and the Saskatchewan and federal governments later agreed to pay him $10 million in compensation.
Since his release, David Milgaard has married and settled in Vancouver. He has travelled to 25 countries, including a recent trip with his wife to Australia and New Zealand, Joyce Milgaard said Monday.
"It's good to see him enjoying life," she said.
"People said he would never be normal but you know, he's doing really, really well, I think. I'm very proud of him," she said.
David Milgaard is happy to stay out of the public eye and enjoys the anonymity of foreign countries. He doesn't like to be seen in public with his mother, because people recognize her and then realize who he must be, she said.
The DNA findings that cleared Milgaard pointed to Fisher, a convicted serial rapist who had raped other women in the same neighbourhood within months of the Miller rape and murder.
Fisher was convicted on Nov. 22, 1999, and sentenced to life in prison with no chance of parole for 10 years.
He appealed earlier this year on the grounds that much of the evidence used by the Crown should not have been admitted at trial and that the jury should not have been told to ignore the Milgaard conviction.
Dismissing the appeal Monday, the Appeal Court noted that, while the defence exposed the weakness of the DNA expert's knowledge of the database used to calculate the statistical improbability of a random match between the samples, the defence failed to produce its own expert evidence to contradict her testimony.
The court found the trial judge was correct in telling the jury the Milgaard conviction was irrelevant, and upheld the trial judge's decision to allow similar fact evidence to be heard at Fisher's trial.
"It is the modus operandi of the perpetrator of the various rapes that links them to the assault upon Ms. Miller," the decision reads.
"The attacks were all brazen, taking place in the dark, but always at hours when other people were out and about, and in residential areas full of houses with people in them. . . . With the aid of a knife or the threat of a knife, the perpetrator forced the victim, whom he found walking on the street, into an alley, and forced her to fully or partially undress and raped her," the decision states.
It further noted that two of the rapes occurred within a few months of the Miller murder, and in an area about 12 city blocks away from where the Miller murder occurred and where Fisher lived at the time.
Fisher will likely seek leave to appeal to the Supreme Court, his Calgary lawyer, Brian Beresh, said Monday.
"I think the decision with regard to similar fact and the DNA require some clarity by the High Court," Beresh said.
"We think it's a matter of national importance and given the profile of this case, the law has to be clarified," he said.
Crown prosecutor Anthony Gerein said Monday he doesn't think any of Fisher's appeal issues have merit.
"In each case, the Court of Appeal applied what the Supreme Court has already said in these areas. So the Supreme Court has spoken on these things," Gerein said.
"From the beginning the Crown took the position that Mr. Fisher received a fair trial. This decision of the Court of Appeal confirms that," he said.
Fisher has 60 days to file an appeal to the Supreme Court, unless he requests and is given an extension. The Crown then has 30 days to respond. Those written submissions are then considered as the Supreme Court decides whether or not to hear the appeal.
Justice Minister Eric Cline was unavailable for comment Monday, but former justice minister Chris Axworthy said at the time of Fisher's conviction that the government would wait until he had exhausted the appeal process before holding an inquiry.
Joyce Milgaard is already pushing the province to fulfil its promise.
"We were very grateful that this (appeal dismissal) has happened because the inquiry hopefully can go forth immediately," she said.
She thinks it is "unfortunate" that Fisher will try to get a hearing before the Supreme Court because it continues to postpone the inquiry.
"It's been years since they promised an inquiry and how much longer is it going to wait? And why? Are they waiting until everyone that was implicated in it has passed on? They just don't want to deal with it," Milgaard said. "I think it's really important to have the public inquiry, the sooner the better. We'd like to get on with our lives. I'm sure the Miller family would like to get on with theirs and get this whole inquiry business over and done with.
"It's so important that the people that deliberately withheld pertinent information in 1970, that they be held accountable. Unless people are held accountable, then people, lawyers, crown attorneys, witnesses, policemen, they're all going to still do the wrong thing because they think, 'Oh well, nothing happens if I lie.' So it's important that that accountability take place and then maybe the system could function properly. It certainly isn't functioning now."
Milgaard is concerned that the inquiry, when it is called, have "the broadest possible mandate" so as not to exclude any of the relevant information.
"I want the Saskatchewan government to know that the David Milgaard support group is still running . . . It will be a voice to be heard from if this inquiry is not a broad inquiry. We aren't going to just go away. I'm going to be out there, making sure that it is a proper inquiry,"she said.
More than 30 years have passed since Saskatoon police conducted the scandalous investigation that put David Milgaard in prison. Half a dozen chiefs have headed the department since. There have been no consequences for the Saskatoon police who have continued to conduct scandalous investigations -- or non-investigations.
Joyce Milgaard says she is weary of waiting for Saskatchewan's government to make good on its promise of an inquiry into the wrongful conviction that left her son imprisoned for 23 years, and is again pressing for action.
It was her tireless efforts that led to a Supreme Court of Canada review of David Milgaard's 1970 conviction for the 1969 murder and rape of Saskatoon nursing assistant Gail Miller. In 1992, David was released from prison, and in 1997 he was exonerated based on DNA tests that showed semen found on Miller's clothes didn't match his.
The Saskatchewan government apologized in 1999 and, along with the federal government, paid David $10 million in compensation -- the biggest criminal compensation package in Canadian history.
The inquiry into how a 17-year-old could have been falsely imprisoned for more than two decades was announced by the government two years ago.
"The time it's taking is absolutely ridiculous," Milgaard said Monday from Halifax, where she attended a Nova Scotia Supreme Court hearing that exonerated a man wrongfully convicted for the murder of his wife.
There are 41 other cases in Canada being looked into by Milgaard, who lives in Petersfield, Man., a small community 30 minutes north of Winnipeg, near the southern edge of Lake Winnipeg. She is particularly interested in closing the book on her son's case.
"I just feel that it's really important that they (Saskatchewan Department of Justice) stop dragging their feet and get the inquiry put forward. Why is it taking so long? All the people that were responsible for this will be dead before it gets into court," she said.
Larry Fisher, a previously convicted rapist, is now serving time for Miller's murder. The same DNA tests that exonerated Milgaard implicated Fisher in November 1999. He was given 25 years with no parole.
In 1970, David Milgaard was a drifter travelling through Saskatoon. By coincidence, he was staying at the same apartment building as Fisher the morning Miller's body was found.
Fisher's lawyer, Brian Beresh, is seeking an appeal, citing contaminated DNA evidence and the prejudicial nature of evidence from three of Fisher's rape victims. The provincial government decided not have the inquiry until the appeal process had been exhausted.
"But what about David?" asked Milgaard. "They want to be fair to Larry Fisher, but I think there should be some fairness to the Milgaard family and other people wrongfully convicted that could benefit."
A Justice Department spokesperson said Monday the inquiry will continue to be shelved until Fisher has had his day. The process has been delayed as Beresh has waited for transcripts from Fisher's court appearances.
Milgaard scoffed at the excuse for the delays, saying "maybe I'll just have to pull my pup tent out again."
She made a threat to pitch her tent on the lawn of the Saskatchewan legislature in 1999 to force quick action on compensation for her son. The government, which had been against giving more than $5 million, soon agreed to a package worth twice that amount.
"It worked that time," said Milgaard. "Maybe it can again."
She said David is "doing really well, travelling and enjoying life" since overcoming the trouble he had adapting to his freedom. He couldn't hold a job and had an encounter with police in Vancouver, where he now lives with his wife.