No Misconduct Found In Milgaard Wrongful Conviction Case
Posted September 26, 2008 12:00 pm.
This article is more than 5 years old.
The judge who spent years sifting through evidence in David Milgaard’s wrongful murder conviction has found no professional misconduct by police or prosecutors.
Justice Edward MacCallum also says an aggressive, decades-long campaign by Milgaard’s mother, Joyce, that suggested wrongdoing by investigators was “counter-productive” to freeing her son.
It was Joyce Milgaard’s practice to “attack indiscriminately anyone who had a part in her son’s conviction,” MacCallum wrote in his 800-page report released Friday.
“There was no evidence of a frame or coverup, but the allegations attracted national and international media attention.”
MacCallum said that the family’s unprecedented public campaign may have eventually helped get Milgaard out of prison, but it also caused resentment among police and prosecutors , which proved to be a stumbling block in having the case reopened.
MacCallum found that Saskatoon police did make some mistakes, including a critical error not to record two vital witness statements.
But other allegations Milgaard and his supporters have made over the years — including accusations police coerced, pressured and even tortured witnesses — simply were not true, the judge said.
MacCallum is critical of the original trial judge who mistakenly allowed the jury to hear the police statement of a witness who did not repeat the same information on the stand.
Milgaard’s friend Nichol John told police she saw Milgaard stab a girl in an alley but would not repeat the claim at trial.
The province’s Appeal Court later ruled an error was made, but that Milgaard had suffered no prejudice.
“The Saskatchewan Court of Appeal was wrong,” MacCallum wrote. “Allowing the jury to hear John’s statement was a turning point in the trial and instrumental in Milgaard’s conviction.”
Later that year, the Supreme Court of Canada also refused to hear Milgaard’s appeal.
Milgaard spent 23 years in prison for the rape and murder of Saskatoon nursing aide Gail Miller. Her partially clad body was found in a snowy alley on Jan. 31, 1969.
The Supreme Court threw out his conviction in 1992, and he was released from prison after the Saskatchewan government decided not to hold a new trial. He was exonerated in 1997 through DNA tests.
Milgaard received an apology and $10 million in compensation from the provincial government in 1999, the same year serial rapist Larry Fisher was convicted of the crime.
The inquiry, which cost an estimated $10 million, concluded in December 2006 after sitting for 191 days over almost two years.
Milgaard, now 56, lives in Calgary with his wife and two young children.
There are 13 recommendations contained in the report.
One of them suggests the federal government should establish an independent review commission to examine claims of wrongful conviction.
The only recourse right now to have a conviction overturned — after all appeals have been exhausted — is through an application to the federal justice minister.
“The federal minister of justice should not be the gatekeeper to determine whether an alleged wrongful conviction should be returned to the court for further review,” wrote MacCallum.
“The criminal justice system failed David Milgaard, because his wrongful conviction was not detected and remedied as early as it should have been.”
MacCallum acknowledged he is the fifth public inquiry judge, dating back to 1989, to call for the same change.
And while he doesn’t know the cost of implementing a new system, which he writes should be modelled on the one in Britain, the judge estimates it would save government money in the long run.
“Without early and efficient intervention by an independent, proactive agency, the costs associated with resolving claims of wrongful convictions will remain unacceptably high.”
MacCallum said his recommendation of an independent review agency could more quickly and effectively investigate claims of wrongful conviction and send those that warranted appeals back to the courts.
Prisoners and their supporters don’t often have the knowledge and resources needed to identify the legal grounds needed for claims of wrongful conviction, he said.
Another of MacCallum’s recommendations suggests compensation for a questionable conviction should not be tied to proving factual innocence, but also be given out when there is a proven miscarriage of justice.
He said police must also make sure to both audio and video record interviews involving young people in major cases.
And every complaint police receive that calls into question a conviction should be referred to the director of public prosecutions, MacCallum said.
In 1989, Fisher’s former wife reported to Saskatoon police that she believed he had killed Gail Miller. The report was filed but not followed up on.
The finding of no professional misconduct echoes two previous reviews of the case by the federal justice minister, a Saskatoon Police Commission inquiry and a two-year RCMP investigation.
Milgaard’s supporters have rejected and questioned those investigations.
Their accusations also included claims the Crown prosecutor in the case paid witnesses for testimony and colluded with Milgaard’s defence lawyer to put Milgaard behind bars.
During the inquiry, the family’s lawyer, Hersh Wolch, went as far as to say police had “tunnel vision” by focusing on Milgaard as a suspect instead of searching for the real killer.