CANADA: THE DRISKELL CASE WASHUP

In the end, there wasn't one hair of evidence against James Driskell. Now, a former Ontario judge who examined the Winnipeg man's wrongful murder conviction is calling for a Canada-wide audit of criminal cases that featured microscopic hair comparisons - and an independent review of cases involving the Crown attorney who prosecuted Driskell.

There were apologies all around today to Driskell, 48, who was wrongly convicted in 1991 of murdering Perry Harder, his former partner in a "chop-shop" operation. Flawed science and the suppression of evidence relating to the credibility of two key Crown witness were largely to blame for the 13 years, one month and seven days Driskell spent behind bars, Patrick LeSage, former chief justice of Ontario's Superior Court of Justice, said in a wide-ranging report released today from a commission of inquiry.

His findings were unambiguous. "What happened in this case is just plain wrong," LeSage said in concluding the conduct of four Crown prosecutors fell below professional standards and that Winnipeg police officers - including the city's former police chief, Jack Ewatski - failed to disclose pertinent evidence "before, during and after Driskell's trial."

James Lockyer, one of Driskell's lawyers, said the most significant aspect of the report is "the likelihood that we're going to get a chance to examine more potential wrongful convictions." LeSage recommended that Manitoba justice officials arrange an independent, external review of cases if anyone prosecuted by George Dangerfield, the lead Crown lawyer in the Driskell case, comes forward claiming to be wrongly convicted.

Though "a dedicated hard-working Crown attorney," Dangerfield, now retired, prosecuted four other homicides that involved issues of faulty hair comparisons or undisclosed evidence, LeSage said. One was the notorious case of Thomas Sophonow, tried three times for a 1981 murder he didn't commit.

LeSage also spent considerable time in his report dealing with a thorny, emerging problem for the justice system: How to help innocent people regain their standing in the community. The issue has taken on huge significance in the case of Steven Truscott, whose lawyers are asking the Ontario Court of Appeal to issue a formal declaration of his innocence. The Driskell inquiry was told that findings of "guilty" and "not guilty" may be an inadequate response to the phenomenon of wrongful convictions and that factually innocent persons - as well as the public - may need a more formal and official means of exoneration.

LeSage expressed reservations about a proposal calling for the use of "innocence hearings," at which a wrongly convicted person, once a conviction is set aside, could attempt to prove factual innocence on a balance of probabilities and obtain a judicial declaration to that effect. But the problem may require "new and creative ways of thinking," said LeSage, who recommends that federal, provincial and territorial ministers look for solutions.

In his report, LeSage also strongly discourages the practise adopted by justice ministers in several cases of wrongful conviction - including Driskell, David Milgaard and Gregory Parsons - of "staying" the charges, which merely "suspends" the proceedings and drapes the innocent with a "residual" taint.

In the Driskell case, Harder died from two gunshot wounds to the chest. The Crown's theory was that Driskell killed him because Harder was going to testify against him at a trial for possessing stolen auto parts, though Driskell's lawyer said the charges were going to be withdrawn. The case hinged on testimony from two key witnesses, Reath (Ray) Zanidean and John Gumieny, and evidence that three hairs that allegedly came from Harder were found in Driskell's van. DNA tests in 2002 established Harder was not the source of the hairs and they in fact came from three people.

Meanwhile, the jury was "seriously misled" about Zanidean's motivations for testifying, LeSage said. Zanidean claimed he overheard Driskell plot and confess to the murder. He was backed up at the trial by Gumeiny. Leading up to the trial, Zanidean had been negotiating for immunity on an arson charge laid after he allegedly burned down his sister's house in Saskatchewan. He had also been given tens of thousands of dollars and had his mortgage arrears paid off by Manitoba justice officials. Winnipeg police arranged to have the Saskatchewan arson charge dropped but did not formally advise Zanidean before trial.

There was no paper trail documenting the negotiations, but all players understood implicitly there was a deal, LeSage said. "The rationale was that since no explicit promise or favour was given the witness prior to his testimony, he would not be contaminated and not testify in return for awards granted."

As for the hairs, LeSage said he is "concerned" problems in Driskell's case "are not unique to his case or unique to Manitoba." Before Driskell's first-degree murder conviction was quashed in 2005, the Manitoba justice department reviewed murder cases in that province which featured hair comparison evidence. The results "have been disturbing," LeSage said. In four cases, including Driskell's, the hairs came from multiple sources - none from the source alleged at trial. A recent study of FBI hair comparisons found errors in 11 per cent of cases. Hair comparison evidence played a key role in the case against Guy Paul Morin.

With advances in DNA testing , the RCMP has abandoned the practise of visual hair examinations and the Centre of Forensic Sciences in Toronto has largely phased it out, the inquiry heard. What's not known is how many people may still be behind bars, convicted on the basis of a dangerous "science."

Report here

Further comment here. Excerpt:

"Police and prosecutors involved in the 1991 James Driskell wrongful conviction withheld evidence from the defence, conspired to mislead the jury and allowed a star witness to commit perjury, a judicial inquiry into the case has concluded.

Inquiry commissioner Patrick LeSage, in a scathing 187-page report released Thursday, apologized to Driskell and strongly suggested Driskell be compensated for his 13 years behind bars."

Responding to those remarks, Manitoba Attorney General Dave Chomiak announced the province would be making a $250,000 "good-faith payment" to Driskell while negotiating a larger compensation agreement.



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