Canada: Only a dead man was at fault in a notorious false conviction

Milgaard commission releases report. It found that there was a determined attempt by police to "get" Milgaard -- using the most dubious methods -- and a refusal to look at exculpatory evidence. But no-one was at fault apparently -- except for one man who is now dead. What a whitewash!

A senior Calgary investigator who obtained false statements contributed to the 23-year wrongful imprisonment of David Milgaard, who is now living in this city. A long-awaited report from the commission of inquiry into Milgaard's wrongful conviction for the 1969 murder of Gail Miller -- released Friday in Saskatoon -- also found a mistake by the trial judge and a wrong finding by the Saskatchewan Court of Appeal were major factors in the case.

But commissioner Edward MacCallum cleared Saskatoon police, the RCMP, Crown prosecutors and federal justice officials of any wrongdoing, saying they acted in good faith.

Milgaard's mother, Joyce, and his lawyer, Hersh Wolch, welcomed the commission's recommendation that an independent review agency -- similar to one already used in the United Kingdom -- be created to investigate claims of wrongful conviction. "That was our main objective for the whole inquiry," Wolch said Friday, adding this is the fifth time commissions have recommended setting up such an agency in Canada.

Joyce called the recommendation the "imperative." "Not everyone has a mum that is going to spend 40 years chasing the justice system," she said. "If they're going to push the federal government for that and that goes through, then we'll feel we've accomplished something. "If they really want me to go away, bring the independent board in," she added with a laugh.

Milgaard did not attend Friday's news conference following release of the report, but is pleased with the commission's final recommendation, according to Wolch. "He's very happy about the independent board and giving other people a chance to avail themselves of its services." Milgaard, a stay-at-home father of two -- Robert, 2, and six-month-old Julianna -- now lives in Calgary with his family. "He's really enjoying life at home," Joyce told the Herald.

The family had settled in Vancouver for a while, but found the damp and cold too much. "His wife is from Romania and wanted a place a little warmer. Winnipeg was too cold, so they stopped in between in Calgary," she explained.

He has also apparently taken up paragliding as a hobby -- something Joyce was surprised to learn Friday from Wolch. Wolch said Milgaard finds it difficult to relive the memories of his arrest and conviction and the lawyer blasted the commission for forcing him to testify. "He had little or nothing to add to the commission. It was really a lack of empathy," he said. "They wouldn't accept David was damaged after 23 years in jail." Wolch and Joyce were also critical of the commission's report, which said the media campaign resulting from the Milgaards' push for public support and to reopen the case was full of "inflammatory, inaccurate and misleading" information.

"The media stories relied primarily on the Milgaards and their counsel as sources and were often incorrect and misleading," MacCallum found. The erroneous stories dismayed officials and resulted in their distrusting any information emanating from the Milgaard camp, he said. [Blame the victim!] Joyce said it was difficult to read the report in which she was reprimanded. "As far as I'm concerned, David would still be in prison if I didn't do what I did," she said.

Among other findings in the report, MacCallum dismissed suspicions of conspiracy. However, police should have re-opened the investigation of the 1969 rape and murder of nursing assistant Gail Miller in 1980, when the ex-wife of serial rapist Larry Fisher went to Saskatoon police saying she thought he was the real killer, MacCallum found.

Believing Milgaard was the killer, but lacking evidence to charge him, Saskatoon police brought in Art Roberts, a senior Calgary detective, to conduct polygraphs on Milgaard's companions, Ron Wilson and Nichol John. MacCallum found Roberts did not use "outright coercion" in his questioning but he "somehow pressured" John and Wilson "to tell him what Roberts thought to be the truth." "But for the questioning of John and Wilson by Roberts, Milgaard would not have been charged and tried for the crime of murder," MacCallum found. Roberts obtained damning statements from Wilson and John, who had, until then, maintained Milgaard's innocence when questioned by other police.

Roberts' notes and polygraph records of the interrogations were never part of the police or prosecution file and have never been found. Not recording the questions he asked and the polygraph results was a "critical failure," said MacCallum. Roberts, who joined the Calgary force in 1940 and retired in 1974, has since died. He was considered an interrogation expert within police circles and was the first qualified polygraph operator in Canada.

In 1973, Roberts was given a special assignment by the Calgary Police Commission to research and prepare an operational manual for the city department that emphasized interrogation methods and procedures. The manual was never adopted by Calgary police. A similar manual produced for RCMP advised officers that brainwashing techniques may be used to get information from suspects or witnesses. It was dropped by RCMP in 1975.

Another opportunity for the mistakes to be corrected came in 1980, when Linda Fisher, whose ex-husband, Larry Fisher, had recently been charged with the rape and attempted murder of a woman in North Battleford, Sask., about 140 kilometres northwest of Saskatoon, went to Saskatoon police and gave them reasons why she thought he had killed Miller.

An officer took Linda Fisher's statement and sent it to a superior, who gave it to Jack Parker, an officer who had been involved in the investigation. He filed the report without acting on it or notifying any of the parties involved in the case.

"The criminal justice system failed David Milgaard because his wrongful conviction was not detected and remedied as early as it should have been," MacCallum wrote. Joyce Milgaard hired a series of lawyers to try to have David's case reopened, using the only recourse available in cases of wrongful conviction: an appeal to the justice minister, based on significant new information.

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