The Milgaard matter: Milgaard team's arguments
Tuesday, December 12
- Organization: The StarPhoenix
Members of the Saskatoon Police Service "crossed the line from investigating evidence to creating evidence" by feeding information and a theory of the crime to teenage witnesses Nichol John and Ronald Wilson, lawyers Hersh Wolch and Joanne McLean, who represent David Milgaard and Joyce Milgaard respectively, argued in an 81-page, joint written submission to Milgaard inquiry Commissioner Justice Edward MacCallum.
Written submissions from the 14 parties to the commission of inquiry into the wrongful conviction of David Milgaard were released to the public after brief, oral final arguments Monday in Saskatoon.
MacCallum will now retire to write his report of findings from more than a year and a half of hearings into matters that covered a 30-year span. It could be six months or more before the report is completed.
MacCallum's job is to examine the murder investigation, the prosecution and whether the case should have been reopened in the years after the conviction.
Lawyers for police and prosecutors defended the work of their clients and argued mistakes were made without malice.
The Milgaard lawyers said false information in a summary written by Det. Raymond Mackie made its way into damning statements provided by the teens after a weekend in police custody in May 1969. The statements were never properly scrutinized, the lawyers said.
"The police dealings with the 16-year-old Nichol John and 17-year-old Ron Wilson in May of 1969 were reprehensible, then and now," the Milgaard lawyers argued.
Saskatoon police must have told the teens they would be charged with the murder if they didn't inculpate Milgaard, his lawyers assert.
Crown prosecutor Bobs Caldwell deliberately withheld from the defence information about other sexual assaults in the area at the time, which could have caused the jury to consider that unknown rapist as the killer and to doubt Milgaard's guilt, the lawyers argued.
Caldwell also withheld other information that undermined the prosecution theory about the crime, the Milgaard lawyers argued.
"Caldwell's failure to live up to his duties to disclose evidence to David Milgaard's counsel was one of the causes of the judicial error that deprived David Milgaard of his liberty for nearly 23 years, for a crime he had not committed," the Milgaard lawyers argued.
The Milgaards also point to mistakes by other members of the justice system: Chief Justice Alfred Bence erred in declaring John an adverse witness and allowing Caldwell to cross-examine her in front of the jury on a statement she said she didn't remember making.
The Saskatchewan Court of Appeal should not have allowed the conviction to stand because the jury was probably influenced by information it should not have heard, the Milgaard lawyers assert.
After David Milgaard's failed appeal, there were other opportunities for police and prosecutors to realize the mistake of his conviction and tell his lawyer, Wolch and McLean argue.
Police witnesses said they did not connect the Larry Fisher sexual assaults to the Miller murder, but the Milgaard lawyers point out that when Fisher assaulted his fourth victim, just weeks after Milgaard was convicted, three officers involved in both investigations could not have failed to see the similarities to the Miller murder.
If they didn't see a similarity, then why did two of the detectives, Raymond Mackie and Eddy Karst, immediately go to Albert Cadrain, a witness in the Milgaard case, to question him, the lawyers ask. The detectives' report did not include details about what he was asked, why he was questioned or what information he provided.
Karst's claim he never connected the crimes and forgot he had gone to Winnipeg and interviewed Fisher are "simply not credible," the Milgaard lawyers argued.
Milgaard lawyers continue to assert Serge Kujawa, former head of public prosecutions, should have seen "obvious similarities" between the circumstances of Miller's murder and the four Fisher sexual assaults.
Kujawa handled Milgaard's appeal and application to the Supreme Court between January and November 1971. He handled Fisher's guilty pleas between the spring and December of that same year, they stated.
Police ignored another opportunity to alert Milgaard to the existence of an alternate suspect in 1980, when Linda Fisher gave police a statement saying why she thought her ex-husband, Larry Fisher, was the real killer.
There was another missed opportunity in the mid-1980s, when a man notified the RCMP about Linda's suspicion of Larry.
David Milgaard's lawyer, Cal Tallis, provided a good defence but was hampered by a "constellation of unusual circumstances," Tallis's lawyer, Alexander Pringle, stated.
There was no easy explanation for why the teens would lie about their friend. Criticism of police was rare in 1970 and to suggest police caused the teens to lie probably would have caused the jury to distrust Milgaard's lawyer, Pringle suggested. The last-minute testimony of two boys who said Milgaard re-enacted the murder in a Regina motel was difficult to deal with because Tallis had no opportunity to cross-examine them at a preliminary hearing.
The lack of disclosure was an important handicap. If Tallis had the police reports that have been made public at the inquiry, he probably could have won the case, Pringle said.
Equally devastating were the mistakes of Bence, who refused to hear John's statement in the absence of the jury. Instead, Bence declared John a hostile witness in front of the jury. Caldwell was allowed to cross-examine her on the statement and Tallis was not.
As well, the jury was probably confused by Bence's direction to ignore the contents of John's statement but to consider whether it showed them if she was telling the truth about other things.
"Researchers have determined that when jurors are instructed by a trial judge to disregard incriminating evidence, this instruction often has an opposite effect," Pringle said.
Tallis recommends the law be changed to allow accused persons to have absolute right to choose trial by judge alone. Tallis points out research has shown juries can be confused by complicated expert evidence.
The jury in the Milgaard case may have been confused by the serological evidence, whereas a judge sitting alone would have seen the shortcoming of the expert opinion concerning blood in the semen and probably would have found the serological evidence tended to exculpate Milgaard, Pringle said.
The commission should not make adverse findings against David Asper in his role as advocate for Milgaard from 1986 to 1992, when Milgaard's application for mercy was in the hands of the federal Justice Department, said Asper's lawyer, Donald Sorochan.
Since the Saskatchewan Court of Queen's Bench ruled a provincial commission cannot inquire into the conduct of a federal employee on behalf of his or her employer, it cannot inquire into Asper's involvement in Milgaard's two applications to the federal Justice Department, he argued.
Asper's role in bringing about Milgaard's freedom is not within the inquiry's scope, Sorochan argued.
As well, Asper acted in good faith as an advocate, Sorochan stated.
"Advocates are required to argue as effectively as they can, on the basis of facts which they cannot be sure are true," Sorochan wrote.
