Ah yes, when all else fails, why not admonish the mother of a clearly established innocent man who spent 23 endless years behind bars rather than place responsibility on the police and prosecutors of this horrendous case?
That's exactly what Justice Edward MacCallum did this afternoon, after three years of reviewing, examining and analyzing reams of paperwork, processing 114 witnesses, spending 11.6 million dollars, and listening to the sad and sorry tale of the wrongful conviction of David Milgaard. In 1997, Milgaard was finally exonerated of the charge of murdering Gail Miller in Saskatoon in 1969 after DNA evidence proved conclusively that he could not have been the killer. During his almost quarter-century stay behind bars, his mother Joyce worked tirelessly with private investigators, her priceless lawyers Hersh Wolch and the inexhaustible David Asper, family members, friends, church supporters and members of the public who believed in her cause. She did everything she could, including appealing to the press and the prime minister, to free her son because she knew that if she didn't, Dave would have been there forever -- he'd already tried to escape out of desperation and had been shot by the police for doing so. And he refused to admit guilt or show remorse, hence, the parole board wouldn't let him out.
On second thought, I'm going to go one step further. Instead of still being in jail, Milgaard could easily be dead. He was bipolar, he was kept in solitary confinement for long periods of time, and his medications were not well regulated. He also tried to kill himself twice in prison -- a little gang rape can really ruin your day! As the old saying goes, the third time is a charm, particularly for a man who would not have had any hope or reason to believe that he would ever see the daylight.
But instead of praising Joyce Milgaard for doing the system's prosecutorial work, and for actually finding the real killer, Larry Fisher, who remains behind bars for that murder, Justice MacCallum decided to slam her once again. She was overzealous. She was paranoid. She thought that there was a cover-up (funny that Larry Fisher was never tried in Saskatoon for his rape convictions and that the same cop who handled the Fisher rapes was working on the Milgaard case. What a coincidence! But not a cover-up, of course.)
Justice MacCallum did acknowledge that testimony from Nichol John should have been stricken from the record during Milgaard's original trial because what she had said on paper to the police about seeing David stab Gail, she never repeated again, particularly during the trial. (Police pressure? A drugged-out, financially-challenged kid who was only 15 or 16 years old, held in jail overnight without her parents or any lawyers present? Poor Nichol now suffering from memory loss or false memory syndrome? Nah, this is all in the imagination of the Milgaard Camp, which lacks an appropriate trust of authority.)
In all fairness, MacCallum also recommended that juvenile investigations be taped in the future. And he did say that a now deceased policeman from Calgary was aggressive in his polygraph of Nichol John, but MacCallum stopped short of calling this a form of misconduct.
There were so many
ways in which the Milgaard case was mishandled, and I haven't even looked at the information for two years, but the top ones that come to my mind were the coercion of teenagers to say exactly what the police wanted them to say. Originally when they were interviewed, Ron Wilson and Nichol John said that Milgaard never did anything wrong. It was only upon repeat interrogation that they said otherwise, and Nichol said that David stabbed someone and stole her purse SOLELY when she was being held overnight without counsel in jail. Then she retracted that comment and never made it again.
Albert Cadrain, one of David's friends, testified against him and tipped the police off to blood on David's clothing. But Cadrain received a reward of $2000, which was a lot of money back in 1970, especially to a kid. And his mental health was always less than stellar (several bricks short of a driveway, actually, through no fault of his own). He was hospitalized several months after he'd made these comments about Dave; moreover, when he told the police that he saw blood, he also said that he saw the Virgin Mary but the latter was ignored and never treated as the hallucination that both it and the blood were.
Out of the 13 different recommendations that Edward MacCallum made, according to The Canadian Press
, one of them was that "the federal government establish an independent review commission to examine claims of wrongful conviction," so that these appeals no longer have to go to the justice minister. But this recommendation has been made many times before and no one has followed through. Who has the authority to create such a commission? Let them do it!
So, the police and prosecutors involved in this case are officially off the hook. They didn't have tunnel vision, they didn't turn a blind eye to Larry Fisher's striking M.O., and they didn't make any catastrophic errors. Then how did a perfectly innocent kid spend the better part of his youth and middle years in a dark, dangerous hole? That's like saying that the operation was a success but the patient died -- this is a whitewash.
Justice MacCallum has proved the Milgaard point precisely, which is that the justice system is totally incapable of examining itself in an unbiased fashion.
Former co-coordinator of the Milgaard support group in Ottawa