Melvyn Green -- Suggestions for Reform

Milgaard's original prosecutor, "Bobs" Caldwell, testified at the hearing this week. He said that he had some concerns about the original case but proceeded anyway because the police had presented such a strong case against David.

This failure to questions the police fits in well with some ideas that were presented recently by AIDWYC's co-president, Mel Green, in an article entitled "Crown Culture and Wrongful Convictions: A Beginning." Green began by saying that wrongful conviction shared certain traits such as the police having tunnel vision, the use of jailhouse informants, a lack of full disclosure, false confessions, mistaken identifications, and what he called "junk science."

He went on to discuss "Crown culture", which he defined as a collective way of thinking, with shared values and attitudes. Canadian miscarriages of justice appear to be less likely the result of "deliberate malice" than our American or British counterparts; instead they were caused by systemic failures, according to Green. "Every Canadian historical wrongful conviction is attributable, at least in part, to the Crown's failure to provide full disclosure to the defence." This didn't occur because the Crown was corrupt or negligent. It happened because the justice system is currently set up in an adversarial manner and prosecutors want to win. Consequently, in the cases of Milgaard, Morin, Marshall and Sophonow in Manitoba, the prosecution took advantage of their position and did not make full disclosure to the defence.

Green discussed personality characteristics of prosecutors, saying that they're often "macho", "crime fighters", or see themselves as do-gooders. (Hello, Nancy Grace!) Prosecutors automatically trust the police and have a lot of sympathy for crime victims. They regularly see crime victims and their families whereas they don't see the defendant and his family. This makes it easy for prosecutors to develop tunnel vision, so that they don't question facts that appear to be incongruous with their own theories. They are also reluctant to reassess a situation after a conviction. Case closed! Look at the prosecutor on Larry King Live who refused to concede that Kirk Bloodsworth was innocent in the face of concrete scientific proof. As we well know, prosecutors are loath to admit their own mistakes or take any responsibility for actions that may have resulted in miscarriages of justice.

In order to remedy the current situation, Mel Green proposed several ideas for reform. Firstly, prosecutors need to admit that they are fallible human beings who can make mistakes. They need to be held accountable for their behaviour. Secondly, the judicial system must let go of the notion that it is critical to win a case at all costs; winning should not be the sole goal of the prosecutor. Presenting the facts in a fair yet persuasive manner, with the notion of JUSTICE in mind, is the ideal goal.

Green recommends discipline for prosecutors who make serious errors and rewards for those who are brave enough to report police misconduct. He suggests that Provincial Crown Law offices start special units to investigate cases of "factual innocence." (And this team should not include the original prosecutor.) Lastly, Green offered an innovative idea for change: the province should consider "outsourcing a portion of our caseloads to private lawyers to make the whole process less adversarial and partisan."

If any of these suggestions for reform had been in place during Milgaard's original trial, Bobs Caldwell might have listened to his own intuition, which led him to question certain issues around Gail Miller's clothing, rather than blindly putting his faith in the police investigation.

Sigrid Mac