Hair evidence in Manitoba murder trials under scrutiny again

New DNA tests have revealed that hair strands used to convict two Manitoba men in separate murders didn't belong to them.

In light of the new evidence, lawyers for Kyle Unger and Robert Sanderson will ask the federal Justice Department to reopen the cases.

Manitoba Justice officials said they will support Unger's request, but are still reviewing Sanderson's case.

James Lockyer, who is with the Association in Defense of the Wrongfully Convicted, said they will apply to the Court of Queen's Bench to have Unger released while his request to have the case reopened is pending. He said Manitoba Justice has indicated it will "look favourably" on the bail application.

• INDEPTH: James Driskell

The province re-examined hair that was a key piece of evidence linking Unger to the sexually mutilated body of 16-year-old Brigette Grenier, found murdered in 1990. At his 1992 trial, the Crown maintained that the hair belonged to Unger.

The province also retested hair found at the scene of a 1996 triple murder in Winnipeg, for which Sanderson was one of three men convicted.

Leading up to both trials, the RCMP used hair microscopy to analyze the strands with a procedure in which forensic technicians compare strands based on qualities such as texture and colour.

DNA testing is much more accurate. It was recommended for the Unger and Sanderson reviews by the Manitoba forensic hair review committee, which was established last year after convicted murder James Driskell was released on bail following new evidence.

Driskell spent 12 years in prison for the murder of his friend Perry Dean Harder, whom police allege had implicated Driskell in a series of break and enters. Driskell denied any involvement in Harder's death.

At trial, police said three hairs found in Driskell's van belonged to Harder. However, further DNA testing done a decade later found that none belonged to the victim.

Driskell is now free on bail while the federal Department of Justice reviews uncovered evidence, including the hair results and reports that informants were paid for their information implicating Driskell.

"I see this as a positive development for justice in Manitoba, because of the willingness of the system to do a double check when there appears to be a problem," Manitoba's deputy Attorney General, Bruce MacFarlane, said Wednesday as he announced the developments in the Unger and Sanderson cases.

MacFarlane said that in Unger's case, the Manitoba Court of Appeal rejected his application to appeal based partly on the original hair evidence.

"The key question is if the Court of Appeal had known the results of the DNA, what effect would that have had on its decision?" he said.

MacFarlane also pointed out that there was other evidence at both trials that pointed to the guilt of the accused.

For example, police officers obtained a confession from Unger by pretending to be drug dealers. Unger, who has maintained his innocence, said at trial that he wanted to impress them, hoping they could give him a job.

While the committee was initially instructed to look at evidence in homicide cases, MacFarlane said that mandate will now be expanded to include sexual assault and robbery cases.

University of Manitoba law professor David Deutscher says the new DNA test weakens the case against Unger.

"If it's not his hair, then you're left with this confession that was induced," Deutscher said. "There doesn't seem to be anything in the confession that would not have been available to him through other sources.

"And then you really have to think about the validity of his conviction."