'The criminal justice system failed David Milgaard': inquiry's report

David Milgaard, who spent 23 years behind bars for a murder he didn't commit, might have been released from jail years sooner if police had followed up on a lead they received in 1980, according to a Saskatchewan inquiry into the case.

Milgaard was 16 at the time that Gail Miller was killed in Saskatoon in 1969 and he was convicted in the case a year later. He wasn't released from prison until 1992, when the Supreme Court of Canada ruled he should get a new trial. DNA evidence eventually cleared Milgaard and helped convict another man, Larry Fisher.

A commission of inquiry's report into the case, released Friday in Saskatoon, concludes police in that city received a tip from a woman that "might have led to Fisher as a serious suspect in 1980 had it been followed up."

The report on the woman's visit to police was "received, filed, referred and possibly evaluated on a cursory basis within the Saskatoon police, but it went no further. It should have," says the report.

The conviction of Fisher, a convicted serial rapist in Saskatoon, and the ultimate exoneration of Milgaard was based upon critical DNA evidence that arose in 1997. Although Milgaard was released in 1992, the Miller case was not reopened until the new DNA evidence was available.

"The criminal justice system failed David Milgaard," concludes Justice Edward MacCallum, the Alberta judge who headed the inquiry.

Police slammed for 'critical failure' in questioning witnesses

Milgaard, who was originally from Winnipeg and now lives in Calgary, eventually received a $10-million compensation package from the Saskatchewan government. The government also called the inquiry, which wrapped up two years before the release of the report.

The 815-page report, released in two volumes, provides a comprehensive review of all elements of the Milgaard case, from the circumstances surrounding Miller's death to Milgaard's conviction and what MacCallum calls the "epic struggle" led by Milgaard's mother, Joyce, who always believed in her son's innocence.

"There is no simple explanation as to why David Milgaard was wrongfully convicted and why it took so long to reopen his case," MacCallum writes.

However, he singles out the Saskatoon police for what he described as a "critical failure" in the questioning of two key witnesses, Nichol John and Ron Wilson, friends of Milgaard who were on a road trip with him when the murder took place.

They were interviewed by Art Roberts, a police polygraph expert brought in from Calgary by Saskatoon investigators, and that evidence was key to Milgaard becoming a suspect and being found guilty, the inquiry found.

"But for the questioning of John and Wilson by polygrapher Roberts, David Milgaard would not have been charged and tried for the crime of murder," MacCallum said.

"John said that she saw Milgaard stab a woman … that cannot be true" given that Milgaard was later cleared, MacCallum writes in the report.

"How then did she come to say it? I do not find that she deliberately lied, and I do not find that Roberts induced her to lie, although both must be acknowledged as possibilities. I … must conclude that [Roberts] somehow pressured John into telling him what he thought to be the truth."

Police acted 'in good faith,' inquiry finds

Despite that finding, the inquiry did not find any malfeasance on the part of police. MacCallum says the investigation was done in accordance with the standards of the day and "in good faith."

"Tunnel vision, negligence and misconduct have been alleged, but not shown," the commissioner writes.

MacCallum said the trial itself was conducted "fairly" by both the Crown prosecutor and Milgaard's defence lawyer.

However, the inquiry was critical of how the judge oversaw the case.

Milgaard's defence was "prejudiced" by a judicial error in applying the rules of evidence, MacCallum says.

He says the defence case was also prejudiced by "excessive intervention by the trial judge when witnesses were testifying."

"Displays of impatience can have profound consequences," writes MacCallum, a trial judge himself in Alberta.

Joyce Milgaard's tactics sometimes hindered her case

Despite the fact that Joyce Milgaard was ultimately successful in winning her son's release from prison and in his eventual exoneration in the murder, the commissioner questioned whether her methods sometimes hindered the cause.

Joyce Milgaard and a team of investigators, lawyers and other supporters often provided information to the media that turned out to be untrue, the inquiry found.

That undermined her credibility with authorities in Saskatchewan and Ottawa, he says.

"The 'media-circus' … was, I find, counterproductive to the reopening effort in the long-term, although it can be credited with getting Milgaard out of prison and with the quashing of his conviction."

MacCallum also dealt extensively with allegations of a coverup and negligence directed at public officials connected with the case.

"[T]he media campaign weakened confidence in the administration of justice and unfairly hurt the reputation of many individuals involved in the investigation, trial and review of Milgaard's conviction," the report says.

Create independent body on wrongful convictions, inquiry urges

The commission calls for the federal government to create a new independent body in Canada to review allegations of wrongful convictions.

"Had such an agency been in place in 1980, the investigation into the death of Gail Miller would probably have been reopened," MacCallum writes.

He said that commissions of inquiry like his, which cost $10 million, could be avoided if such an agency was in place. MacCallum acknowledged it was a very "expensive exercise."

"If significant public expenditure can be avoided by the establishment of a truly independent, transparent and effective investigative agency, it should be done."

The commission made 13 recommendations in total, including a call for more facilities to support complex autopsies for sudden death cases.

Milgaard 'very pleased' with report

At a news conference after the release of the report, Joyce Milgaard supported the call for an independent body to review allegations of wrongful convictions.

When asked about commission criticism directed at her for how she pursued the matter, she replied: "I did what I felt was necessary."

David Milgaard — who was not in Saskatoon for the report's release — is "very pleased" with the inquiry's findings, Hersh Wolch, a longtime lawyer for the Milgaards, told reporters.

Police methods improved: Saskatoon chief

Clive Weighill, chief of the Saskatoon Police Service, said he has reviewed the report and accepts the findings.

"I respect and agree with the findings of the commissioner in regard to the Saskatoon Police Service and the many other agencies involved," he said in a news release.

He said investigative practices have changed since Milgaard's conviction.

"The Saskatoon Police Service and policing in general have adopted new methodologies and technologies to substantively reduce the likelihood that someone would be wrongfully accused."