COVER

THE SURVIVORS

DAVID MILGAARD GETS A NEW START ON LIFE

D’ARCY JENISH April 27 1992
COVER

THE SURVIVORS

DAVID MILGAARD GETS A NEW START ON LIFE

D’ARCY JENISH April 27 1992

THE SURVIVORS

DAVID MILGAARD GETS A NEW START ON LIFE

Flanked by his parents, his two sisters, his brother and his two Winnipeg lawyers, David Milgaard stood outside Stony Mountain Institution one morning last week and gazed at the Manitoba prairie that stretched endlessly to the horizon under overcast skies. The 39-year-old Milgaard savored the view because, for the first time in almost 23 years, he was a free man. Two days earlier, the Supreme Court of Canada had recommended a new trial for Milgaard, who was convicted in 1970 of the January, 1969, rape and murder of Saskatoon nursing assistant Gail Miller. But Saskatchewan Justice Minister Robert Mitchell announced that his department would not try Milgaard again. As he walked away from the prison to climb into the backseat of his brother’s Ford LTD for the trip into Winnipeg, lawyer Hersh Wolch handed him a birth certificate. It was issued on April 16,1992, Wolch said, the day “when the rest of your life begins.” Milgaard, who wore a baseball cap and prison-issue blue jeans, a green work shirt and running shoes, turned to reporters and said hesitantly: “It’s good to be out forever. I’m just going home.”

The Milgaard family and their lawyers were jubilant as they left the penitentiary, but they expressed misgivings about the Supreme Court ruling. Wolch said that he and his assistant, David Asper, were disappointed that the five justices who reviewed the case earlier this year failed to make a clear ruling on Milgaard’s guilt or innocence. Instead, the court said that Milgaard, who was serving a life sentence, should have a new trial because evidence discovered since his original conviction could have an impact on a jury’s decision. As well, some of the witnesses at Milgaard’s first trial have since admitted that critical parts of their testimony were fabricated. Speaking from the steps of Stony Mountain, Asper said: “This is a very proud moment in my life, seeing him leave this institution. What we seek now is the complete vindication of David Milgaard to establish that his conviction was improper.”

Battles: For Milgaard, being released from prison may not be the end of his legal battles. The former convict’s lawyers said that they also intend to press the Saskatchewan government for financial compensation. Said Wolch: “If a man has spent 23 years in jail and hasn’t got a conviction, isn’t that what compensation is all about?” But in Regina, Mitchell declared that he would not order an inquiry into the Saskatoon police department’s investigation of the Miller murder or into his department’s prosecution of Milgaard. And he said that the

government would not offer Milgaard any financial compensation.

For the Miller family, Milgaard’s release served to renew their concern that whoever killed Gail be brought to justice. The murdered nursing assistant’s brother, Jack Miller, a Saskatoon department-store employee who was 14 years old at the time of his sister’s death, said that the family supported Milgaard’s struggle to be released from prison. “It’s a

tough one for us,” Miller, 38, told Maclean’s. “We have a lot of things to address. David Milgaard is not an issue with us. The issue is the whole judicial procedure.” Miller’s father, Milton, died last year at 82. His mother, Jean, 69, still lives in Saskatoon, and a brother and five sisters five in Saskatchewan. Another brother lives in Alberta.

Wolch and Milgaard family members acknowledged that their most immediate con-

cern is Milgaard’s ability to deal with life outside prison. “David will have a hell of a time getting started again,” said his 62-year-old father, Lome, a mining-equipment salesman. “He is still not keen to take direction, and a lot of his thinking is still where he was as a teenager. He visited my office once when he was out on a pass and was amazed to find a fax machine.” His mother, Joyce, who has been separated from Lome Milgaard since 1976, added: “No doubt the system took its toll on David. Many horrible things happened to him inside. But he is a survivor. David has learned patience and understanding.”

In reviewing Milgaard’s case, the Supreme Court justices heard conflicting and contradictory evidence from the witnesses. One of the principal witnesses, Ronald Wilson, 40, a British Columbia sales representative for a tire company, admitted that he had lied during Milgaard’s trial. Another key witness at Milgaard’s trial, Nichol Demyen, told the high court that she could not remember anything about the day on which the murder occurred. And other witnesses gave contradictory accounts of a party in a Saskatoon motel room at which Milgaard allegedly re-enacted the crime.

Murder: The review was further complicated when Milgaard’s lawyers introduced fresh evidence to suggest that another man may have been responsible for Gail Miller’s rape and murder. Wolch and Asper told the Supreme Court that serial rapist Larry Fisher, 42, was convicted in 1971 of two sexual assaults in Winnipeg and four in Saskatoon. They also introduced evidence to show that three of the four Saskatoon assaults occurred in the neighborhood where Gail Miller lived and was murdered.

The assaults all occurred around the time of Miller’s death. Fisher, who is currently in prison in Agassiz, B.C., serving a 10-year sentence for a 1980 sexual assault, appeared at the Supreme Court hearing and denied murdering Miller. Fisher is scheduled for release from prison by May, 1994.

Despite those unresolved issues, Milgaard’s release was a personal triumph for his mother, who waged a relentless campaign to overturn his conviction (page 49). She said that she was always convinced of her son’s innocence, and she began working on his case almost full time in November, 1980. Milgaard said that she was afraid that her son would never be paroled. As she left Stony Mountain Institution last week, a beaming Joyce Milgaard declared: “I am so happy I am never going to see this place again as long as I live.”

Over the years, Milgaard’s mother attracted the support of Princeton, N.J.-based Centurion Ministries Inc., a privately funded charitable organization that works for the release of prisoners that it believes have been wrongly convicted (page 50). She travelled across Western Canada with Centurion’s Seattle-

based investigator, Paul Henderson. Together, they tracked down and interviewed witnesses with information that could help free her son.

Joyce Milgaard also turned for help to the respected Winnipeg law firm of Wolch Pinx Tapper Scurfield. In 1986, she put down a $2,000 retainer for the services of Wolch. Since then, Wolch and Asper, son of Winnipeg lawyer and communications czar Israel (Izzy) Asper, have devoted hundreds of hours to the case, and they estimate that they have contributed about $1 million worth of legal services free of charge. A small meeting room in the firm’s downtown Winnipeg offices used almost exclusively for work on the case came to be known as “the David Milgaard War Room.” Said Wolch: “It was the legal system that screwed them up, and we are part of that

system. So we felt some responsibility to help them.”

Victim: For all the unsettled issues, it is clear that Gail Olena Miller, the murder victim, met a particularly gruesome death on the frigid winter morning of Jan. 31,1969. The 20-yearold nursing assistant from Laura, Sask., a hamlet 60 km southwest of Saskatoon, worked in the pediatric ward of Saskatoon’s City Hospital. On the day of her death, Miller left her rooming house around 6:45 a.m. and began walking to a nearby bus stop. The temperature was -40° C, and it was dark. Less than two hours later, a child found her body in a back alley. Her stockings, garter belt and panties had been pulled down to her ankles. The top of her dress and her brassiere had been tom. She had been raped, and stabbed 15 times, five times in the back.

David Milgaard became a suspect when Saskatoon police learned that he and two friends had been passing through the city that morning and stopped their car near the murder

scene. At the time, Milgaard was a 16-year-old high-school dropout from Langenburg, Sask., a village 375 km southeast of Saskatoon. He had been convicted two years earlier of joyriding and spent a year as a ward of the province. Joyce Milgaard admits that her eldest child was rebellious, but she insists that he was never violent. Said Milgaard: “He was hyperactive as a kid. He got kicked out of school and got in fights. But David was never a vicious person. It’s not in his personality. He was a tease.”

Early on the morning of Jan. 31, 1969, Milgaard and two teenage friends, Wilson and Demyen, who then was known as Nichol John, left Regina for Saskatoon in Wilson’s battered 1958 Pontiac. They arrived at around 6:30 a.m. and stopped at the home of a friend, Albert Cadrain. Later that day, the four teenagers left for St. Albert, Alta., to visit one of Milgaard’s former girlfriends.

Help: In May, 1969, the RCMP arrested Milgaard in Prince George, B.C., where he was selling magazine subscriptions (Chatelaine, Maclean’s and others), and returned him to Saskatoon to face a charge of non-capital murder. At his two-week trial in January, 1970, the most damaging testimony came from his friends, Wilson, John and Cadrain. Wilson testified that his car had become stuck in the snow at about the time of the murder, and that he and Milgaard set off in different directions looking for help. The Crown argued that during the 15 to 20 minutes that the two men were separated, Milgaard raped and murdered Miller. John told the police that she saw Milgaard stabbing someone in an alley. The statement was entered as evidence. Wilson and Cadrain both told the court that Milgaard had blood on his clothing that morning.

Milgaard did not testify in his own defence, and during the Supreme Court review of his case earlier this year he said that he was stunned by the evidence of his friends. “They just stood there and lied,” Milgaard said. “I felt frustrated. I couldn’t jump up and say, ‘Stop. Tell the truth.’ With Ron [Wilson], it was just he after he after he.” The jury believed Wilson, and on Jan. 31, 1970, it convicted Milgaard.

Milgaard appealed the verdict, but in January, 1971, the Saskatchewan Court of Appeal declined to grant him a new trial. In November of that year, the Supreme Court of Canada also turned him down. In fact, after their recent review of the case, the five Supreme Court justices declared that Milgaard had received a fair trial, and that the trial judge had not made any errors in law.

Joyce Milgaard says that her son was a troublesome inmate throughout his long stay in the federal penitentiary system because of his frustration at being wrongly convicted. During Milgaard’s first 18 months in jail, prison officials recorded 31 institutional offences. They included refusing orders and threatening guards. He tried to commit suicide in 1971 by

jumping from a second-storey window, and tried a second time by slashing his wrists.

At one point, he swallowed copper wire in an attempt to obtain a transfer from Prince Albert Penitentiary in central Saskatchewan to Stony Mountain, to be closer to his family in Winnipeg. In 1976, he was transferred to Stony Mountain. Milgaard escaped on Aug. 22,1980, after being issued a day pass to attend a family barbecue in Winnipeg. During his 77 days of freedom, Milgaard got a job as an encyclopedia salesman in Toronto. He was captured after an unidentified informer tipped off the police. Throughout his years in prison, Milgaard has suffered severe bouts of depression, and now takes the drug lithium to stabilize his moods.

Fight: Milgaard’s conviction and imprisonment were also a traumatizing experience for his sisters, Susan, now 37 and an administrator with the Kentucky Fried Chicken restaurant chain, and Maureen, 29, a former Winnipeg waitress who, more recently, has devoted her time to helping her mother fight for Milgaard’s freedom. Susan, who was 14 at the time of her brother’s trial, recalls that a classmate heard a radio report that David had been convicted, and told her. “I didn’t believe it and burst into tears,” she said. “Growing up, he was my idol. I always wanted to be like him.” Maureen, who was only seven years old at the time, said that classmates taunted her after her brother’s conviction. “The kids would hit us and yell, ‘Your brother is a murderer,’ ” she said.

Milgaard’s long imprisonment drew him and his sister Maureen closer together. She said that after she was 16 and began visiting him regularly at Stony Mountain, he tried to experience the outside world through her. “He wanted to know everything,” she said. “What the sky looked like, how the sand felt on the beach, what it was like to be in love and how it felt the first time I had sex. He wanted every detail of the world.”

Crusade: Late in 1980, Milgaard’s mother launched what would become a crusade to win his freedom. She began by offering a $10,000 reward for any information that might help exonerate her son and distributed leaflets publicizing the reward throughout Saskatchewan. She and Winnipeg freelance journalist Peter Carlyle-Gordge studied the transcripts of Milgaard’s trial and eventually tracked down the key witnesses, Wilson, John and Cadrain, in the hope that they would shed new light on the events of Jan. 31, 1969. Reporters with The Globe and Mail pursued the story relentlessly. Finally, in 1986, Joyce Milgaard turned to Wolch for help. Two years later, in December, 1988, Wolch and Asper asked the federal justice department to review the case and order a new trial, based on the fresh evidence that they had submitted.

The Milgaards waited 26 months for a decision: in February, 1991, federal Justice Minister Kim Campbell announced that, after an exhaustive departmental review of the case, she would not intervene. Meanwhile, in February, 1990, Asper had received a tip from an anonymous telephone caller who breathed new life into the efforts to free Milgaard. The caller,

who identified himself only as “Bud,” told Asper to examine the crimes of convicted serial rapist Larry Fisher because he could be connected to the murder of Miller.

At that point, Centurion Ministries’ Henderson, 53, entered the case. The former journalist said that he began by interviewing Fisher’s ex-wife, Linda, in the village of Cando, Sask., 100 km northwest of Saskatoon. She told Henderson that for years she had believed that

Fisher might have been involved in the murder. Henderson then travelled across Western Canada re-interviewing some of the witnesses who had testified against Milgaard at his trial. He said that his most significant break arose when Wilson recanted most of his testimony.

In August, Wolch and Asper submitted a second application for a review of the Milgaard case to Campbell. The new application contained affidavits from witnesses at Milgaard’s trial, along with affidavits from Fisher’s rape victims. On Nov. 29, Campbell referred the Milgaard case to the Supreme Court.

Mystery: With Milgaard free, legal experts assessed the chances of winning any further victories over the justice system that he claims has wronged him. Brian Greenspan, the Toronto-based president of the Crimi_ nal Lawyers’ Association, cautioned

1 that Milgaard faces a difficult battle 2 for financial compensation. Because I the provincial justice minister has □ ruled out an inquiry, he said, Milgaard s and his lawyers can only sue the pro° vincial government. But, for a few

days at least, it was a time for David Milgaard simply to savor the delights of freedom. As he and lus family enjoyed a steak dinner in a Winnipeg restaurant, other diners sent bottles of champagne to their table. For the Millers, however, the nightmare of their daughter’s death was shrouded in even deeper mystery. For them, there can never be a victory.

D’ARCY JENISH

JOHN HOWSE

QUESTIONABLE JUSTICE

David Milgaard’s release after 23 years in prison for a murder that he claims he did not commit focused attention on other cases in which Canadians have been, or claim to be, wrongfully imprisoned. Among the most prominent:

DONALD MARSHALL: Convicted in 1971 of second-degree murder in the stabbing death of a friend in Sydney, Marshall, a Micmac Indian, served 11 years in prison before an investigation led to his acquittal by the Nova Scotia Court of Appeal in 1983. The real killer was subsequently convicted of manslaughter. A provincial royal commission concluded in 1990 that the justice system failed Marshall, and he was eventually granted a compensation package worth $1.5 million.

WILSON NEPOOSE: A Cree Indian, Nepoose was convicted in 1987 of brutally killing a woman near Ponoka, Alta. After a private investigator found new evidence,

Justice Minister Kim Campbell ordered a review last year. Nepoose was freed on bail and, in March, the Alberta Court of Appeal ruled that he was entitled to a new trial. The province has so far failed to schedule the trial, and Nepoose and his supporters are demanding an inquiry into his original conviction.

ROBERT SYLIBOY: In 1988, Syliboy and a companion were convicted of killing Toronto businessman George Salmoni in Sussex, N.B., 70 km southwest of Moncton. Syliboy, like Marshall a Micmac Indian, has always maintained that he is innocent. Although two key witnesses have recanted their testimony against Syliboy since the trial, the New Brunswick Court of Appeal and the Supreme Court of Canada have rejected requests for a review of his case. Still in prison, Syliboy awaits a response from Justice Minister Kim Campbell to a request for a review of his case.