David Milgaard
I spent 23 years in prison for a crime I did not commit. The Association in Defence of the Wrongly Convicted (AIDWYC) [now Innocence Canada] helped exonerate me. AIDWYC needs your help to free other innocent people.
– David Milgaard (Wrongly convicted of rape and murder)
Introduction
On January 31, 1969, sixteen-year-old David Milgaard and his friends Ron Wilson and Nichol John decided to go on a road trip from Regina to Vancouver. Not unlike other youth at that time, they were occasional users of hallucinogenic drugs. They left Regina shortly after midnight, planning to pick up another of David’s friends, Albert Cadrain, in Saskatoon. The group arrived at Albert’s house around 9 a.m. the next morning; later that day, they all set out for Calgary.[1]
Unbeknownst to anyone in the group, however, the man who rented Albert’s basement apartment – Larry Fisher – was a serial rapist who had just sexually assaulted and murdered Gail Miller, a nurse who had been on her way to work. The police launched a thorough investigation, but were unable to find any suspects. In fact, they investigated over 160 possible suspects without finding any helpful leads.[2]
On March 2, 1969, Albert Cadrain – who had returned from the road trip – contacted Saskatoon Police to inform them that his friend David had been behaving suspiciously on the morning of Gail’s murder. He claimed to remember seeing blood on David’s clothes, which led him to suspect his friend of committing an unthinkable crime. Many years later, it emerged that Albert was in fact a police informant, who received a $2,000 reward for providing this “evidence.”[3]
Over the following weeks, the police conducted interviews with David and several of his friends and acquaintances. Ron and Nichol initially told police that David had been with them throughout that morning, which meant that he had an alibi for the crime. However, police did not believe that the youths were being truthful, so they kept bringing them back for additional interviews.[4]
Ron and Nichol eventually changed their stories: during a lengthy interrogation that included a polygraph test, Ron informed police that David actually had told him things that implicated his friend in Gail’s murder. Nichol went even further: she suddenly remembered actually seeing the murder. Over the course of the police investigation, both young people had changed their views completely.[5]
On May 30, 1969, David was arrested and charged with the rape and murder of Gail Miller – a crime that had been committed by serial rapist Larry Fisher, who was not yet known to police.[6]
David’s Trial and Appeals
Things looked bleak for David at his trial. He knew he was innocent, but the prosecution was using his former friends’ testimony against him. Although Nichol refused to say on the stand that she had seen David stab Gail – which, of course, she had not – the prosecutor was still able to read her statement to the jury. If the jury members believed that Nichol had seen this crime in progress, then of course they would have to find David guilty.[7]
Making David’s situation even worse, a damning story emerged at trial that, at a party back in May 1969, fellow attendees had started teasing David about being a murder suspect. Some of these young people claimed that a very high David responded by dramatically reenacting his supposed crime, stabbing a pillow and saying something to the effect that he had killed Gail. David has no memory of such an event. Years later, it would become crystal clear that if this incident did in fact occur, then David’s behavior was just a terrible joke in terrible taste – the kind of thing that today’s young people might be horrified to find, the next morning, immortalized on a friend’s Facebook. But the incident fit perfectly into the police theory that David really had committed this crime.[8]
On January 31, 1970 – exactly one year after Gail’s death – the jury found David guilty of her rape and murder. Knowing he was innocent, David tried to convince the higher courts of this fact. On January 5, 1971, his appeal to the Saskatchewan Court of Appeal was dismissed, and on November 15 of that year, the Supreme Court of Canada refused him leave to appeal.[9]
David and Joyce’s Quest for Justice
David spent 23 years in prison – almost a quarter-century – for a crime that he did not commit. In addition to the massive injustice that David had suffered, he was subjected to physical and sexual assault in prison, leading to several suicide attempts. David managed to escape for 77 days in 1980, before being shot and recaptured by the RCMP.[10]
Enmeshed in a truly desperate situation and seemingly out of options, David and his mother, Joyce, refused to give up the fight. Joyce devoted her life to securing justice for her son, launching her own investigation, telling David’s story to the media, and spending all her savings in a multi-year quest to bring the truth to light.[11]
Meanwhile, Larry Fisher – the real culprit – had been arrested in September 1970, while committing yet another sexual assault. On December 21, 1971, Fisher pled guilty to four sexual assaults and was incarcerated. He was released from prison in 1980 – while David was still languishing for one of Fisher’s crimes – and promptly returned to his disturbing pattern of violence against women. On June 11, 1981, Fisher was convicted of rape, as well as attempted murder.[12]
By this time, police already had reason to suspect that Fisher – not David – had murdered Gail. On August 28, 1980, Fisher’s ex-wife, Linda, had gone to the Saskatoon police station and explained that she thought that Larry might have killed Gail Miller. She said that she had been arguing with Fisher on the day of Gail’s murder, when a news story began on the radio about this crime. She angrily accused him of committing the murder – and noticed his shocked reaction. She also noticed that they were missing a paring knife from the kitchen. Although the Inspector who met with Linda found her to be credible, police never followed up on this report, even though it suggested that the wrong person might be in jail.[13]
While police failed to pursue this possible lead, Joyce continued her own investigations. In March of 1983, she learned that at the time of Gail’s murder, convicted rapist and attempted murderer Larry Fisher had been living in Albert Cadrain’s basement. Cadrain, it should be recalled, was at one point David’s friend and later a police informant. This revelation was the first step in a long journey that ultimately led to the long overdue conviction of the true culprit.[14]
On December 28, 1988, David applied to the Minster of Justice for a review of his conviction, but the Minister dismissed the application. David immediately tried again, filing a second application on August 14, 1991, arguing that Fisher had killed Gail. This time, as public pressure mounted in light of many media reports about David’s wrongful conviction, the Minister asked the Supreme Court of Canada to give an opinion about what should happen next in David’s case. On April 14, 1992, the Court concluded that David’s conviction should be quashed and a new trial ordered. After 23 years in prison, David was finally a free man.[15]
David’s battle for justice, however, was not over. The Crown had decided not to re-try him, entering a “stay of proceedings” instead – meaning that although David was finally freed from prison, he had not yet cleared his name.[16]
David’s Exoneration
David and Joyce continued the fight to clear his name for another five long years. In this battle, and with help from the Innocence Canada (formerly AIDWYC), they were able to enlist forensic scientific techniques that had not been available at earlier stages of the process. On July 18, 1997, DNA testing results confirmed that the semen found in Gail’s clothing could not possibly have been David’s. Rather, it was Larry Fisher’s.[17]
David now had conclusive proof that he was innocent. The Saskatchewan government has since provided $10 million of compensation to David and his family for their horrific, decades-long ordeal. Fisher, meanwhile, was at long last convicted of the rape and murder of Gail Miller, on November 22, 1999.[18]
Causes of David’s Wrongful Conviction: Improper Questioning of Witnesses
On February 18, 2004, the Government of Saskatchewan ordered a public inquiry into the causes of David’s wrongful conviction. In his final report, the Commissioner of this inquiry, The Honourable Edward MacCallum, identified a number of factors that contributed to this horrific miscarriage of justice.[19]
The first and most crucial of these factors was the intensive questioning of David’s two young friends, Ron and Nichol, by a polygrapher working with Saskatoon Police. As Commissioner MacCallum put it, “but for the questioning” of these two youths “by polygrapher Roberts, David Milgaard would not have been charged and tried for the crime of murder.” During this interview, Ron and Nichol changed their story from the original and true version, in which they were with David throughout the morning of Gail’s murder, to an incriminating version that led to David’s being arrest and ultimate conviction.[20]
Many years later, Ron explained how he and Nichol ended up falsely incriminating his friend. By the time that he made this false statement, he had been in police custody for two days – which also meant that he was coming down from his habitual high. At that time, Ron was a heavy user of several drugs. During his polygraph session, it dawned on Ron that he could end the interview and return to his normal life by changing his answers to match what police wanted to hear: “It got to the point where I didn’t care. I’d gone a couple of days without any drugs and it was starting to hurt.” So, when he was briefly placed in the same room as Nichol, he encouraged her to give the police “what they wanted” and “sink” their friend David. For many years after making this decision, Ron felt haunted by what he had done. He eventually apologized to David for his part in what came next.[21]
The combination of pressure from the police and encouragement from her friend Ron seemed to have an even more powerful effect on Nichol, who would later describe not only recalling but having flashbacks to a crime scene that was not real.[22] Commissioner MacCallum described the tactics that produced Nichol’s most dramatic statement as follows:
In her statement of May 24, 1969, [Nichol] John said that she saw Milgaard stab a woman. …[T]hat cannot be true. 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. We know, however, that Roberts interrogated her in the belief that Milgaard was the killer, and that he showed her the victim’s bloody garment, asking what if this had been your sister? The tactic produced the desired result…. I … must conclude that he somehow pressured [Nichol] John into telling him what he thought to be the truth.[23]
In his attempt to elicit what he believed to be the real story from these two young people, the polygrapher actually induced them to fabricate a narrative that would put David in jail while ensuring that the real criminal would not be brought to justice for over two decades.
Commissioner MacCallum noted in his final report that the Saskatoon Police ought to have “recognized … the vulnerability of the young witnesses” who were caught up in this process. In order to avoid eliciting false testimony, police must remember that “young witnesses and young accused should be handled with great care.” Further, “an extra person should be present when taking a statement from a young person, and video or audio recording is needed.”[24]
Other Causes of David’s Wrongful Conviction
Commissioner MacCallum criticized the police failure to investigate Linda Fisher’s report that Larry might have murdered Gail. Although her report was “received, filed, referred, and possibly evaluated on a cursory basis … it went no further. It should have.” It is possible that Linda’s report was not pursued because she had arrived at 4:00 a.m. and had been drinking. Despite her unconventional presentation, however, Linda was right.[25]
In order to prevent future mistakes of this kind, Commissioner MacCallum recommended that “mandatory channels of reference should be put in place” for following up this type of complaint. In order words, police should be required to find out whether there is truth to allegations like Linda’s – eliminating the danger that subjective character judgments might stymie an investigation.[26]
Finally, it is important to note that David’s name was only cleared once DNA testing had proved that Fisher was the real murderer. This technology was not available when David first went to trial. As scientific knowledge and forensic techniques continue to advance, more people like David have been or will continue to be exonerated.[27]
Wounds that Innocence Canada Cannot Heal
David spent 23 years in prison, where he suffered physical abuse, sexual assault, a near-fatal gunshot wound (during his eminently understandable escape attempt), and psychological scars that will never heal.[28] In 1995 – only a few years after his release from prison – David gave a poignant interview about his experiences there and subsequent adjustment to life in the outside world. In this interview, David made the following comments:
I’ll never forget being a prisoner. In my own way I still consider myself a prisoner. My situation is such that I am never going to forget it. I would like to do more to help prisoners, because I remember what it was like sitting inside a penitentiary. You die a little bit each day you spend in a penitentiary.[29]
Coping with being free after 22 years is hard. When I first came out I was a bit lost. Everything seemed so much faster, everybody was bouncing around. People seemed so busy. People didn’t seem to find time to just be kind of quiet, to take it easy. And I still find it like that, but I do take the time. Sometimes I just go camping and fishing or swimming and find my own time and pace. I hope that as time goes on I’ll feel a bit more comfortable.[30]
We hope that David has been able to find some measure of the peace that he so richly deserves.
[1] Honourable Mr. Justice Edward P. MacCallum, Commissioner. “Chapter 2: Chronology of Persons and Events Referenced in Report,” p. 12, Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard. February 18, 2004, available at http://www.justice.gov.sk.ca/milgaard/DMfinal.shtml [“Chronology”] see also “Chapter 3: Overview of Facts,” pp. 41, 92 [“Overview”].
[2] “Chronology,” supra note 1 at p. 15; “Overview,” supra note 1 at pp. 36, 38-40, 213.
[3] “Chronology,” supra note 1 at p. 12; “Overview,” supra note 1 at p. 39; Betty Ann Adam, The Star Phoenix, “Cadrain Given $2,000 Reward.” June 15, 2005, available at “Commission of Inquiry into the Wrongful Conviction of David Milgaard, page 12,” Injustice Busters: http://injusticebusters.org/05Milgaard/MilgaardD12.shtml.
[4] “Chronology,” supra note 1 at pp. 12-13.
[5] Ibid; “Overview,” supra note 1 at 48-49, 56; “Chapter 4: Executive Summary,” Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard (see note 1) at pp. 298-99 [“Summary”].
[6] “Chronology,” supra note 1 at pp. 13, 19.
[7] “Overview,” supra note 1 at pp. 56-58, 88.
[8] “Chronology,” supra note 1 at pp. 13, 15; “Overview,” supra note 1 at pp. 80-81; Betty Ann Adam, The Star Phoenix: “Supposed Confession Sarcastic, Inquiry Hears – Milgaard’s Actions ‘Twisted’ by Others: Woman’s Testimony.” February 18, 2005, available at “Commission of Inquiry into the Wrongful Conviction of David Milgaard, page 4,” Injustice Busters: http://injusticebusters.org/05Milgaard/Milgaard4.shtml.
[9] “Chronology,” supra note 1 at p. 14.
[10] Ibid at p. 15; “Overview,” supra note 1 at p. 105; CBC Newsworld: “Milgaard Will Get $10 Million”; Anne Bayin, CBC News Online: “A Canadian Tragedy,” available at Truth In Justice: http://truthinjustice.org/canadian_tragedy.html [“Tragedy”]; May 17, 1999, available at “David Milgaard Settlement,” Injustice Busters: http://injusticebusters.org/index.htm/Milgaardsett.htm.
[11] “An Interview with David Milgaard” (2005) 6 Journal of Prisoners on Prisons, Formatted Online Version (2006) at p. 4.
[12] “Chronology,” supra note 1 at pp. 14-15.
[13] Ibid at p. 15; “Overview,” supra note 1 at pp. 104-105; “Summary,” supra note 5 at p. 319.
[14] “Chronology,” supra note 1 at p. 15.
[15] Ibid at p.18; “Overview,” supra note 1 at pp. 215-220.
[16] “Chronology,” supra note 1 at p. 18.
[17] Ibid at p. 19.
[18] Ibid.
[19] Ibid; “Introduction,” Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard (see note 1) at p. 4.
[20] “Overview,” supra note 1 at 48-49, 56; “Summary,” supra note 5 at pp. 298-99, 303.
[21] Betty Ann Adam, The Star Phoenix: “Police Fed Murder Details to Milgaard Friend: Travelling Companion Tells Inquiry He Just Agreed with Officer’s Statements.” March 18, 2005, available at available at “Commission of Inquiry into the Wrongful Conviction of David Milgaard, page six,” Injustice Busters: http://injusticebusters.org/05Milgaard/Milgaard6.shtml; Betty Ann Adam, The Star Phoenix: “Wilson Haunted by Lies for Decades.” March 23, 2005, accessible at above url.
[22] “Overview,” supra note 1 at p. 142.
[23] “Summary,” supra note 5 at p. 303.
[24] Ibid at p. 318.
[25] Ibid at p. 305; “Overview,” supra note 1 at p. 104.
[26] “Summary,” supra note 5 at p. 319.
[27] “Overview,” supra note 1 at pp. 296-197, 303.
[28] “Tragedy,” supra note 10.
[29] “Interview,” supra note 11 at p. 1.
[30] Ibid at p. 2.
