made by other inquiries including, most recently, the 2008 Commission of Inquiry into the Wrongful Conviction of David Milgaard.
These recommendations call for an independent agency modelled after Britain’s Criminal Cases Review Commission, which was created in 1997 to investigate suspected cases of wrongful convictions or unfair sentencing, sending those with merit to the courts. The staff of approximately 100 (compared to about six in Canada’s CCRG) is accountable only to the commission’s eleven commissioners. The organization receives about 1,000 applications to review each year and refers about 4 percent to appeal courts. About two thirds of those referred to the courts have led to quashed convictions. As of December 31, 2010, this process had resulted in 309 overturned convictions.
Once an exoneration has been won in Canada, compensation for a wrongful conviction doesn’t always immediately follow. Marshall’s case marked the first time that a Canadian was exonerated for a murder after serving a lengthy prison sentence. The idea that the justice system had made a mistake seemed inconceivable to lawmakers. Marshall fought for more than eleven years to clear his name — and another seven for compensation. When Marshall began fighting for compensation in the early 1980s, there was no precedent for awarding compensation in the case of wrongful convictions. A federal-provincial agreement was signed in 1988 that defined the circumstances under which someone can be compensated. Although the federal and provincial governments share the costs, it’s left up to provincial governments to decide whether or not to award compensation and how much. A prerequisite for receiving compensation is known as “factual innocence”: irrefutable proof that the person is innocent. An acquittal isn’t enough, as was the case for Michel Dumont, who was acquitted of sexual assault when the victim recanted. He filed a civil suit, which entailed another lengthy battle. As Joyce Milgaard, David Milgaard’s mother, said at a news conference in 2005, “After the first injustice for a crime he did not commit, Michel is now faced with the second injustice of having to face another trial to obtain compensation.”[7] He was not the first to file a civil suit, and he likely won’t be the last.
The indisputable truth is that people in the justice system will make mistakes. We need to accept that mistakes have been and will continue to be made. While a person who is accused of a crime is held accountable, the question remains: Who should be accountable when wrongful convictions occur? Is it enough to admonish police, prosecutors, pathologists, forensics experts, and judges who contribute to a wrongful conviction? Should prosecutors be disbarred for misconduct? Should pathologists lose their licenses or be suspended? Is there a better way to hold them accountable? It is difficult to win civil suits against those responsible for the wrongful conviction. Just how much protection should they have from decisions that lead to wrongful convictions?
Victims want someone to stand up and say they’re sorry for what was done to them. All too often, the apologies are a long time in coming. If the justice system makes mistakes, we also need to spot them quickly, own up to and correct them. We owe it to the men and women who have been falsely convicted and languish for years behind bars waiting for justice. We also owe it to the victims of criminal acts and their families, who are re-victimized by knowing that the real perpetrator continues to go free.
Notes
1. Kirk Makin. “The Lawyer Who Has ‘A Cause For A Client’” The Globe and Mail, May 12, 1999.
2. Kirk Makin. “The Innocence Industry.” The Globe and Mail, July 7, 2001.
3. “Freed Man Worried About Fate Outside Jail.” The Ottawa Citizen, December 14, 1985, final edition.
4. Jane Orydzuk. “CBC Betrays Family of Slaying Victim.” Edmonton Journal, October 20, 1999, final edition.
5. Deborah Wilson. “N.S. Justice System Undermined by Old-Boys’ Network, Judge Says.” The Globe and Mail, May 18, 1988.
6. Kirk Makin. “ Judicial Accountability Urged in Wrongful-Conviction Cases.” The Globe and Mail, June 13, 2005.
7. Ann Carroll. “Quebec Justice Proves Elusive for Wrongfully Convicted Man.” The Gazette. May 11, 2005, final edition.
PART I
Police Investigation: Making the Case
Chapter One
Unreliable Witnesses: The David Milgaard Case
In September 1968, twenty-year-old Gail Miller had just moved to Saskatoon, a city of 129,000 people, to take a job at City Hospital as a nursing assistant. On January 31, 1969 at 6:45 a.m., less than five months after she arrived, she left the boarding house where she was living in a working-class neighbourhood and headed to the bus stop. At about 8:30 a.m., Miller’s body was found in an alley a block from her home. She was lying face down in the snow, the top of her nurse’s uniform rolled down to her waist. She had been sexually assaulted and fatally stabbed more than a dozen times. Her bloodstained underwear, girdle, and stockings were near her left ankle. Her right boot and sweater were buried in the snow close by. The blade from a broken paring knife was found under her body, the maroon handle was discovered in a nearby yard. A few days later her purse was found in a nearby garbage can. Its contents had been scattered in backyards close to where her body was found.
Miller’s murder came on the heels of three sexual assaults in the previous three months, all within ten blocks of where her body was found. On October 21 and November 13, 1968, a knife-wielding assailant grabbed the victims in early evening, took them to a nearby alley and ordered them to undress. The women weren’t robbed or killed, but the circumstances surrounding the assaults were similar to Miller’s rape and murder. The assailant in a November 28 attack was interrupted when a car came by. He fled before he could sexually assault his victim.
The Saskatoon Police arrived at the scene of Miller’s murder after a schoolboy found her body. Murders were an unusual occurrence in the Prairie city. Police officers Lieutenant Joe Penkala and Thor Kliev of the Identification Division watched as Dr. Harry Emson, pathologist at St. Paul’s Hospital, performed an autopsy on Miller’s body. Dr. Emson noted that Miller had been slashed repeatedly in the throat and had stab wounds to her upper torso. She died from a stab wound to the lung. There was also semen in her vagina. He gave police samples of Miller’s hair, pubic hair, blood, and clothing. The vaginal fluid that was removed was tested but not kept.
When Penkala returned to the scene of the crime on February 4, 1969, he found two frozen lumps in the snow. The Royal Canadian Mounted Police lab examined the lumps and other items the Saskatoon Police found near Gail Miller’s body. In one of the frozen lumps, RCMP Staff Sgt. Bruce Paynter found pubic hair and semen containing A antigens. This suggested the donor had blood type A and secreted antigens into his bodily fluids. He also found human semen stains on Miller’s underwear.
Police detective-sergeants Raymond Mackie and George Reid led the investigation into Gail Miller’s murder, which involved more than 100 police officers. They concluded that the knife found underneath Miller’s body was the murder weapon, but they couldn’t find any useable fingerprints on it. Police canvassed the neighbourhood for about a six-block radius to find out if anyone had seen anything unusual the morning that Miller was killed. The police interviewed her roommates, family, friends, and co-workers in an effort to find possible suspects and a motive. The city’s drycleaners were contacted to see if anyone had brought in bloodied clothes. They also investigated the many tips and leads they received, but none yielded any useful information.
The Saskatoon Police suspected that one man was responsible for all three sexual assaults and Miller’s murder. They investigated known sex
