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 offenders as potential suspects. Police had investigated and eliminated more than 160 possible suspects by the time Albert Cadrain went to the Saskatoon Police on March 2, 1969. He told them he believed that his friend David Milgaard had murdered Miller. Sixteen-year-old Milgaard was a shaggy-haired hippie who had dropped out of school and was caught up in the free-spirited era of the sixties and experimenting with drugs. He had left Regina at midnight on Thursday January 30, 1969, with friends Ronald Wilson and Nichol John. They were driving Wilson’s beat-up 1958 Pontiac to Saskatoon to pick up Cadrain before heading to Vancouver.
Milgaard, Wilson, and John arrived in Saskatoon at about 6:30 a.m. on January 31, 1969. Milgaard was the only one who had been to Cadrain’s house, but he didn’t have the address. All he could remember was that it was near St. Mary’s Church, which, as it turned out, was halfway between Cadrain’s and Miller’s houses and half a block from where Miller’s body was found two hours later. The trio stopped to ask a woman for directions, but she was unable to help. As they continued driving, the car got stuck in the snow. They couldn’t dislodge it, so John stayed with the car while Wilson and Milgaard went in opposite directions looking for help. When they returned, two men in a cream-coloured car helped push them out. Sometime between 7:00 a.m. and 7:30 a.m. Wilson, Milgaard, and John drove to the Trav-A-Leer Motel and asked the front desk manager, Robert Rasmussen, for directions. On their way to Cadrain’s, the Pontiac got stuck again, this time in an alley behind Sandra Danchuk’s vehicle. They waited with the Danchuks in their house for a tow truck between 7:30 a.m. and 7:50 a.m.