While Milgaard waited for his appeals to run their course, he became depressed and attempted suicide. In March 1972, he was transferred to the notorious maximum-security Dorchester Penitentiary in New Brunswick, far from his family. He and two other prisoners escaped in 1973, but were caught as they fled through the woods when tracking dogs picked up their scent. He was sent to Stony Mountain Institution outside Winnipeg three years later, closer to his family. Prison officials felt that he needed to take responsibility for Gail Miller’s murder in order to be considered rehabilitated. Since he continued to maintain his innocence, and refused to admit to a murder he didn’t commit, he was repeatedly denied parole. As difficult as it was to be behind bars, Milgaard wasn’t ready to trade his innocence for his freedom.
Milgaard went to visit his family on a temporary pass on August 22, 1980. Amid the excitement of a family barbecue to celebrate his brother’s birthday, he escaped to Toronto. Under an assumed name, he found an apartment and a job. But his freedom was short-lived. His photo appeared in newspapers and he was described as a dangerous killer on the loose. Someone tipped off police. Milgaard was walking down the street in Toronto’s Parkdale neighbourhood on November 8, 1980, when he spotted two burly men who looked like police officers. On his seventy-seventh day of freedom, the RCMP shot him in the back. As Joyce Milgaard sat with her son, handcuffed to his bed in St. Joseph’s Hospital, she knew she needed to take action.
Joyce Milgaard issued a news release in December 1980 offering a $10,000 reward for information that would prove David’s innocence. She bought court transcripts and, with her family, pored over them looking for holes in the Crown’s case. Supporters began to rally around her. In 1986, Joyce Milgaard gave well-known criminal lawyer Hersh Wolch her last $2,000 to review the court transcripts to look for grounds to apply to the federal justice minister for “the mercy of the Crown” under what was then Section 617 (now Section 696.1) of the Criminal Code. This provision gave the minister the sole discretion to order a new trial or give Milgaard another chance to appeal his conviction to the Saskatchewan Court of Appeal. Finding enough compelling evidence to prove Milgaard’s innocence and persuade the minister to overturn Milgaard’s conviction proved to be an overwhelming task. No organization or agency existed to help the Milgaards gather the information they needed, and Legal Aid in Manitoba and Saskatchewan refused to fund lawyers and investigators. Wolch passed the file to David Asper, who had recently graduated from law school and was working at his firm.
Serendipitously, the Milgaards located Deborah Hall. She had attended the motel party at which David allegedly re-enacted Miller’s murder. But police hadn’t questioned her about the incident. She told them that she didn’t remember Milgaard making a confession. If he had, “It would have freaked me right out,” she said.[2] Hall said that any references he did make at the time about the murder were jokes. DNA testing and its application to criminal cases was just beginning to emerge. The Milgaards tracked down Vancouver forensic pathologist Dr. James Ferris. The field of DNA testing was not sufficiently advanced for him to help, but he did point out that the semen samples referred to during her son’s trial were collected four days after the murder. This meant they were very likely contaminated after being trampled. He also concluded, as had argued Milgaard’s trial lawyer, that serological evidence failed to link Milgaard to Miller’s murder.
On December 28, 1988, nearly nineteen years after Milgaard was convicted, his lawyers applied to have the federal justice minister reopen his case. It was based on an affidavit from Hall and Ferris’s report. While awaiting a response, Joyce Milgaard went to a Winnipeg hotel on May 14, 1990, and tried to hand federal Justice Minister Kim Campbell a copy of Ferris’s report. As television cameras rolled, Campbell brushed past Joyce Milgaard. She said that seeing the report could jeopardize a review of the case. “I’m sorry, but if you want your son to have a fair hearing, don’t approach me personally,” Campbell said. The Milgaards were stunned. Joyce also enlisted the help of Paul Henderson, an investigator with Centurion Ministries. The American organization works to free people who have been wrongly convicted. Henderson tracked down Ron Wilson in British Columbia. Wilson recanted his testimony implicating Milgaard. He admitted that under repeated police questioning, he’ d wanted out, so he had finally told the police what they wanted to hear.
On February 27, 1991, Campbell turned down Milgaard’s request to reopen his case. The forensic report presented in the application was deemed to be similar to the argument that Milgaard’s lawyer had made at trial. Wilson’s recanted testimony was considered unreliable and Hall’s story didn’t alter what had occurred in the Regina motel room. Campbell felt there was no new evidence that would justify referring Milgaard’s case back to the courts. His application for parole was refused yet again the following month. He had now spent nearly twenty-two years behind bars.
While the federal justice department was reviewing Milgaard’s application, his lawyer, Hersh Wolch, received an anonymous phone call on February 26, 1990. The caller said that Larry Fisher was Miller’s killer. The RCMP subsequently investigated Fisher but could find no physical evidence, confession, or witness that would give them reason to charge him with murder. The description of Linda Fisher’s missing paring knife did not look like the one that had been used in Miller’s killing. Nonetheless, this opened up a new avenue for Milgaard’s lawyers to explore. They submitted a second application to the justice minister on August 16, 1991. It focused on Larry Fisher as the perpetrator of the string of sexual assaults in Gail Miller’s neighbourhood prior to and immediately after her murder. It suggested that this information would have been admissible in David Milgaard’s trial if the information had been known and available at that time. Miller’s family joined Milgaard’s in calling for a fresh look at the case.
Milgaard’s supporters used a media campaign to gain public support for a review of his case. Since authorities didn’t seem to be listening, they hoped that public support for his pleas of innocence would get attention for his case and influence the justice minister. On September 7, 1991, they held a candlelight vigil outside a Winnipeg hotel where Prime Minister Brian Mulroney was expected. The group lit one candle for each of the twenty-two years that Milgaard had spent behind bars. When Mulroney stepped out of his car, he greeted Joyce Milgaard and spoke with her briefly. She told him that her son’s emotional state was deteriorating and asked if the prime minister might help get him transferred from Stony Mountain. She also asked if a speedy review of his case was possible. Mulroney told her she was courageous. A month later, David Milgaard was transferred to Rockwood Institution, a minimum-security prison beside Stony Mountain.
The justice minister referred Milgaard’s case to the Supreme Court of Canada on November 28, 1991. This time, Milgaard testified during the hearings. Ron Wilson recanted part of his trial testimony and Milgaard’s lawyers presented the pattern of assaults committed by Larry Fisher. On April 14, 1992, the Supreme Court of Canada, citing Wilson’s partial recanting of his trial testimony and the string of sexual assaults committed by Larry Fisher, recommended that Milgaard’s conviction be overturned and a new trial be ordered. The Supreme Court justices believed that the evidence could have affected the verdict at Milgaard’s trial had it been available at the time. They also ordered that he be released. Two days later, the Saskatchewan government announced that it wouldn’t retry Milgaard.
When Milgaard emerged from prison after twenty-three years behind bars, his lawyers were waiting for him in the parking lot. Wolch and Asper handed him a special birth certificate with his new birth date: April 16, 1992. Milgaard, who was just shy of his seventeenth birthday when he was arrested, was now thirty-nine years old. But he hadn’t been acquitted nor exonerated for the murder. The Saskatchewan government’s attorney general said there would be no commission of inquiry nor would Milgaard receive compensation because his innocence had not been established by the Supreme Court of Canada. At