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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. The Danchuks didn’t see anything unusual about Milgaard or any blood on his clothes.

It was about 9:00 a.m. when the trio arrived at Cadrain’s house. The crotch of Milgaard’s pants had gotten ripped and they had holes from where battery acid had spilled. He and Wilson changed their clothes. Then Milgaard drove around the block by himself a couple of times. The car stalled again beside Cadrain’s house. Milgaard, Wilson, John, and Cadrain left Saskatoon for Edmonton later that day, once the car was repaired. While they were driving along the highway, John pulled a woman’s compact from the glove box of the car and asked to whom it belonged. Milgaard grabbed it and tossed it out the window. Milgaard later admitted that he had no idea where the bag came from or why he threw it out.

The group returned to Regina on February 6, 1969, when Wilson found out that his father was ill. The Regina Police picked up Cadrain the same day and charged him with vagrancy. When they learned that he lived in the same Saskatoon neighbourhood where Miller had been killed, and that he had left town that day, they asked him about the murder. He said he hadn’t heard about it. Cadrain learned the details of Miller’s death when he arrived home in Saskatoon on March 1, 1969, and his family told him about it. The police had no leads, but they were under pressure to solve the case and had posted a reward for information leading to the nursing assistant’s killer.

Cadrain went to the Saskatoon Police the next day. That is when he first claimed that he saw blood on Milgaard’s pants on January 31 and that his friend seemed to be in a hurry to leave town. Lieutenant Charles Short and Detective Eddie Karst questioned him and took his statement. During the two-hour interrogation, Cadrain told police that, on the day of the murder, Milgaard arrived unexpectedly at his house at about 9:05 a.m. and said they had to “leave town right away.” Cadrain told them that he saw blood on Milgaard’s shirt and pants before Milgaard changed his clothes and took Wilson’s car for a drive by himself. He also claimed Milgaard talked a lot about cleaning the car and that others in the car seemed to be afraid of him.

On March 3, Karst questioned Milgaard. He told the teenager that he was a suspect in Miller’s murder. Then he asked Milgaard to account for his whereabouts on January 31, 1969. Milgaard talked about stopping a woman in the street and going to a motel to get directions, getting stuck in an alley, and changing his clothes because of the battery acid on them. But he couldn’t remember at what time various activities happened. He was cooperative but vague. He didn’t know where his clothes were and they didn’t turn up during a police search. There were no marks or scratches on his body consistent with what one might expect to find after a recent struggle.

Milgaard also told police that he drove Wilson’s car around the block after reaching Cadrain’s house. “I like to drive I guess,” he replied when he was asked why he would do that after the car had just stalled. He explained that the reason he had been in a hurry to leave town was because he was excited about seeing his girlfriend in Edmonton. He admitted that he had taken drugs during the road trip, had received psychiatric treatment in Yorkton when he was thirteen years old, and that he tended to make impulsive decisions. He wasn’t sure if he had been alone at any time the morning of Miller’s murder. Karst asked Milgaard if he had a criminal record. He admitted that he had convictions for sexual immorality, trafficking, stolen cars, break and enter, escaping lawful custody, and that he had been deported from the United States.

Although Milgaard had not been convicted of a violent crime, Karst’s interest in him as a suspect in Miller’s murder grew. The teenager was in the vicinity at the time of the killing, he was driving in back alleys that morning, was at the Cadrain residence a block from where Miller’s body was found, he and his companions were under the influence of drugs, he had a criminal record, and Milgaard tried to clean Wilson’s car while it was being repaired. There also appeared to be gaps of time that were unaccounted for or that were vague. Milgaard denied there was blood on his clothing, but police couldn’t find the clothes in question to either prove or disprove that statement.

While Milgaard was being interviewed by Karst, Wilson was being questioned by RCMP Inspector J.A.B. Riddell. Wilson said that he, Milgaard, and John arrived in Saskatoon between 5:00 a.m. and 6:00 a.m. They were driving around looking for Cadrain’s house when their car stalled and became stuck in an alley. After getting a boost to restart their vehicle, they found their way to Cadrain’s house. Wilson said that after they arrived, Milgaard changed his pants because of spilled battery acid and drove the car around the block. In his police statement, Wilson said that Milgaard was never out of his sight for more than a few minutes, except when he drove Wilson’s car around the block. He wasn’t aware of Milgaard owning a knife. Police searched Wilson’s car but didn’t find anything of interest nor did they see any bloodstains or find Milgaard’s clothes.

Nichol John was questioned more than a week later, on March 11. She told police that she arrived in Saskatoon with Wilson and Milgaard between 6:30 a.m. and 7:30 a.m. They drove around looking for Cadrain’s house, stopped at a motel for a map and directions, got stuck in an alley, and then reached Cadrain’s home after daylight. Wilson changed his clothes because of spilled battery acid on them, while Milgaard put on a fresh pair of pants after the crotch of his other pants ripped. John didn’t see any blood on their clothing. She said the car broke down after Milgaard drove it around the block, but he and Wilson were never out of her sight for more than a minute or two.

Wilson and John, who were travelling with Milgaard at the time of Gail Miller’s murder, both told police their friend had no opportunity to commit the crime. Cadrain, whom they met up with later, was the only one to suggest that Milgaard was involved. Nonetheless, this didn’t allay the Saskatoon Police’s suspicions. A week later, on March 18, Karst and Short took Cadrain with them to Regina to conduct another interview with Wilson and John. They interviewed John and Cadrain together this time. John’s story began to change. She told police that she was afraid of Milgaard and believed he was dangerous. She also said that he had forced her to have sex several times. Saskatoon Police also interviewed Milgaard’s one-time girlfriend Sharon Williams in St. Albert. She had no information about the murder, but she provided an unflattering portrait of Milgaard. She talked of his criminal behaviour and his aggressive sexual behaviour toward her.

Then Gail Miller’s wallet was found buried in the snow near Cadrain’s house on April 4. Police speculated that Milgaard had tossed it there while he was driving around the neighbourhood. When John was interviewed a third time, on April 14, her story changed again. She insisted that Milgaard and Wilson hadn’t been out of her sight the day of the murder for more than a moment or two and she didn’t see any blood on Milgaard’s clothes. She did think he was capable of sexual assault and murder.

When Saskatoon Police interviewed Milgaard on April 18, he was cooperative and gave them blood, saliva, and hair samples. He was eager to help them and clear himself. As he later said, “I was trying my best to help the police. This had to be resolved. It was a terrible crime.” (He turned out to have blood type A, which was the same as the sperm found near Miller’s body.)

Milgaard denied killing Miller or being involved in her death. Cadrain and Wilson were also tested. Cadrain was type O and Wilson was type B. This eliminated Milgaard’s friends as potential suspects, but not Milgaard. Cadrain stuck to his story linking Milgaard to the murder despite the fact that he only became aware of the story of the murder after he returned to Saskatoon more than a month later. Police had no evidence linking Milgaard to the murder. There were two other problems: it appeared that he never had an opportunity to kill Gail Miller, since he wasn’t away from his friends long enough, and police couldn’t connect him to the three sexual assaults prior to Miller’s murder, since he wasn’t in Saskatoon at the time. The police needed to either find some evidence or eliminate Milgaard as their prime suspect.

In May 1969, under the strain of repeated questioning, Milgaard’s companions began to change their stories. Wilson told the Saskatoon Police that Milgaard had left the car when they became stuck at about 6:45 that morning. When he returned, he seemed to be out of breath. Calgary Police Inspector Art Roberts, who was trained in interrogation and polygraph, spoke to John and Wilson before he administered a voluntary polygraph test. According to the inquiry report on the case, he showed the teenage girl some of Miller’s bloodied clothing and appealed to her sympathy by asking her, “What if this had been your sister?” That’s when John began to incriminate Milgaard. She suddenly claimed to remember seeing him stab the girl they had asked for directions moments before the murder happened. It was a claim that she never again repeated. Roberts didn’t use a polygraph to test her statement. He turned her over to the Saskatoon police.

For his part, Wilson said the maroon paring knife found near Gail Miller’s body was similar to one that Milgaard had with him on their road trip from Regina to Saskatoon. He said he’d seen blood on Milgaard’s trousers when he was changing at Cadrain’s house. He also recounted the incident when John found a woman’s compact while she was looking in his car’s glove compartment for a map, which Milgaard tossed out the window. Incidentally, Miller’s compact was found with other items from her purse. Wilson also claimed that when they were in Calgary, Milgaard said he had tried to take a girl’s purse in Saskatoon and that he’d jabbed her with a knife when she resisted. Roberts did not test the incriminating evidence by polygraph. It’s not entirely clear why the teenagers suddenly changed their stories, but it proved to have devastating consequences for Milgaard. Now the police had the stories they needed to arrest him.

Milgaard was in Prince George, British Columbia, selling magazines when he found out the RCMP were looking for him. He went to the detachment. Police arrested him on May 30, 1969, after a four-month investigation. The pressure to find Miller’s killer was finally over. Milgaard was brought to Saskatoon and committed to stand trial after a preliminary hearing on September 11.

The police did not disclose to the Crown that they had initially believed that the same person was responsible for both Miller’s murder and the string of sexual assaults that preceded it. As was police practice at the time, they only sent the prosecutor the reports and witness statements that they felt were relevant to the case. In fact, neither the Crown nor Milgaard’s lawyer, Calvin Tallis, were even aware of the sexual assaults.

The day before Milgaard’s trial got underway, Wilson told police that Milgaard had re-enacted Miller’s murder at a party in a Regina motel room in early May, shortly before he was arrested. Wilson had heard the story from Craig Melnyk and George Lapchuk. Detective Karst interviewed Melnyk and Lapchuk. They told him that they were at a party at the Park Lane Motel when a newscast about Miller’s murder appeared on television. When Lapchuk suggested to Milgaard, who was under the influence of drugs, that he had killed Miller, Milgaard apparently grabbed a pillow and made stabbing motions. According to the two witnesses, he admitted that he killed the young nursing assistant. Milgaard told his lawyer that he had no memory of the incident. If he had done as his friends suggested, it was only intended as a joke. He had not killed Gail Miller.

Milgaard’s trial by judge and jury began in Saskatoon Court of Queen’s Bench on January 19, 1970, before Chief Justice Alfred Bence. Crown witness Sergeant Bruce Paynter testified that the frozen semen found at the crime scene was from someone who had type A blood and secreted antigens into bodily fluids such as semen and saliva. Milgaard had type A blood but no antigens were found in his saliva. This suggested he was not a secretor and the semen the police tested was not his. Tallis argued that Milgaard, therefore, could not be the person whose semen was found at the crime scene and this forensic evidence exonerated him.

However, testimony from Milgaard’s friends suggested otherwise. Wilson, who initially told police that Milgaard was never away from the car for more than a minute or two, testified that he left the vehicle for fifteen minutes. The Crown’s theory was that this was when Milgaard fatally stabbed Gail Miller. Although Wilson told police that he didn’t see any blood on Milgaard’s clothes, he testified during the trial that he saw blood on Milgaard’s pants and shirt. Cadrain testified that he saw a bloodstain that was one or two inches in diameter and a few splatters on Milgaard’s pants and shirttail. Melnyk and Lapchuk recounted the story about the motel room re-enactment. Melnyk admitted that he didn’t speak to the police until he was charged with armed robbery.

John testified that she couldn’t remember saying that Milgaard had stabbed Gail Miller. This was inconsistent with the police statement she had given in May. Caldwell had the option of asking the judge for permission to cross-examine John on the previous inconsistent statement she had made in writing. This was a new provision in the Canada Evidence Act. Without the presence of the jury, Justice Bence received submissions from Tallis and Caldwell about the procedure to follow. Contrary to their submissions, the judge decided that evidence about the circumstances in which John made the out-of-court statement should be given in the jury’s presence. Crown prosecutor T.D.R. Caldwell was granted permission to treat her as a hostile witness, before the defence had a chance to question her about the circumstances surrounding her police statement without the jury present. In the presence of the jury, Caldwell was allowed to read portions of John’s police statement in which she claimed to have seen Milgaard stab a woman. When asked if her statement was true, John replied that she didn’t know. Although the judge warned the jury to only use the parts of John’s police statement that she had adopted on the stand, the damage was done. They had heard her police statement incriminating Milgaard. He didn’t testify in his own defence after the Crown presented forty-four witnesses. His lawyer believed that Milgaard’s drug use and previous brushes with the law would not make him a good witness.

Milgaard was convicted on January 31, 1970, and sentenced to life in prison with no chance of parole for ten years. He was seventeen years old. As his mother Joyce recounted in an excerpt from her book A Mother’s Story,[1] David’s conviction had an impact on the entire family. They lived in Langenburg, Saskatchewan, a tiny community of about 1,000 people, where Milgaard’s father, Lorne, was a foreman at a potash mine. David’s quiet fifteen-year-old brother came home showing signs of having been in fights, fourteen-year-old Susan suddenly no longer had friends, and children surrounded ten-year-old Maureen and taunted her with, “Your brother is a killer!” By May 1970, it became clear that the family would have to move. Lorne found a job running a quarry and the Milgaards headed to Winnipeg. The Saskatchewan Court of Appeal rejected Milgaard’s appeal in January 1971, and the Supreme Court of Canada followed suit on November 15. He had reached a legal dead end.

But Larry Fisher’s involvement with the criminal justice system had just begun. At the time of Gail Miller’s murder, he lived in the basement apartment of the Cadrain house with his wife Linda and their infant daughter Tammy. Three weeks after Milgaard was convicted, a fourth victim was followed home and raped in Saskatoon on the evening of February 21, 1970. Another woman was assaulted in Fort Garry, Manitoba on August 2. Fisher was arrested in Fort Garry on September 19 while he was raping his sixth victim. He had no criminal record. The Saskatoon Police was alerted since Fisher had previously lived in that city. Perhaps they had unsolved rapes in that jurisdiction?

During an interview with Saskatoon Police Detective Eddie Karst in Winnipeg on October 22, 1970, Fisher confessed to two of the assaults in Saskatoon. Two months later, on December 30 (a month after Milgaard appealed his murder conviction to the Saskatchewan Court of Appeal), Fisher was charged with raping three victims in Saskatoon and one indecent assault. On May 28, 1971, he pleaded guilty to raping his final two victims in Manitoba, for which he was sentenced to thirteen years in prison. On December 21, he pleaded guilty to the four Saskatoon attacks and was ordered to serve his sentence concurrently with his thirteen-year sentence in the Manitoba attacks. In 1971, Crown prosecutor Serge Kujawa handled Milgaard’s leave to appeal to the Supreme Court of Canada and Fisher’s guilty plea in Saskatchewan Court of Queen’s Bench. But neither the police nor the Crown made a connection between the series of rapes and Gail Miller’s murder in the same neighbourhood around the same time period.

Fisher was released from prison on January 26, 1980, after serving ten years of his sentence. He was soon back behind bars after raping and slashing the throat of a woman in North Battleford, Saskatchewan, on March 31, 1980. He was sentenced in June 1981 to ten years in prison for rape and attempted murder. Fisher’s first convictions ten years earlier had aroused the suspicions of his ex-wife Linda Fisher. In 1971, she confronted him while he was in the Prince Albert Penitentiary, but he denied that he had killed Miller. His denial, nor the fact that Milgaard had been convicted, didn’t ease her suspicions. She even went to the public library to look for a picture of the murder weapon that was used in Miller’s killing. She wanted to compare it with her missing paring knife.

On August 28, 1980, Linda Fisher went to the Saskatoon Police and told them she suspected that Larry Fisher was Gail Miller’s killer. She thought David Milgaard was innocent. She gave her statement to Inspector Kenneth Wagner, the senior officer on duty. She told him that she was in the midst of an argument with Larry Fisher the day of Miller’s murder when a news story about the killing came on the radio. She said he was shocked when she accused him of killing Miller. She also stated that she lost a paring knife around that time and believed Fisher might have used it in the killing. Larry Fisher had never been questioned about the murder. Her statement was sent to the police department’s Investigation Division, but nobody followed up. It proved to be another missed opportunity to right a wrongful conviction. It would take another seventeen years for Larry Fisher to be linked to Gail Miller’s murder.

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 the time, the guidelines for compensation for wrongful conviction required proof of innocence. On March 29, 1993, Milgaard filed a lawsuit against Saskatchewan justice officials and Saskatoon Police officers.

David Milgaard on November 29, 1991, with his mother Joyce and his sister. Photo: Ken Faught/Toronto Star/GetStock

Fisher was released from prison on May 26, 1994. Three years later, DNA testing had advanced sufficiently to give the technology another try. A test was performed on semen found on Miller’s clothes. On July 18, 1997, the results revealed that the semen on Miller’s clothing didn’t match Milgaard’s — but it did match Fisher’s. He was arrested on July 24 and charged with her murder, twenty-eight years after she was stabbed to death in a Saskatoon alley. Fisher was convicted on November 22, 1999, and sentenced to life in prison on January 4, 2000. The Saskatchewan Court of Appeal dismissed the appeal of his conviction and, on August 16, 2004, the Supreme Court of Canada dismissed his application for leave to appeal.

On August 19, 1997, a month after Milgaard was exonerated, the Saskatchewan government announced that he would be compensated for his wrongful conviction. They also made a commitment to hold a public inquiry into the circumstances that led to his wrongful conviction. Milgaard was awarded $10 million on May 17, 1999. The Commission of Inquiry into the Wrongful Conviction of David Milgaard got underway in Saskatoon before Justice Edward MacCallum of the Alberta Court of Queen’s Bench on January 17, 2005. The inquiry examined the investigation into Gail Miller’s murder and David Milgaard’s trial, the information that emerged after Milgaard’s conviction, how the case was reopened, and whether the investigation should have been reopened when police and justice officials received new information. It also examined systemic issues that led to Milgaard’s wrongful conviction.

The inquiry wrapped up hearings on December 11, 2006. Saskatchewan Justice Minister Don Morgan released the commission’s 815-page report on Sept. 26, 2008. Justice MacCallum believed the Saskatoon Police acted in good faith during its investigation of Miller’s murder, but he raised questions about how Inspector Art Roberts questioned Ron Wilson and Nichol John. “But for the questioning of John and Wilson by polygrapher Roberts, David Milgaard would not have been charged and tried for the crime of murder,” MacCallum said in his report. He didn’t believe that Roberts induced John to lie about seeing Milgaard stab a woman. Rather, she may have been pressured to tell him what he wanted to hear. He was also critical of the trial judge, who incorrectly applied a rule of evidence, which led to the jury hearing information that prejudiced the case against Milgaard. The judge also intervened repeatedly when witnesses were testifying, which had a similar effect.

MacCallum noted that the Saskatoon Police should have investigated Linda Fisher’s statement that she believed her ex-husband was responsible for Gail Miller’s murder. He said that whether or not to follow up on these types of reports shouldn’t be left to the discretion of the police. A policy should require these reports to be referred to the office of the Director of Public Prosecutions. Among his thirteen recommendations, he also called for the federal government to create an independent body to review allegations of wrongful convictions. “Had such an agency been in place in 1980, the investigation into the death of Gail Miller would probably have been reopened,” MacCallum wrote in his report. His recommendation came more than eighteen years after Justice Alexander Hickman made the same one at an inquiry into the wrongful conviction of Donald Marshall Jr.

Notes

1. Joyce Milgaard and Peter Edwards. “The Fight to Free My Son.” Reader’s Digest, May 2000, 172-212.

2. Ibid.