Retained to Investigate the Wrongful Murder Conviction of James Driskell.
Mr. James Patrick Driskell was convicted of first degree
murder in the death of PerryDean Harder.His
body was found on September 30, 1990
in a shallow grave near
Brookside
Blvd.
in
WinnipegManitoba
.
In 1989,police
found stolen goods in a garage in St. Boniface
that was rented by Perry Harder.Perry Harder implicated both himself and Jim Driskell relative to the stolen goods found in the garage. Perry Harder went missing the following year in 1990. This was prior to the preliminary hearing in June 1990. The crown's position was that Jim Driskell killed Perry Harder to prevent him from testifying against him at the preliminary hearing.
The lawyer representing Perry Harder was Mr. Tim Killeen. He testified that
Harder was planning on pleading guilty to the charges. There was no other physical evidence linking Jim Driskell to the stolen goods charges, other than Harder's statement. Mr. Killeen
testified that he anticipated that the charges to be dropped against Mr.
Driskell at the time Harder would plead guilty.
Mr. Driskell's Driskell’s
lawyer was Mr. Ian Garber. He testified that Jim had knowledge that Harder would be pleading guilty and they expected the charges
would be stayed against him.
An RCMP officer testified for the crown. He was a forensic
technician. He examined hairs found in a van that was owned by Mr.
Driskell.Zanidean and
Gumienytestified the van was used in the murder.This officer testified that the hairs
found in the van were consistent with the hairs from Perry Harder .DNA testing was not available at this time.
Both Ray Zanidean
and John Gumieny were crown witneses and police informants. They are also career criminals. Zanadien wore a wire in an effort to attempt to illicit a confession from Mr. Driskell that he murdered Perry Harder. Although Mr. Zanidean testified Jim Driskell confessed to the murder, none of this evidence was found on the body wire. After exhausting all appeals,Mr. Jim Driskell contacted our office.
Overview of Work Performed:
After reviewing all the court transcripts,
we focused on the following:
To obtain DNA
Testing on the hairs located in Jim Driskell’s van to provide conclusive evidence on whether or
not it belonged to the deceased Perry Harder.
The
police evidence determined two shovels were used to dig the grave
site which would suggest more than one person was involved in
the murder.
We interviewed several witnesses who claimed
policethreatened them into making statements
against Mr. Driskell.
One of our key suspects was also a police suspect, but he was never charged.
We requested an independent review of both the police and crown’s handling of the case and encouraged
media attention as this was a case that required public pressure.
Results of Investigation:
Heidi Graham, former Winnipeg Sun Reporter became involved with reports of police and crown misconduct.
The police conducted a review of the case led by Inspector Jack Ewatski at the time and Inspector Hall. Both refused to provide our firm with a copy of the review after numerous requests. The crown conducted several reviews
of their handling of the case. They also refused to provide us with a copy of the results.
The crown assured us their review found no evidence ofmisconduct.The police saidthey found no evidence that would
lead them to believe that Jim Driskell was not involved in the
murder.
Winnipeg Free Press became involved in the pursuit
of Justice and conducted an investigation led by Mr. Dan Lett.
We applied for information under the Freedom on
Information & Protection of Privacy Act to determine if Zanidean received a reward
for his testimony. Winnipeg Police responded under the Act, and advised the monies that Zanidean
received were in the possession of the crown’s office.We then applied for this information under
the FIPPA directed to the crown office but they refused to acknowledge whether or
not Zanidean was compensated for his testimony.
The results of the FIPPA request from the City
of Winnipeg Police Servicewere forwarded to the Defense of
the Wrongfully Convicted.James Lockyer led the defense in
this pursuit along with Mr. Alan Libman.
Mr. Dan Lett of the
Winnipeg Free Press received
a copy of our findings, and made further inquiries.
The Winnipeg Free Press investigation led by Dan Lett found Zanidean received thousands of dollars in exchange for his testimony. None of this evidence was disclosed
to the defense and the crown failed to acknowledge this in their
reviews.
The Association of the Wrongfully Convicted sent
the hairs found in Driskell’s van for DNA testing to England
.The results determinedthe hairs did not belong to
the deceased Perry Dean Harder.
The police were ordered to release their review to the Association of the Defense
of the Wrongfully Convicted for a bail application.Associate Chief Justice Oliphant ordered the release of the police review.
The police review concluded that that Zanidean was heavilyfocused on
obtaining money in exchange for his testimony.
They identified problems withZanidean’s credibility and with
the police investigation.
On June 3, 2003, the Association for the Defense of the Wrongfully Convicted asked the Federal Minister of Justice to review his murder conviction.
The Association for the Defense of the Wrongfully
Convicted filed an application under section 696.1 of the Criminal
Code on the grounds that a miscarriage of justice had occurred.
The Association for the Defense of the Wrongfully
Convicted also appeared
before the Court of Queen’s Bench in 2003, and filed an application of interim
release for James
Driskell.
Mr. Justice Scurfield ruled that had
the new evidence with respect to the paid testimony of Zanidean
been available at the time of thetrial, it would have reasonably affected the verdict. In November 2003, Mr. Jim Driskell was released
from prison after serving thirteen years,pending the results of a Federal Review of the case.http://www.canlii.com/mb/cas/mbqb/2004/2004mbqb3.html
The Minister of Justice ordered an independent
review of both the police and crown disclosure to the defense as it related to the prosecution
of James Patrick Driskell.
Former Justice Enns conducted a review with respect to the Crown Disclosure Compliance to the Defense.
On March 3, 2005, the Federal Justice Minister quashed the conviction,
and the Minister of Justice in Manitoba stayed the charges against
Jim Driskell.
An inquiry is called and will be presided by Justice Patrick Lesage and commissioned by Mr. Michael Code of Ontario.
Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell. www.driskellinquiry.ca
Robert Marshall, a former Winnipeg Police Officer and now columnist of the Winnipeg Sun was one of the first investigators on the Harder Murder. This explains why he lacks objectivity in his reporting on the case.
Dan Lett of the Winnipeg Free Press was a winner for the 2003 Michener Award in his investigation concerning the Wrongful Conviction of James Driskell. He is one of the most objective reporters in Manitoba.
Mr. Driskell's hearing begins on July 17, 2006 at 9:30 a.m. at the Winnipeg Convention Centre in the Pan Am Room, 375 York Avenue, Winnipeg, Manitoba.
A Statement of Claim for damages in the amount of 20 million was filed in Manitoba against the officials involved in the case.
The final release of the Inquiry report will be available in the middle of February, 2007.
The lead prosecutor in the Driskell case, George Dangerfield, was also involved in the wrongful murder convictions of Thomas Sophonow, Kyle Unger, and Frank Ostrowski.
Chief Ewatski announces his retirement in January 2007.
Former Justice Ruth Krindle has been appointed by Justice Minister Chomiak as an Implementation Advisor with respect to the recommendations delivered in The Honourable Patrick Lesage's Commission Inquiry Report. She was the first female appointed as a prosecutor in Manitoba and also the first woman in Manitoba to be appointed a judge in the Court of Queen's Bench. Below is former Justice Krindle's biography linked from the Government of Manitoba Website
A Motion to Strike Portions of the Plaintiff's claim was filed by the Defendants.
June 13, 2007:
Justice Greenberg ruled against a motion by the Defendants to strike out portion's of Driskell's claim for damages against the police and crown. The issue was whether the crown or police can be sued for negligence concerning their conduct in failing to provide full disclosure. Justice Greenberg ruled crown attorneys, police, and Manitoba's Attorney General can be sued for damages.
A Notice of Appeal has been filed on or about September 11, 2007.
Driskell's Dream Team of Lawyers of Ontario & Manitoba.
Stu Whitely; (former Assistant Deputy Minister of Justice)
The Estate of Bruce Miller; (former Director of Prosecutions)
David Cassels; (former Chief of Police)
Jack Ewatski ( former Chief of Police)
Herb Stephen;(former Chief of Police)
Lawrence Klippenstein; (former Deputy Chief)
Joseph Gallagher; (former Deputy Chief)
Dale Henry; (former Chief of Police)
Terry McGregor; ( former Deputy Chief)
Tom Anderson; (former Winnipeg Police officer)
Al Paul; (former Winnipeg Police Officer)
Calvin Osborne; (former Winnipeg Police Officer)
Henry Williams; (former Winnipeg Police Officer)
William Vandergraaf (former Winnipeg Police officer).
Mr. William Vandergraaf (above), former Winnipeg Police officer has drug charges pending against him. One count for possession and one count for production of a controlled substance.
Former Justice Salhany of the Ontario Court has been retained to review all of George Dangerfield's cases where the person convicted has maintained their innocence.
October 4, 2007:
Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41
The Supreme Court of Canada ruled that "police are not immune from liability under the law of negligence and the tort of negligent police investigation is now recognized in Canada" . http://scc.lexum.umontreal.ca/en/2007/2007scc41/2007scc41.htmlon.
October 19, 2007:
R. v. Mullins-Johnson, 2007 ONCA
Wrongful Murder Conviction of William Mullins-Johnson:
The Ontario Court of Appeal inR v. Mullins Johnson found the Appeal's Court has no jurisdiction to make a finding of factual innocence for Mr. William Mullins-Johnson, but ruled that he had been a victim of a "terrible miscarriage of justice." His conviction was quashed and the court entered an acquittal. The court referred to "policy reasons" for not finding an acquittal to be declared as factually innocent. The Appeal's Court also relied on evidence submitted by Professor Kent Roach when he was retained in the Driskell inquiry to examine the means of determining wrongful murder convictions following proceedings under section 693 (a) (i) and 579 of the Criminal Code of Canada. In his submissions to the inquiry, he said determining someone factually innocent would demean the context of a not guilty verdict.
Mr. Mullins Johnson was wrongfully convicted and spent twelve years in jail based on faulty pathological evidence under the examination of Dr. Charles Smith. Dr. Smith will be the subject of a public inquiry in Ontario after a review panel found that he erred in number of child death cases.
Mr. William Mullins-Johnson was babysitting his four year old niece, Valin, at the time the death was pronounced by Dr. Bhubendra Rasaiah. He conducted the autopsy and found extensive bruising on Valin's body. He told the pathologist the death was due to "homicidal asphyxiation," prior to the completion of his examination. The pathologist, Dr. Charles Smith, said Valin was a victim of "chronic child abuse". Dr. Patricia Zehr, a gynecologist/obstetrician, followed up with an examination, and determined "it was one of the worst cases of child sexual abuse she had ever seen." It was the series of these events that led to Mr. Mullins- Johnson's wrongful murder conviction.
Pathological experts were retained by the Association in Defense of the Wrongfully Convicted and their examination found that the injuries to Valin's anus and vagina were not caused by sexual assault and murder, but the result of natural bodily changes found after death. A "dilated anus" that was said to have been caused by sexual assault, according to Dr. Zehr, is in fact a common condition in children after death.
The bruises found on Valin's body were caused by "lividity" which is a condition known as livor mortis when blood coagulates after death, according
to the experts.
The Appeal's court found there was no evidence to support that Valins' death was due to "homicidal asphyxiation", and the cause of Valin's terrible and fatal death remains unknown today.
Premier Danny Williams of Newfoundland and Labrador appointed Jerome Kennedy a St. John's criminal defense lawyer as Minister of Justice and Attorney General. Mr. Kennedy was also the Newfoundland representative of AIDWYC.
