Driskell free at last

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This article was published 29/11/2003 (8010 days ago), so information in it may no longer be current.

JAMES DRISKELL walked out of a Winnipeg courtroom yesterday, free for the first time in more than 13 years and more committed than ever to prove his innocence once and for all.

After a whirlwind week that saw a wave of new evidence questioning his guilt, a Winnipeg court ordered that Driskell be released on $50,000 bail while the federal Justice Department reviews claims that he is innocent of the 1991 murder of his friend, Perry Dean Harder.

Driskell said he was overwhelmed by the decision — and the media attention — as he walked out of the Law Courts Building arm-in-arm with his mother, Florence, and into a wall of television cameras, microphones and tape recorders.

“The battle is only half done,” Driskell said as the media throng enveloped him. “We still have a lot more work we have to do. And (the bail) is not going to take my focus away from anything.”

Only once before in Canada has a convicted murderer been granted bail because of new evidence pointing to a wrongful conviction. In July, Romeo Phillion was released on bail after three decades behind bars while the federal justice minister investigates whether he was wrongfully convicted in the murder of an Ottawa firefighter.

Florence Driskell, who seem dwarfed by her barrel-chested son, called yesterday “Good Friday.”

At a news conference later, the soft-spoken 45-year-old father of eight repeatedly claimed he did not know what to say about his startling release.

“There’s not much I can say about freedom, because I haven’t had it for the last 14 years,” Driskell said.

He will live with a friend in Ste. Pierre Jolys, south of Winnipeg, while on bail. He celebrated his release there last night with a quiet family gathering of about 20 people, including children and grandchildren.

That friend — a former convict who now works at Stony Mountain Institution, where Driskell did his time — put up his home as surety for the bail. Manitoba’s most recent victim of wrongful conviction, Thomas Sophonow, contacted Driskell to pledge his support as well.

Sophonow, who received $2.6 million for his wrongful conviction in the death of a Winnipeg waitress, offered to put up the $50,000 in cash. “I can appreciate what he’s going through, to put it mildly,” Sophonow said from his home near Burnaby, B.C. “I wanted to make sure that no matter what amount they set it at, that it wouldn’t be out of his reach.”

Many of Driskell’s supporters, including James Lockyer, a Toronto lawyer and director of the Association in Defence of the Wrongly Convicted, went on the attack after the bail decision.

Lockyer said he and Winnipeg lawyer Alan Libman will focus their efforts on convincing the federal justice minister to take action under Sec. 696 of the Criminal Code, which allows the minister to overturn a conviction or order a new trial.

However, Lockyer said he is confused and appalled by the decision of Manitoba Attorney General Gord Mackintosh and the prosecutions branch of his department to dismiss the new evidence and continue arguing that Driskell is guilty.

“I appeal directly, as do we all, to Manitoba Justice to finally take off the blinders to acknowledge that (Driskell) is a victim of a miscarriage of justice,” Lockyer said.

James McCloskey, head of Centurion Ministries, the New Jersey-based organization that is investigating Driskell’s case, said he is more convinced than ever that Driskell will be proven innocent. “There is no question in my mind that not only did (Driskell) not get a fair trial, but he’s a completely, factually innocent man.”

Driskell’s cause was bolstered significantly by Justice John Scurfield of Court of Queen’s Bench, who took just one night to reach a decision to approve Driskell’s bail. Scurfield rejected Crown arguments there was still an abundance of evidence tying Driskell to the murder, and determined the new evidence might have overturned Driskell’s conviction.

“Finally, I am satisfied that if all of the new evidence had been presented to the Court of Appeal following the original trial, the conviction would probably have been set aside and he would probably have been granted a new trial,” Scurfield said.

Scurfield reviewed a large body of new evidence, including DNA tests that excluded three hairs used to convict Driskell, a recantation by a key witness that was suppressed by the police, and secret cash payments and an immunity deal for witnesses that were never disclosed to Driskell’s lawyers.

In order to be granted bail, Driskell had to prove the evidence that he had not received a fair trial was so compelling it would violate his right to liberty to keep him in prison while Ottawa investigates his case.

Scurfield said the DNA results alone were enough to meet the standard of evidence needed to grant Driskell bail.

Additional new facts, particularly the undisclosed witness payments and immunity deal, “could have constituted the straw that broke the jury’s confidence in these witnesses,” Scurfield said.

The tone and strength of Scurfield’s comments raise significant problems for Mackintosh and Manitoba Justice, who one year ago dismissed the DNA results as unlikely to have affected the jury’s verdict and have failed to act despite the emergence of other facts that weakened the original Crown case.

Mackintosh refused an invitation from Driskell’s lawyers to take the evidence straight to the Manitoba Court of Appeal in December 2002, to let the province’s highest court decide whether it warranted a new trial. Mackintosh called the evidence “unsettling,” but turned down the request.

Mackintosh declined to comment on the bail release, indicating he is awaiting the federal review of the case. Premier Gary Doer issued much the same statement, saying Driskell’s case is better left to the courts to decide.

“The bottom line is we respect the views of the judge. We always respect the separation of the government of the day from the judicial system, and the judge’s decision we respect no matter what it would be,” Doer said.

Lockyer, who refused comment while the bail application was ongoing, said he was shocked at Mackintosh’s recent decision to launch a judicial inquiry into allegations senior Crown officials deliberately withheld evidence that could have prompted a new trial, yet refused to take that evidence directly to the appellate court for an opinion.

“We once again appeal to Manitoba Justice to acknowledge that (Driskell) is the victim of a miscarriage of justice,” Lockyer said. “I just don’t know what we have to do to convince them. It’s incredible to me that we are still at a stage where yesterday they were opposing bail, and today they continue to oppose our application to the justice minister in Ottawa.”

There will also be difficult questions for Winnipeg police Chief Jack Ewatski, who has been criticized by Driskell’s lawyers for refusing to release an internal review of the case, a review he helped write more than 10 years ago.

Ewatski said yesterday he had no comment on Driskell’s release from prison. Ewatski said because of the ongoing court proceedings and federal review of the conviction, it would be inappropriate to comment on yesterday’s proceedings.

The police chief said he also stood by the decade-old internal report that reviewed the police investigation of the Driskell case and examined claims that Driskell had been wrongly convicted. A judge ordered the report to be released on Monday.

dan.lett@freepress.mb.ca

leah.janzen@freepress.mb.ca

— with files from Bruce Owen and Mia Rabson

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Important events in the James Driskell case:

June 16, 1990 — Perry Harder, 30, leaves his Winnipeg rooming house in his pickup truck and is not seen alive again. Three months later, someone on a passing train spots his body in a shallow grave in the city’s north end. Police say he was shot several times and his body was taken in a van and dumped near the train tracks.

October 23, 1990 — Harder’s friend, James Driskell, is charged by police with first-degree murder. Just days before Harder’s disappearance, he and Harder were to appear in court on charges of possession of stolen property. They had been working a “chop shop” together, cutting up stolen cars and selling the parts. Police say Driskell killed Harder because Harder was going to testify against him.

June 1991:

James Patrick Driskell is convicted of first-degree murder. He is sentenced to life in prison with no hope of parole for 25 years.

January 1992:

Saskatchewan Justice writes to Bruce Miller, head of Manitoba Justice prosecutions branch, alerting him that Winnipeg police promised a key Crown witness, Ray Zanidean, immunity for a Swift Current arson without authorization from Saskatchewan Justice. Further, Saskatchewan officials indicate they are convinced Zanidean committed perjury while testifying against Driskell, and urge Miller to disclose the evidence to Driskell’s lawyers at the earliest opportunity.

Saskatchewan brings to Miller’s attention a recent decision in the Supreme Court of Canada, R. vs. Stinchcombe, which obligates police and prosecutors to disclose all evidence to defence counsel.

March 9, 1992:

Saskatchewan contacts Miller again, this time providing a copy of an RCMP investigation into the Swift Current arson, showing how Zanidean committed perjury about details of his arson case when he testified against Driskell. Again, Saskatchewan asks Miller to disclose these materials to Driskell’s lawyers.

July 1992:

Miller sends the Saskatchewan materials to Crown Attorney George Dangerfield, who prosecuted Driskell and who argued against his appeal. Miller tells Dangerfield he is leaving the material in Dangerfield’s hands “for whatever action you deem appropriate.” He does not ask Dangerfield to disclose the materials.

December 1992:

Manitoba Court of Appeal denies Driskell’s appeal for a new trial. The court hears no mention of the Saskatchewan materials disclosed to Miller and Dangerfield 10 months earlier.

March 11, 1993:

Miller writes to Dangerfield again, asking if “that information was disclosed to Mr. Driskell? If not, should we do so at this time?” Dangerfield returns the memo with a handwritten note indicating that he does not recall the material, and that he hesitates to agree to turn anything over to Driskell’s lawyers without first looking at it.

March 15, 1993:

Justice Minister Jim McCrae announces he has called for a review of the Driskell case because of media reports questioning the conviction. The next day, Dangerfield prepares a memo on the Driskell case and the media reports. In the four-page note, addressed to the Deputy Attorney General Ron Perozzo, Dangerfield dismisses criticism of the prosecution, and repeats the evidence presented at trial. Dangerfield does not include any of the new evidence from Saskatchewan in his note to Perozzo.

April 13, 1993:

Miller writes to Assistant Deputy Minister Stu Whitley about the Saskatchewan materials, indicating that on several previous occasions the two men had discussed the issue of disclosure to Driskell’s lawyers. Miller stated in the memo that in his opinion, “it would be inappropriate for us to withhold the information. From what I gather it was due to an oversight that Mr. Dangerfield did not address this issue when it was first brought to his attention last July.”

Miller goes on to say that Dangerfield has been asked to draft a letter to Driskell’s lawyers, explaining the delay.

(Greg Brodsky, counsel for Driskell has sworn an affidavit indicating he never received that letter from Dangerfield and never received the materials from Saskatchewan.)

November 4, 2003 — David McNairn, who reviews convictions for the federal Justice Department, conducts a preliminary review of Driskell’s case and says in a letter “there may be a reasonable basis to conclude that a miscarriage of justice likely occurred.” The department begins a thorough investigation into the Driskell case under Section 696 of the Criminal Code, which allows justice minister to overturn a conviction or order a new trial.

November 24, 2003 — Associate Chief Justice Jeffrey Oliphant of Court of Queen’s Bench orders the 1993 police review be made public on the grounds it could help Driskell not only in his bail bid but in proving his conviction may have been a miscarriage of justice.

November 25, 2003 — Police and Manitoba prosecutors point fingers. Ewatski, now Winnipeg police chief, holds a news conference to say “all available evidence” in the case was turned over to prosecutors, but Bruce McFarlane, Manitoba’s deputy attorney general, immediately issues a statement that Ewatski’s claims are “inconsistent with the information in the Crown’s file.”

November 26, 2003 — Manitoba Justice Minister Gord Mackintosh asks former provincial court judge John Enns to review how the Crown and police handled the Driskell case and whether all evidence was handed over to Brodsky.

November 28, 2003 — Driskell is freed on bail pending the federal review of his case. In releasing him, Justice John Scurfield says he has concerns about the conviction and focuses on the hair samples. “A (key) piece of evidence that the jury relied on was wrong,” he says.

dan.lett@freepress.mb.ca

— With files from Canadian Press