This article was originally published in Maclean's Magazine on August 4, 1997
Fisher Charged in Milgaard Case
For Larry Fisher, being on the move was nothing new. Since his release from prison in 1994, the convicted serial rapist had been hounded out of Dawson Creek, B.C., Calgary and North Battleford, Sask. Last week, Saskatoon joined the list. Under the cover of darkness late on July 23, the 47-year-old Fisher packed his tan Dodge van and a U-Haul trailer and rode west with his girlfriend. "He said that if anyone asks where he's going, tell them I headed east," said a woman who helped him load his belongings. "He doesn't show it," said another friend, "but I know he's been very upset by the past week's events."
Little wonder. For five days, Fisher had been the focus of intense media scrutiny after DNA test results finally exonerated David Milgaard in the 1969 Saskatoon sex slaying of Gail Miller, and strongly implicated Fisher in the crime. On July 18, Milgaard's lawyers revealed that the genetic testing they arranged at a British lab revealed not only that semen samples taken from Miller's clothing did not come from their client - who spent 23 years in prison for the murder he did not commit - but that the chances of them coming from anyone other than Fisher were just one in 400 million. Public attention naturally zeroed in on Fisher, whose record of seven sexual assaults includes four in Saskatoon not long before and after Miller's death. With the media staking out his one-bedroom downtown apartment, Fisher moved to a room in a rundown bungalow on the city's west side. Four days later, he slipped out of town.
Fisher got as far as Calgary, where city police, acting on a tip, went to a house and arrested him, charging him with rape and first-degree murder. Left in his wake in Saskatoon: an exonerated former convict; an apologetic and conciliatory provincial justice minister; a rattled, defensive Saskatoon police force; and a still-unsolved murder case taken out of the city force's hands and turned over to the RCMP for resolution. And as a judicial inquiry into another notorious miscarriage of justice unfolded in a Toronto courtroom, experts in both cases spoke of a "tunnel-vision" problem that can cause police to restrict their attention to a single suspect, ignoring other evidence.
At the inquiry into the wrongful conviction of Guy Paul Morin for the 1984 murder of Christine Jessop, police officers involved in the original investigation finally admitted last week that they helped convict the wrong man. As in Milgaard's case, DNA tests exonerated Morin in 1995 of the murder in the town of Queensville, Ont., 50 km north of Toronto. Police there now appear to be at a dead end in finding Jessop's attacker after having convinced themselves from the outset that Morin was the culprit. In a dramatic moment before the inquiry, John Shephard, the lead investigator on the case, admitted: "I was wrong and I accept that he is innocent." And after previously balking at conceding Morin's innocence, retired detective Bernie Fitzpatrick, another investigator, said that he, too, now accepts that Morin did not murder the young girl. Asked if police pursuing one suspect might screen out evidence implicating anyone else, Fitzpatrick replied: "I think I tend to agree it is there, to a degree." Added the ex-policeman: "How do you guard against it? I don't really know how you would."
The high-profile Milgaard and Morin cases are hardly unique examples of Canadians being falsely accused and wrongly convicted. Cape Bretoner Donald Marshall spent 11 years in prison before being released in 1983 when new evidence cleared him of murder. Richard Norris spent eight months in an Ontario jail for sexual assault before another man confessed to the crime 12 years later. And Wilson Nepoose was in prison in Alberta for five years for second-degree murder - he was freed in 1992 after a key Crown witness admitted he had lied.
According to Doug Schmeiser, professor of law at the University of Saskatchewan, tunnel vision is common in criminal investigations that go wrong. "What happens is police investigators zero in on a particular individual, form the conclusion that person is guilty and then view evidence from that perspective," says Schmeiser. "In the process, other evidence is disregarded or overlooked that doesn't fit the police theory. It seems clear that's what also happened in the Guy Paul Morin and Donald Marshall cases, where police believed a particular individual was guilty and pursued the case in a way to get that result."
In Milgaard's case, many questions linger about the handling of the original investigation and an apparent rush to judgment by police and prosecutors. While police were focusing entirely on Milgaard, then a troubled 16-year-old drifter, other circumstantial evidence seemed to point towards Fisher. For example, at the time of Miller's murder, Fisher was in the midst of a rape spree: of the seven sexual assaults on his record, four took place in Saskatoon between October, 1968, and February, 1970. On the day of Miller's death, Milgaard was visiting friends who lived near the murder scene - but Fisher lived in the basement of the same house. Fisher often travelled on the same bus as Miller - as he did with several of his assault victims.
Milgaard's lawyers accuse the authorities of going out of their way to prevent the public from linking Fisher's string of sexual assaults with Miller's death. A year after Milgaard's 1970 conviction, and one month after his appeal was denied, Fisher pleaded guilty to three Saskatoon rapes. But there was no preliminary hearing to air the evidence against Fisher. And Fisher entered his pleas not in Saskatoon, but in a court in Regina. "What you see is the same recurring theme that happens in many other cases where the wrong person is convicted," says Calgary lawyer Greg Rodin, who has worked on Milgaard's case for the past five years. "The police develop a theory on who committed a crime, and then work to build evidence that supports it. Other theories are ignored and other evidence is dismissed."
Rodin says he has trouble believing the police did not make the connection with Fisher, "and if they didn't, they should have." Neil Boyd, a professor of criminology at Simon Fraser University in Burnaby, B.C., says police were distracted by the fact that the young Milgaard was a hippie. "At the time, the mayor and police chief had very negative sentiments towards so-called hippies," says Boyd, who co-authored an independent 1992 study that concluded Milgaard was likely innocent and Fisher a prime suspect. "Hippies represented an ideology that was seen as threatening and in some minds repulsive."
But as both the Milgaard and Morin cases demonstrate, getting authorities to admit their mistakes is not always easy. In 1992, the Supreme Court ruled that, while it felt Milgaard had a fair trial, it was aware of evidence that was never presented to the jury. The high court said he should have a new trial, but police and justice officials seemed reluctant to entertain the idea that the wrong person had gone to jail. Freed from prison, Milgaard entered a kind of legal limbo, with prosecutors saying it would be impossible to mount a new trial after so many years. Far from conceding a mistake might have been made, then-Saskatchewan Justice Minister Bob Mitchell - named in a civil suit Milgaard launched in 1995 against police and prosecutors - flatly said: "I think he did it."
The police and the justice department consistently maintained that nothing improper had occurred - until the DNA results blew their position away. Last week, the current justice minister, John Nilson, expressed the province's new position. Issuing a "heartfelt" apology to Milgaard, he said compensation would be in order, an inquiry may be convened, and the RCMP would immediately take over the Miller murder investigation from the city police. But Saskatoon police Chief Dave Scott still seemed unable to find the words to apologize, conceding only that "we accept that Milgaard did not make the sample DNA stains that were tested." Asked if he still thought Milgaard killed Miller, Scott replied: "I wouldn't want to comment on whether he did or not. At this point, I do not know. Maybe he didn't, maybe he did."
All that was too much for Milgaard's mother, Joyce, who has worked for decades to clear her son's name. "Isn't it crazy?" she said in Winnipeg, where she called for a special prosecutor to oversee the new investigation. "I found it just very difficult to understand where they were coming from. I mean, I realize that they're ending up with egg on their face, but I think a lot of people have been harassing them and I think they look pretty stupid."
Before Fisher's arrest, the RCMP declined to comment on its newly inherited case. But Scott, whose force will brief the Mounties, shied away from the new public focus on Fisher. "There will be no haste," said the Saskatoon chief, "and we will not be part of the press hysteria." Nilson, too, urged the public not to leap to conclusions and to let the police do their work. Rather than get trapped in the same rush-to-judgment mentality that wrongly sent Milgaard to prison, police seemed intent on laying their groundwork thoroughly. A successful court action takes more than DNA test results, said Saskatoon police Staff Sgt. Glenn Thomson. "There has never been a case that went to court based solely on DNA evidence and there never will be," he said. "A lot of other evidence will have to be collected - that will take time."
Even before Fisher's arrest, his lawyers said they would challenge the admissibility of the DNA tests. They would also argue their client is unable to get a fair trial because he had been convicted in the court of public opinion. "This kind of lynch-mob mentality is nothing new for Mr. Fisher," says Edmond O'Neill of Edmonton, one of his lawyers. "He's faced it before and it makes a fair trial very, very difficult." But last week, Larry Fisher was squarely in the spotlight of a justice system that is itself on trial.
Maclean's August 4, 1997