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Wronged: 2 people share their stories of wrongful conviction

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Clayton Johnson wrongful murder conviction : Tide of Suspicion (1998) - The Fifth Estate

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Despite the presumption of innocence and the right to a fair trial, there are still cases in Canada in which innocent people are convicted - most disturbingly, for murder. the fifth estate investigates the murder convictions of four Manitoba men and the Crown prosecutor, George Dangerfield, who presided over all of them.

In the 1980s, as Manitoba's star Crown Prosecutor, Dangerfield was legendary for his creativity and flair in the courtroom and his apparent disdain for defence lawyers. He was successful in getting convictions for some of the most notorious murder cases in that province. But, two of those convictions have been overturned, charges quashed on a third, and a federal review of a fourth is ongoing, making Dangerfield responsible for the most wrongful murder convictions in Canada. In The Wrong Man, reporter Bob McKeown looks back on the three cases and reveals a possible fourth.

At the heart of the story are three men: Thomas Sophonow, James Driskell, and Kyle Unger. Beginning with Sophonow, the prosecution of their cases covered more than a decade. It would take another decade before their convictions began to unravel, with revelations of the Crown's withholding of crucial evidence, bargains and deals with jailhouse informants, questionable testimony and coerced confessions.

In the past year, the case of Frank Ostrowski of Winnipeg became public and fit a familiar pattern. In 1987, Ostrowski was convicted of a murder he insisted he did not commit. The prosecutor at his trial was George Dangerfield. After 23 years in prison, Ostrowski is now out on bail, awaiting a legal decision that will determine if he, too, will join the list of Sophonow, Driskell and Unger.

In interviews with McKeown, the men reflect on their lost years spent behind bars - reputations destroyed, their own lives and those of their families shattered. As for Dangerfield, he is retired now and living in Vancouver, where McKeown confronts him.

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The Wrong Man - Episodes - The Fifth Estate

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Despite the presumption of innocence and the right to a fair trial, there are still cases in Canada in which innocent people are convicted - most disturbingly, for murder. the fifth estate investigates the murder convictions of four Manitoba men and the Crown prosecutor, George Dangerfield, who presided over all of them.

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In the end, there wasn't one hair of evidence against James Driskell.

Now, a former Ontario judge who examined the Winnipeg man's wrongful murder conviction is calling for a Canada-wide audit of criminal cases that featured microscopic hair comparisons - and an independent review of cases involving the Crown attorney who prosecuted Driskell.

There were apologies all around today to Driskell, 48, who was wrongly convicted in 1991 of murdering Perry Harder, his former partner in a "chop-shop" operation.

Flawed science and the suppression of evidence relating to the credibility of two key Crown witness were largely to blame for the 13 years, one month and seven days Driskell spent behind bars, Patrick LeSage, former chief justice of Ontario's Superior Court of Justice, said in a wide-ranging report released today from a commission of inquiry.

His findings were unambiguous.

"What happened in this case is just plain wrong," LeSage said in concluding the conduct of four Crown prosecutors fell below professional standards and that Winnipeg police officers - including the city's former police chief, Jack Ewatski - failed to disclose pertinent evidence "before, during and after Driskell's trial."

James Lockyer, one of Driskell's lawyers, said the most significant aspect of the report is "the likelihood that we're going to get a chance to examine more potential wrongful convictions." LeSage recommended that Manitoba justice officials arrange an independent, external review of cases if anyone prosecuted by George Dangerfield, the lead Crown lawyer in the Driskell case, comes forward claiming to be wrongly convicted.

Though "a dedicated hard-working Crown attorney," Dangerfield, now retired, prosecuted four other homicides that involved issues of faulty hair comparisons or undisclosed evidence, LeSage said.

One was the notorious case of Thomas Sophonow, tried three times for a 1981 murder he didn't commit.

LeSage also spent considerable time in his report dealing with a thorny, emerging problem for the justice system: How to help innocent people regain their standing in the community.

The issue has taken on huge significance in the case of Steven Truscott, whose lawyers are asking the Ontario Court of Appeal to issue a formal declaration of his innocence.

The Driskell inquiry was told that findings of "guilty" and "not guilty" may be an inadequate response to the phenomenon of wrongful convictions and that factually innocent persons - as well as the public - may need a more formal and official means of exoneration.

LeSage expressed reservations about a proposal calling for the use of "innocence hearings," at which a wrongly convicted person, once a conviction is set aside, could attempt to prove factual innocence on a balance of probabilities and obtain a judicial declaration to that effect.

But the problem may require "new and creative ways of thinking," said LeSage, who recommends that federal, provincial and territorial ministers look for solutions.

In his report, LeSage also strongly discourages the practise adopted by justice ministers in several cases of wrongful conviction - including Driskell, David Milgaard and Gregory Parsons - of "staying" the charges, which merely "suspends" the proceedings and drapes the innocent with a "residual" taint.

In the Driskell case, Harder died from two gunshot wounds to the chest.

The Crown's theory was that Driskell killed him because Harder was going to testify against him at a trial for possessing stolen auto parts, though Driskell's lawyer said the charges were going to be withdrawn.

The case hinged on testimony from two key witnesses, Reath (Ray) Zanidean and John Gumieny, and evidence that three hairs that allegedly came from Harder were found in Driskell's van.

DNA tests in 2002 established Harder was not the source of the hairs and they in fact came from three people.

Meanwhile, the jury was "seriously misled" about Zanidean's motivations for testifying, LeSage said. Zanidean claimed he overheard Driskell plot and confess to the murder. He was backed up at the trial by Gumeiny.

Leading up to the trial, Zanidean had been negotiating for immunity on an arson charge laid after he allegedly burned down his sister's house in Saskatchewan. He had also been given tens of thousands of dollars and had his mortgage arrears paid off by Manitoba justice officials.

Winnipeg police arranged to have the Saskatchewan arson charge dropped but did not formally advise Zanidean before trial.

There was no paper trail documenting the negotiations, but all players understood implicitly there was a deal, LeSage said.

"The rationale was that since no explicit promise or favour was given the witness prior to his testimony, he would not be contaminated and not testify in return for awards granted."

As for the hairs, LeSage said he is "concerned" problems in Driskell's case "are not unique to his case or unique to Manitoba."

Before Driskell's first-degree murder conviction was quashed in 2005, the Manitoba justice department reviewed murder cases in that province which featured hair comparison evidence. The results "have been disturbing," LeSage said.

In four cases, including Driskell's, the hairs came from multiple sources - none from the source alleged at trial. A recent study of FBI hair comparisons found errors in 11 per cent of cases.

Hair comparison evidence played a key role in the case against Guy Paul Morin.

With advances in DNA testing , the RCMP has abandoned the practise of visual hair examinations and the Centre of Forensic Sciences in Toronto has largely phased it out, the inquiry heard.

What's not known is how many people may still be behind bars, convicted on the basis of a dangerous "science."

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Wrongful conviction report urges review of cases

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In the end, there wasn't one hair of evidence against James Driskell. Now, a former Ontario judge who examined the Winnipeg man's wrongful murder conviction is calling for a Canada-wide audit of criminal cases that featured microscopic hair comparisons - and an independent review of cases involving the Crown attorney who prosecuted Driskell.

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WINNIPEG - James Driskell, the Winnipeg man who spent 13 years in prison for a murder he didn't commit, is being offered $4 million in compensation from the province and city.

Driskell had been suing police and prosecutors for $20 million, but reports from Winnipeg city council made public Friday indicated all sides have agreed to a $4-million payout for Driskell and $25,000 extra for his mother.

Under the deal, which city council still has to formally agree to Sept. 24, the city would pay $1.61 million and the province would fund the rest.

A provincial government spokesperson declined comment except to say: "A tentative settlement is under consideration by the province and the city and it would not be appropriate for us to say any more until both parties have had a chance to consider it."

Driskell could not immediately be reached for comment.

He had been convicted in 1991 in the death of Perry Dean Harder.

Both Driskell and Harder had been charged with auto theft, and the Crown contended Driskell shot Harder several times in the chest in June 1990 to keep him from giving incriminating evidence, then dumped his body in a shallow grave near some railway tracks.

The Association in Defence of the Wrongly Convicted eventually took up the case and challenged key evidence used to put Driskell behind bars.

The Crown had accused Driskell of killing Harder in the back of his van, pointing to three hairs in the van an RCMP lab labelled as belonging to Harder.

However DNA tests done in England at the request of the association later revealed none of the hairs belonged to Harder.

Driskell was released on bail in 2003 and the federal justice minister quashed the conviction in 2005. The Crown didn't pursue another trial.

A subsequent inquiry delivered a scathing report last year, saying prosecutors and police were partly to blame.

In his report, commissioner Patrick LeSage said police "failed to disclose material information to the Crown before, during and after Driskell's trial."

As well, LeSage said, the Crown didn't correct misleading evidence the jury heard at Driskell's trial - specifically the false testimony of key Crown witness Ray Zanidean, who told the jury he was not getting special treatment or payments in exchange for his testimony.

In fact, Zanidean had been given immunity on an arson charge in Saskatchewan and was receiving tens of thousands of dollars in expenses and compensation.

The report also said then-police inspector Jack Ewatski, later Winnipeg's chief of police, "contributed to Driskell's continued incarceration" by not disclosing a report he prepared on the case in 1993 - two years after Driskell was convicted - which raised new questions about the Crown's case.

Driskell has kept a low profile since his release, working odd jobs and spending time with his wife, eight children and 12 grandchildren.

He has said the case points to a systemic problem in the justice system that may have put many other innocent people behind bars.

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james driskell prison wrongfully convicted

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Wrongly convicted James Driskell offered $4M deal

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WINNIPEG - James Driskell, the Winnipeg man who spent 13 years in prison for a murder he didn't commit, is being offered $4 million in compensation from the province and city. Driskell had been suing police and prosecutors for $20 million, but reports from Winnipeg city council made public Friday indicated all sides have agreed to a $4-million payout for Driskell and $25,000 extra for his mother.

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An inquiry's reportintothe James Driskell caseblames Winnipeg police and prosecutors for his wrongful murder conviction, saying "what happened in this case is just plain wrong."

Driskell, 48, spent 12 years behind bars, convicted offirst-degree murder in 1991after hisfriend Perry Dean Harder was found shot to death in Winnipeg.Driskell always maintained his innocence and his conviction was eventually quashed by the federal justice minister.

The inquiry's final report, released Thursday, says the jury in Driskell's trial was "seriously misled" on issues including the reliability of a key Crown witness. The report also said the failure of the Crown to disclose information to the defence was "careless indifference."

The inquiry's commissioner, former Ontario chief justice Patrick LeSage, said in the report that members of the Winnipeg Police Service failed to relay important information to Driskell's lawyers before, during and after his trial.

LeSage also said Winnipeg police Chief Jack Ewatski contributed to the miscarriage of justice by not releasing a report that he prepared as an inspector in 1993 once he became chief in 1998. That report contained information that raised doubts about Driskell's guilt, but it was not made available to Driskell's lawyers for a decade.

Ewatski has announced he will retire in August.

The report does not suggest that anyone should be charged criminally for what happened to Driskell. It includes 21 recommendations: 10 apply to the province, three to the province and the Winnipeg Police Service jointly, three solely to the Winnipeg Police Service, and several others that apply to other jurisdictions, including the federal government and the judiciary.

'The system failed'

The province announced it has accepted the recommendations "in their entirety."

"The public reasonably expects, and is entitled, to a fair trial. Mr. Driskell did not receive one in 1991," Attorney General Dave Chomiak said.

"The system failed, and for that, I publicly apologize to Mr. Driskell on behalf of the province and all those who have been found to have contributed to this wrongful conviction. Mr. Driskell is innocent in the eyes of the law. I have conveyed that to him this morning in a personal conversation I had with him."

Driskell has filed a $20-million lawsuit against high-ranking justice and police officials.

The report recommends the province consider the claim for compensation. Provincial officials said they would immediately give Driskell a $250,000 payment as a show of good faith while other compensation issues are resolved.

Other recommendations to the provinceinclude:

Conducting an external review of cases prosecuted by the Crown attorney in this case, George Dangerfield, where claims of wrongful conviction have been made.

Revising policy to ensure direct indictment is used only in exceptional circumstances.

Extending pre-trial disclosure policy to include post-trial disclosure.

Revising policies to ensure that all benefits requested, provided or discussed with key witnesses be recorded and disclosed.

In 2005, Irwin Cotler, then Canada's justice minister, quashed Driskell's first-degree murder conviction after he had served more than 12 years in prison. He had been free on bail since 2003 while the Justice Department reviewed the case.

The Manitoba government then stayed the charges against Driskell, saying it wasnot likely Driskell would be convicted again. The stay keepsDriskell out of prison but does not officially exonerate him in the eyes of the law.

The inquiry report recommended eliminating the practice of using a stay in such cases, rather than withdrawing charges.

"The entry of a Crown stay does leave residual stigma and is not a satisfactory final remedy," LeSage wrote.

He also recommended the federal government take part in a study to examine how a declaration of factual innocence could be made in such cases.

Driskell says report could help other wrongful convictions

At a press conference after the report's release, Driskell said his life has and continues to be a struggle, but the report will help put these things in the past.

Driskell says he was pleased to have received an apology from the justice minister, and he was happy with the conclusions of the report.

"The one that struck me the most was the fact that he recommends more reviews of Dangerfield's cases. And the fact that Jack Ewatski did withhold, since '98, information that could have helped me," Driskell said.

"There's guys inside that shouldn't be there, and they're going to be watching all the news that comes out... and their fight goes on."

Driskell said he was caught off-guard by the $250,000 payment, adding that for him, the battle has never been about money.

He said it is now time to move on with his life; he plans to move west and carry on "one day at a time."

Police toexamine notebook, disclosure policies

At a press conference after the report was released, Winnipeg Mayor Sam Katz expressed regret about what Driskell went through.

"I fully recognize and respect the importance within our democratic society the right of an accused to be presumed innocent until found guilty and to have the right to a fair trial," Katz said.

"James Driskell did not receive a fair trial and I wish to express my sincere regrets to Mr. Driskell for this."

Katz said the Winnipeg Police Service strives to uphold the law, and does its best to balance the desire to put criminals behind bars with the rights of accused to be treated fairly.

City officials said they would implement three of the recommendations that apply to the Winnipeg Police Service, including revising its notebook policy to ensure complete and detailed notes are taken and given to the Crown attorney.

A fourth recommendation to the police- that it expand its disclosure policy to include post-conviction disclosure- will be studied by the service, with a report expected in three months.

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Driskell report slams police, prosecutors | CBC News

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An inquiry's reportintothe James Driskell caseblames Winnipeg police and prosecutors for his wrongful murder conviction, saying "what happened in this case is just plain wrong." Driskell, 48, spent 12 years behind bars, convicted offirst-degree murder in 1991after hisfriend Perry Dean Harder was found shot to death in Winnipeg.Driskell always maintained his innocence and his conviction was eventually quashed by the federal justice minister.

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before he when to jail and  sentenced  for a crime he didn't do

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James Driskell was sentenced to 25 year to life for first degree murder .

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after being compensation for the crime of murder and getting $4 million dollar in damages . he spent 13 years in jail