The Driskell Inquiry: The Defence Never Rests
Hands up everyone who knows the terms of reference of the Driskell Inquiry.
Hmmm. Thought so.
Maybe we need to review them, in the words of Commissioner Patrick LeSage:
This is not a re-trial, a re-hearing of the Driskell murder trial, it is an inquiry to look into the conduct of Crown Counsel who conducted and managed the trial of James Driskell, and the subsequent appeal and departmental reviews of his conviction, and consider whether that conduct fell below the professional and ethical standards expected of prosecutors at that time.
Secondly, to inquire into whether the Winnipeg Police Service failed to disclose material information to the Crown before, during, or after James Driskell's trial, and if so, to consider whether the non-disclosure contributed to a likely miscarriage of justice in the prosecution against him.
Examine the conduct of Crown Attorney George Dangerfield? Check.
Examine the conduct of the Winnipeg police? Check.
The evidence at the inquiry so far shows there's something else that needs to be examined, but which isn't being addressed.
How far can the defence go to interfere with a prosecution?
Defence attorney Greg Brodsky knew that if he was to get Jim Driskell off on a charge of first degree murder, he had to discredit the chief witness, Ray Zanidean. And he knew Zanidean had a weak spot.
In 1990, Zanidean had burned down his sister's house in Swift Current in a spot of arson. He knew that because his client, Driskell, had been Zanidean's accomplice.
About a month before the murder trial was to start, Brodsky sent a Private Investigator in his pay to Swift Current to talk to the RCMP there. The PI, Brian Savage, was ex-Mountie and would have the necessary rapport for the pitch Brodsky wanted to make.
Savage brought with him an offer---- Driskell was prepared to rat on Zanidean for the arson.
But first, irony of ironies, Driskell wanted immunity. (A large part of the inquiry is over whether Zanidean was given immunity from the arson charge to testify against Driskell, and whether Brodsky knew about it.)
Brodsky was upfront at the Driskell Inquiry. He had wanted to get Zanidean charged with arson to undermine his testimony. He planned to challenge Zanidean about the Swift Current arson, but he wanted something official to back him up.
He said he "needed the RCMP to say that what Mr. Driskell was telling me, that it was a commercial fire arson, that they did it for money, and the true circumstances, I needed confirmation from the RCMP in order to attack Mr. Zanidean."
To say the RCMP were intrigued is an understatement. By then they knew (but Brodsky didn't) that Zanidean had confessed to Winnipeg police that he was behind the fire in Swift Current. They had a good circumstantial case that the fire was part of an arson insurance fraud, but their prime suspect, Zanidean's sister, had passed a polygraph test.
They were waiting until after the Driskell trial to see what to do about Zanidean and his evidence. Now, they didn't need him. They could go after Zandean's sister, or even against her and Zandidean together.
But Savage was like Santa Claus. He had even more goodies to offer.
There was a body pack tape recording containing damning evidence to corroborate Driskell, he told the arson investigators.
Driskell had worn the body pack at a meeting with Zanidean and a transcript would show Zanidean complaining he hadn't been paid by his sister for the arson. The Swift Current RCMP could have it all--- if they charged Zanidean before the trial.
Boy, was that tantalizing to the Mounties.
What they didn't know at the time, was that Savage's body-pack story was--- how can we say this charitably--- a crock. There was no such tape.
The prosecution back in Winnipeg did have a bodypack tape -- made by Zanidean, not Driskell. He had worn the bodypack to a meeting with Driskell's brother, Ron.
The tapes (there were two) had some references to money owed, but, wouldn't you know it, the only person who could apparently decipher those references was Jim Driskell.
The body pack tapes are an important element in the inquiry, much more than you'd know from just the MSM coverage so far.
The Ewatski/Hall report on the Driskell case contains this reference:
"We conducted an interview of Burton and he gave us a brief review of his involvement in this matter. We concluded that some of his opinions he expressed in his written reports were based on inaccurate information that was obtained not from the investigating officers but other sources such as the PI hired by Mr. Brodsky."
It's likely they're referring to the erroneous information about a body pack recording allegedly made by Driskell.
At the Driskell Inquiry, lawyer Richard Wolson, representing the Winnipeg police, began leading evidence about what was said on the real body pack recording.
He was comparing the actual words spoken with how Driskell interpreted them to the Swift Current RCMP. His exchange with then Cpl. Ross Burton, the lead investigator in the arson case, went like this:
Q Now, the body pack was, of course, something that you had wanted because you thought that that might give you evidence that there was a perjury by Zanidean, or at least that it would confirm your financial theory that the arson was motivated for financial reasons, that's why you wanted to see the body pack; right?
Q All right. And let me read, then, the preceding sentence, which is the first sentence that has anything to do with the alleged arson in particular:"They can't link us to that house in Swift Current. They couldn't." Zanidean says that, right?
Q So they are talking about Swift Current?
Q And then if you just go down the page, Zanidean says:"That bitch deserved it..." He is obviously talking about his sister,right?
A. I would assume.
Q "...that's all I can say. She fucked, she fucked me out, I'm upset she fucked me." And then the comment by Mr. Driskell: "She still never squared away with ya." And Zanidean said: "No, she is a crooked heart." Do you see that?
Q And that's evidence that you would say that there is a financial issue going on here?
Q If there was a financial problem issue: "The bitch deserved it, that's all I can say, she fucked me, she fucked me out, I'm upset she fucked me." Those words are consistent with revenge, I take it, you would agree?
A I mean, they are what they are. I don't --
Q Do you know whether the words: "She never squared away with me..."pertain to a financial arrangement? Do you know?
A I mean, that's the evidence. I don't want to interpret it. It's there. I don't think that that's my place.
Q And going on down the page, which is another excerpt from another conversation:
"Driskell: Yeah. Yeah. Find out the hard way.
Zanidean: Yeah, cause one of the shortage, one for you, seven for me, so I'm short $800."
That would -- do you say that refers to the arson?
A I'm saying it appears to.
Q And that's only because you had Driskell's statement, Mr. Driskell's statement which referred you to that, right?
A Referred to those amounts, correct.
Q That statement you didn't provide to the Winnipeg Police Service, to Sergeant Anderson,did you?
A I said I don't know if it was provided by Justice, because that was way above my head, was what I said yesterday.
Q But in order to know what that meant, in order to know what that meant, you would have to really have Driskell's statement, wouldn't you?
A I don't know. There may be other evidence out there that would help someone understand that. I can't comment on those matters.
Q But you're interpreting that with the aid of Driskell's statement, aren't you?
A That might be my take. But for me to say that's the case, I wasn't the judge at the trial. And I am really uncomfortable with being asked to make those kind of findings.
MR. CODE: Could I submit that we are getting entirely away from the terms of reference here?
Obviously, Burton wasn't the only one uncomfortable with a discussion about what was actually on the body pack tapes, for Inquiry Counsel Michael Code and Commissioner LeSage shut down further discussion right quick.
It's also important to note that the original announcement by the Province of Manitoba setting up an inquiry into the Driskell case said that the perjury allegations against Zanidean would be investigated by an outside force.
What to make, then, of the red-faced admission last week that because of a communications mix-up (yeah, that's what it was) the perjury allegations have not been examined by anyone, and likely won't for a long, long time to come.
A cynic might say it would look very bad for everyone concerned if a report had come back in the middle of the Inquiry saying there was no evidence to support a criminal charge of perjury. And what better way to ensure that didn't happen, than to sit on the alleged "independent" investigation of the perjury allegations until AFTER the Inquiry. Just asking.
Whew, that was quite the diversion. Now back to the main narrative.
Remember, Defence lawyer Greg Brodsky wanted to derail the prosecution of Jim Driskell by arranging for Swift Current RCMP to charge the chief prosecution witness, Ray Zanidean, with arson, right before the trial was to start.
Jim Driskell would testify against Zanidean and confirm the Saskatchewan police theory that the arson was part of a fraud scheme involving Zanidean and his sister. His testimony would allegedly be corroborated by a body pack tape recording Driskell made of Zanidean admitting key details of the fraud.
(Driskell was willing to take the stand before a jury in Saskatchewan, but not willing to testify on his own behalf at his trial for murder. Hmmm.)
What we don't know is whether Brodsky's emissary, PI Brian Savage, accidentally got his facts about the body pack tape wrong, or whether he deliberately tried to mislead Saskatchewan RCMP. This is one part of the Driskell case the Inquiry doesn't want to explore.
In any event, Savage had to come home empty-handed. The RCMP said they couldn't cut through the red tape fast enough to interview Driskell before his trial.
Undaunted, Greg Brodsky already had Plan B in the works.
He had learned that Zanidean had a lawyer. And a lawyer meant a deal. He just didn't know what kind of a deal. So he went directly to the source to find out.
Brodsky showed up at the home of lawyer David Kovnats, who was Zanidean's lawyer. Kovnats was negotiating to get Zanidean into the RCMP's Witness Protection program. Kovnats told Brodsky that his client still wasn't in the program.
James Lockyer, the lawyer representing James Driskell, questioned Kovnats about the Brodsky visit.
Q Yes. Did it occur to you that Mr. Brodsky may not have been well informed, if informed at all, about what was going on with Mr. Zanidean and the negotiations, and as well with regard to what had happened in the preceding days?
A He seemed to have much more knowledge than I did.
Under other circumstances, this might be considered a blockbuster comment. What exactly did Brodsky know? Why did Kovnats feel the defence knew more about the witness protection negotiations (and maybe immunity) than Zanidean's own lawyer? Was there a leak in the Crown Attorney's office?
Not to worry. We'll never know.
Lockyear ignored the statement and shifted his questioning to George Dangerfield, aka Public Enemy #2.
The Press, needless to say, looked the other way.
Back in Kovnats's office, Brodsky went to Plan C. He asked if he could speak to Zanidean before the trial. Kovnats said he'd pass the request along.
Now, you can imagine how that went down.
Here's Zanidean, being hidden in safe houses around the country because he's convinced his life is in danger, and here comes his lawyer with the news that Driskell's lawyer wants to find him and talk to him. Maybe it was the knowlege that Perry Dean Harder disappeared before he was supposed to testify against Jim Driskell, and was later found in a shallow, unmarked grave, but a meeting with Brodsky never took place.
Zanidean testified and Driskell was convicted. And Brodsky revived Plan A (slightly revised). This time he wanted the RCMP to charge Zanidean with arson so that Brodsky could get the murder conviction overturned on grounds of "new evidence."
Staff Sgt. Ronald Ferguson came to Winnipeg and interviewed Driskell. He took an unsworn statement which could not be used against him in court. At the same time, the Swift Current officers knew they were being played like a fish.
Here's how its described in a contemporary report written by Sgt. Tom Orr, who handled witness protection. Former Cpl. Ross Burton is being questioned at the Inquiry.
Q "According to Ross Burton, Swift Current detachment, Brodsky is forcing the RCMP to investigate the arson, to force a new trial, as they are claiming Zanidean perjured himself on the stand. Driskell has apparently received immunity from prosecution due to his life sentence on the murder charge."
Did you make those comments to him? That it's Brodsky whose forcing your hand, Swift Current's hand, in investigating the arson?
A I don't recall speaking with Tom Orr and I have no record of it.
Brodsky had put the fear of God into the Swift Current Mounties.
They got the message loud and clear. If they didn't charge Zanidean with arson, it would look like a cover-up. So starting in July, 1991, days after Driskell was convicted, the arson RCMP began lobbying like mad for charges.
They peppered their divison with memos and meetings. They did everything except start building a gallows and put out a tender for ropes. To no avail.
As it turned out, Justice officials in Saskatchewan scotched the arson investigation. Zanidean's immunity would stand. Driskell wouldn't get any. And nobody got charged.
And Brodsky had to admit he got snookered by David Kovnats. A real estate lawyer, for crying out loud.
But it wasn't for lack of trying.
How far can the defence to interfere with a prosecution?
The Driskell Inquiry doesn't want to know.