The Black Rod

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Location: Winnipeg, Manitoba, Canada

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Tuesday, August 22, 2006

The Driskell Inquiry Testimony MSM Won't Report

Shakespeare said it best in As You Like It: "All the world's a stage, And all the men and women merely players..."

And we've seen some damn fine theatrics at the Driskell Inquiry these past five weeks.

The Inquiry is on hiatus for a few weeks but if Commissioner Patrick LeSage doesn't spend the interval writing his report before everyone is brought back he's wasting our money.

It's no secret what the final report will say.

That's the beauty of a show trial, you have the verdict first, then the trial. It saves so much time and effort that way.

Convicted already are Winnipeg Police detective Tom Anderson (ret.), Crown Attorney George Dangerfield (ret.) and Chief of Prosecutions Bruce Miller (posthumously). They've been found guilty of doing their jobs.

The irony is that of everyone at the Inquiry, the only person in all of Manitoba and Saskatchewan who cannot be blamed for anything, because all his sins have been forgiven, is James Driskell, the man convicted 15 years ago by a jury of first degree murder. Not even the revelation that he's a confessed arsonist is allowed to tarnish the halo the Inquiry endows his with.

Since the end result of the inquiry is a given, then the sole purpose of listening to witnesses is to convince the public that the advance verdicts are proper.

In this, the Driskell Inquiry can count on the full collaboration of the daily newspapers, both of which have a personal motive in the forgone conclusions.

The Winnipeg Sun wants the credit for being the first to raise questions about the fairness of Jim Driskell's trial. The paper scored a professional coup by seeing a series of stories by Heidi Graham in 1993 filed as exhibits in the Inquiry, a fact that strangely went unmentioned by the Winnipeg Free Press. These stories led to a review of the case by the police department which has been one topic in these hearings.

The Winnipeg Free Press has a stake in the Driskell Sweeps because of a series of stories by reporter Dan Lett in 2003 which preceeded the reopening of the case and the eventual order for a new trial. Lett won the 2003 National Newspaper Association award for investigative reporting for these stories.

With these honours on the line, the newspapers can be counted on to see what they want to see in the evidence and not see what they don't. And report accordingly.

The Black Rod, on the other hand, has no horse in the race and can freely tell the part of the story you won't read in the dailies.

Michael Code is the Commission counsel and thus acts as the prosecutor leading evidence.

In a typical trial, the prosecutor gives an opening statement to the jury to give them an overview of the evidence he expects to call and what he expects witnesses to say. He cautions them that they shouldn't take his word for it, but should listen carefully to the witnesses and see if they do, indeed, live up to their billing.

At the Driskell Inquiry, Code used his first witness to set the tenor of the hearings.

Ross Burton, now holding the rank of Inspector in the RCMP, was posted in Swift Current, Sask., in 1990. Then-Cpl. Burton was the lead investigator in an arson case when he got a call from Winnipeg police saying they had taken a statement from a witness who admitted he was the arsonist.

That man was Ray Zanidean, and he was the chief witness against Jim Driskell, who was about to be charged with first degree murder of Perry Harder.

Burton first cooperated with Winnipeg police, and agreed to hold off on his pursuit of Zanidean until after the murder case went to trial in June, 1991. But very shortly after the trial, he did a 180 and began banging the drums for charges to be laid against Zanidean immediately. He was overruled, but he never forgot the case that got away.

Then in 1993, he was interviewed by two senior Winnipeg police officers conducting a review of the Driskell case following the publicity of Heidi Graham's stories in the Winnipeg Sun. There might even be a public inquiry, they told Burton, who whipped up a series of self-serving cover-your-ass memos on the case (based on files many of which apparently no longer exist.)

In his review, he blames the Winnipeg police, and Det. Tom Anderson in particular for any screw-ups.

He said Anderson was deceitful and dishonest in his dealings with Burton; he said he believed Zanidean perjured himself at the trial and Anderson knew it, and, according to the police interviewers, Burton "suggested the Winnipeg Police Department had created a set of circumstances that would ensure the RCMP arson investigaton would be scuttled."

In other words, here was a witness, now a seasoned senior RCMP officer, and lawyer to boot, confirming what the Inquiry had set out to prove.

Guilty. Guilty. Guilty.

Code, however, perhaps swept up in the chase, was determined to hammer home the fact that Tom Anderson, aka Public Enemy #1, was a stinking liar.

Anderson wrote his own report on the case in 1991 (two years before Burton's CYA memos.)

At one point he noted two phone calls he made to Burton in April, 1991 over the issue of whether Swift Current RCMP would charge Zanidean with arson. This is a major issue at the inquiry.

Winnipeg police promised to protect Zanidean if he told them what he knew about the murder of Harder. That eventually lead to negotiations to put Zanidean into the RCMP-run Witness Protection Program. But they wouldn't take him if he had charges hanging over his head. The RCMP in Saskatchewan wanted to charge him with arson, but knew that would sour the Witness Protection plan, so everyone compromised. If Zanidean went into Witness Protection, there would be no arson charges.

When and If Zanidean knew about this deal is the subject of much contradictory testimony and the source of allegations of perjury.

Anderson described the calls in his report:

"During the first conversation I explained the dilemma, and I believe he had already spoken to Corporal Orr. In any case, he had given the matter thought and he immediately offered to withdraw their pursuit of Zanidean entirely. He explained that he had planned to interview James Driskell after the murder trial in an effort to gain evidence against both Zanidean and his sister, but that he would only charge his sister.

Approximately one week later I phoned Burton again to ensure that his proposal was agreed to by his superiors, and he assured me that his detachment commander had approved. And I reminded him that we would not make Zanidean privy to this arrangement until after he testified."

(Corporal Orr was the RCMP officer in charge of the witness protection program.)

Burton remembered the phone call (he recalled only one) this way:

"April 5th, call was received from Tom Anderson of Winnipeg homicide. He advised they wanted to put Ray Zanidean under the witness protection program as individuals associated to Driskell were actively trying to kill him at present."

"They had already located him at two locations where he was hidden. The witness protection coordinator in D division, advised that they would not hide Zanidean as long as the writer was actively investigating him with the possibility of charges pending...The matter was discussed with Tom Anderson. It was agreed that the only viable solution would be to not charge Zanidean... I advised Anderson that I would submit the above recommendation through channels."

The matter eventually reached the desk of one Inspector Preston, the divisional commander, who advised the Swift Current detachment to hold off until he talked to Orr and clarified the witness protection issue. His decision made it into one of Burton's internal reports:

"On April 16, 1991 Inspector Preston spoke with Corporal Orr who advised that Zanidean is now under the witness protection program and is out of province. After the trial he will be relocated permanently. In view of this, the only course of action open to us is to await the trial outcome and evaluate the situation then."

Code began a series of questions to suggest Anderson concocted the story of a second call and made up the story that Burton had the approval of his superior officer to lay off Zanidean. In other words, he was a stinking liar.

Q So I take it the part of this that you don't agree with is that he called you back to get assurance that you had approval from senior detachment commanders?
A That's right.

This was followed by a series of mocking questions aimed at proving that Burton was telling the truth and Anderson---well, you know--- was a stinking liar.

Q Do you have any report of a second call from Anderson where you informed him of Preston's decision?
A Oh, that second call, no.
Q Anderson says he calls you back and you assure him that your recommendation has been approved by your detachment commander. And what I'm asking you is, is that consistent with Preston's resolution of the matter?
A. No.

Q Look at tab 25.
A Okay.
Q Anderson's report. He says he calls you back. "He assured me that his detachment commander had approved," approved your recommendation to entirely bring an end to proceedings against Zanidean.
A I have no record of that, no.
Q And is that consistent with Preston's internal memo at tab A-35?
A No.

Q So, for you to say that to Anderson, you would have been contravening Preston's instructions?
A Correct.
Q Is that a wise thing for young constables to do, to be insubordinate to their superior officers?
A No.

Q Now. Again, if we look at the file to see the next steps that you took on it or the steps that you took in the intervening months. Have you found anything in the subsequent steps taken on the file after April that indicate that you had reached, and your divisional commander had reached, an agreement with Anderson to entirely end your pursuit of Zanidean?
A No.

Q And what was the steps that you were waiting for the Winnipeg police service to take?
A It would have been the interview of Ray Zanidean.
Q And is that file extension for that purpose consistent with an agreement to permanently and entirely end your pursuit of Zanidean?
A No.

Okay, it's not exactly Literature, but it is compelling nonetheless. It's also spectacularly wrong and misleading.

Det. Anderson, it's crystal clear, told the truth.

Burton said he got a call from the Winnipeg homicide officer April 5. Anderson said he called a second time a week later.

Let's see: one week is seven days; 5 plus 7 equals 12.

So, on or about April 12, Anderson called the second time. Burton met with Preston three days later, on April 15, along with Staff Sgt. Ron Ferguson.

And Ferguson was? The detachment commander of Swift Current detachment, Burton's boss, who, as Anderson recounted, agreed with Burton that they should stop chasing Zanidean and who went with Burton to see the divisional commander to pitch the idea.

Yet Code twisted the evidence (by asking about detachment commanders, plural, and mixing the divisional commander with the detachment commander) to confuse the inquiry, the press, and the public into believing that Anderson made up some cock-and-bull story that proved he was---you know it--- a stinking liar and guilty as sin of the wrongful conviction of Lil Jim Driskell.

We weren't the least surprised when Jay Prober, George Dangerfield's lawyer, complained openly later in the hearings about Code's misleading questioning of his client that made it sound as though Dangerfield was confessing to deliberately railroading James Driskell.

But one thing is clear as a result of the Driskell Inquiry so far. And that's the amazing benefit of long incarceration for criminals.

After spending 13 years in prison, Driskell emerged a new man.

Instead of the petty criminal, arsonist, and possible murderer, he was when he went in, he's become the paragon of virtue. A model citizen worthy of passing moral judgement on the Chief of Police. Crown attorneys pine for the opportunity to kiss his ring and get his blessings.

And if that ain't Shakespearean, then we don't know the Bard.

Next: The defence never rests.

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