True but False: Driskell Inquiry like Alice in Wonderland
The Driskell Inquiry has reconvened to parse the English language to come up with a solution to how a man convicted of murder by a duly empanelled jury of 12 citizens can be declared "innocent."
The Inquiry has taken on an Alice In Wonderland quality where words have the opposite meaning. The press says nothing about the Stalin-show-trial aspect of Manitoba judicial inquiries because they have a stake in the predetermined outcomes. In the Soviet Union, Uncle Joe pinned a medal on your chest; in Manitoba, you vie for journalism awards.
But the MSM are humiliating themselves just as surely as CBS Faker Dan Rather did two years ago.
Rather used forged documents to manufacture a big story. When exposed by the Blogosphere, he created a new journalistic standard for news---fake, but accurate.
Far from repudiating him, the news media has adopted 'fake, but accurate' as a valid tool. We saw it in Lebanon when, once again, bloggers easily exposed an AP photographer's Photoshopped pictures which had been used by newspapers around the world --- without a single photo editor challenging them.
Fake but accurate. What's a little enhancement if needed to tell the bigger story, eh?
The Driskell Inquiry loved the idea so much, that it's doing the same thing, only with a twist. Here the inquiry is proceeding under the test of 'true, but false.'
There was something obstructing the Inquiry from reaching the predetermined outcome---facts.
So, they decided to simply rewrite the meaning of truth. Now, nothing is true -- unless it supports the premise of the inqury, that James Driskell was railroaded.
Look how carefully they crafted their terms of reference, to cover every conceivable angle, and still leave room for the Commissioner to apply his "discretion" to find the witnesses with a bullseye on their chests guilty of misconduct.
The third area of factual inquiry is whether Zanidean's sworn testimony at the trial, especially on those first two issues, but not exclusively on those first two issues, was that sworn testimony materially false, incomplete, or misleading in such a way that there was an ethical obligation on Crown Counsel to correct the false, incomplete, or misleading evidence.
Although the main focus here is on the first two issues, the financial benefits and the charge immunity benefits, we want to stress that the focus is not exclusively on those areas. For example, Zanidean's testimony about the Swift Current arson itself is relevant to the third aspect of the inquiry.
Inquiry counsel Michael Code, armed with the best weapon he could have, the exclusive definition of "truth", came gunning for retired Crown Attorney George Dangerfield.
You see, a commission set up to find that James Driskell was not given a fair trial, can't be successful unless you can impugn the prosecutor whose job it was to see that he got that fair trial, can it?
But before examining the travesty of Dangerfield's examination, a little background is needed.
* In July, 1990, Reath (Ray) Zanidean came to the Winnipeg homicide division to say he had some information they could use to prosecute James Driskell for the murder of Perry Dean Harder.
Zanidean was to become the chief witness in a case built on mainly circumstantial evidence.
During one of the earliest interviews with detectives, he told them he would have a problem if they put him on the stand.
* He had, he said, been involved in an arson in Swift Current earlier in the month. He had a beef against his sister, and had set fire to her house, knowing she had no insurance.
The police and the Crown did everything they could think of to make sure that the evidence against Driskell was not tainted. At this stage, the detectives immediately told Zanidean: tough luck. They couldn't help him with his arson matter, and they would be telling Swift Current RCMP what he told them.
They told him that the only thing they could promise him was protection.
And Zanidean wanted that. By everyone's account, he was terrified of James Driskell.
* Police put a 24-hour guard around Zanidean. But in December, he complained that his house had been visited by associates of Driskell and a threatening letter had been left on his car windshield. Police moved him to a safehouse in Calgary.
* In the meantime, Winnipeg police asked their fellow policemen in the RCMP in Swift Current for a favour. Could they hold off on investigating Zanidean for the arson until after the trial?
The RCMP agreed. It wasn't a hard decision.
He wasn't their main suspect; they wanted to nail his sister for arson fraud and had built up a good circumstantial case which only lacked a final piece of evidence, like a confession. They had no evidence against Zanidean other than his own words to Winnipeg detectives.
* But Zanidean was a handful. He was high strung and got into fights with his police handlers. They knew this wasn't going to work. So by March a decision was taken to get him into the official national Witness Protection Program.
In an excess of caution, the Manitoba prosecutions branch decided that all negotiations to get Zanidean into the Witness Protection Program would be conducted without prosecutor George Dangerfield's input, to isolate him from any suggestion that he helped pay off Zanidean for his evidence.
Crown Attorney Bruce Miller (now deceased and thus an easy target) handled most of the negotiations, with final approval needed from Deputy Justice Minister Stu Whitley.
* The program is run by the RCMP. And a problem cropped up right away.
The Witness Protection Program won't be used to hide criminals from prosecution. So Zanidean wasn't eligible because he was a suspect in the Swift Current arson.
Once again, Winnipeg police turned to their RCMP colleagues in Saskatchewan. They had promised Zanidean protection and this seemed the only way to deliver. They asked Swift Current to consider waiving any further investigation of Zanidean so he could get into Witness Protection.
The RCMP, knowing how hard it is to get criminals to testify against one another, and recognizing that solving a property crime like an arson is less important than putting a murderer away, agreed, but with some provisos.
One, Zanidean had to enter the formal Witness Protection Program, and two, they would wait until after he testified to give the final okay.
* Zanidean had acquired a lawyer to negotiate the Witness Protection deal and he, the lawyer, was turning into a real drama queen with lists of demands, ultimatums, and threats.
George Dangerfield was kept out of the loop so he could concentrate on the trial. A big part of trial preparations was the process of disclosing to the defence what evidence the Crown had and planned to use.
* When defence attorney Greg Brodsky entered the case in April, 1991, he had a list of questions he wanted answered as part of the disclosure process, which continued until the trial in June. What he was looking for can be boiled down into three main categories.
1. He wanted to know what outstanding charges were dropped and/or what "favourable considerations" were given to witnesses where police did not press charges. And if there were "other matters that would influence them to testify in a particular fashion."
2. He wanted to know the details of the Witness Protection Programs for witnesses.
3. And he wanted to know what the Winnipeg police had in their files on the arson in Swift Current.
Brodsky knew the case against Driskell was circumstantial and he had a good chance of an aquittal if he could discredit the chief witness, Ray Zanidean. He figured the answers to his queries would give him the ammo he needed.
But he didn't like what he got.
* Dangerfield told him that no charges were dropped in connection with Zanidean, no deals were made not to level charges, and Zanidean wasn't being promised anything to sway his testimony.
This was all true.
Zanidean came on his own to police and offered testimony against Driskell so nothing was swaying his testimony.
There were no outstanding charges against Zanidean to drop.
And there were no deals not to charge him with anything in Manitoba.
* The Winnipeg police had no authority to influence any decisions in other provinces.
Yet even in Saskatchewan he was not facing any charges.
Nor were police holding off charging him in exchange for his testimony.
They agreed not to question him for the arson only if he entered the Witness Protection Program.
But to the Driskell Inquiry, true but false.
* Dangerfield was attacked for not telling Brodsky how Zanidean could confess to arson and not be charged. Brodsky was convinced there had to be some quid-pro-quo and despite evidence to the contrary, the Inquiry is designed to leave the impression there was.
Dangerfield told Brodsky that witness protection for Zanidean involved providing him with money to support him while he was being protected and constant surveillance over him.
The Crown wanted him in the RCMP-run Witness Protection Program but negotiations were complicated and there was no accepted deal until after the trial.
But to the Commission, Dangerfield's response to Brodsky was true, but false.
* According to the Commission counsel, Dangerfield should have kept Brodsky abreast of every development, each give and take of the negotiations, up to, during and after the trial.
It's a wonder Code didn't suggest Brodsky be asked to join the negotiations.
Of course, the final report hasn't been written yet.
* Brodsky especially wanted to know what was happening in regard to the arson in Swift Current. Brodsky needed to know why Zanidean wasn't being charged before the trial.
You see, Brodsky knew all about the Saskatchewan arson from Day One.
His client, Jim Driskell, told him everything. Driskell had been Zanidean's partner. He even drove him to Swift Current to set the fire. Brodsky didn't need to be told Zanidean set the fire. He wanted something more.
He wanted paper.
He wanted something on official police stationary.
He wanted a charge or a promise not to lay a charge, anything as long as it was an official police report that he could wave around in front of a jury.
So he kept pressing.
Except George Dangerfield was driving him crazy.
* Dangerfield never produced any paper. He verbally informed Brodsky that Zanidean had confessed to setting the fire, and that the RCMP in Saskatchewan had decided to do nothing with the information.
Arrrrggghhhh. How could this be? Brodsky had gone so far as to manufacture a case for the Swift Current RCMP. He had offered them James Driskell as a witness (with the proper immunity from prosecution for Driskell, of course.)
One conspirator testifying against another. What the hell more did they want?
Zanidean confessed. True.
The RCMP were not pursuing the case. True.
But, according to the Inquiry, true but false.
Dangerfield should have told Brodsky the police had a note in a notebook that Zanidean confessed. (Ahh, paper at last.) It wasn't fair to tell Brodsky only what he already knew, and without giving him paper.
Dangerfield should have breached the separation wall and forced himself into the Witness Protection negotiations to find out more details to tell Brodsky, said Inquiry counsel Michael Code.
How could Brodsky win an acquittal if the Crown doesn't give him the ammunition he needs?
* Since the inquiry is about why Driskell got wrongfully convicted, then surely you need to blame someone. And you can't blame the defence attorney, so you have to blame the Crown attorney for not doing the defence attorney's job.
The Inquiry says the Crown had to tell Brodsky what hadn't happened, and what, it would turn out, never happened. As long as they talked about it, he had to know all the details of what they were asking for, even if they were turned down.
When Zanidean testified, he didn't know he wouldn't be charged with arson.
The Winnipeg police decided not to tell him until after he gave his evidence.
You know, so nobody could say his testimony was bought by special favours.
Only after he was excused from the stand, did they give him the news. Even then, the police believed he was going into the Witness Protection Program, which was the only way it would happen.
* Except he never did. Which actually came as no surprise to the RCMP and lawyers involved in the negotiations. Because everyone knew he was a terrible candidate who would blow his new identify in no time.
So they negotiated a compromise. It would cost $30,000 to settle Zanidean and his wife in another city. Give him $20,000 cash and he'll disappear on his own, his lawyer said. No ties. No watchdogs. Deal done. Finally. After the trial was over.
(Surprisingly, it appears Ray Zanidean did disappear successfully. Who knew?)
The examination of George Dangerfield achieved its purpose. It destroyed the reputation of a respected Crown attorney in the cause of a false fairness.
Instrumental in this character assassination was the Winnipeg Free Press.
The newspaper splashed a banner headline across Page One:
Crown Knew Key Witness Lied.
On the left, a photo of Commission Counsel Michael Code.
Under him the quote: "You must have known this evidence was false."
Immediately to the right, a photo of George Dangerfield.
Under him, the quote:
The sub-head read:
George Dangerfield admitted yesterday he was aware of a deal with Ray Zanidean, but let him commit perjury on witness stand/ A4, A5.
On Page A5, another stark headline:
"Crown did nothing as witness lied"
over a story by Nick Martin, who wrote:
George Dangerfield admitted to the Driskell Inquiry yesterday that he sat by and did nothing while key witness Ray Zanidean lied at Driskell's murder trial about a deal in return for his testimony.
"You must have known this evidence was false, commission counsel Michael Code put to Dangerfield, Crown attorney at the 1991 trial.
"Yes," Dangerfield said quietly.
Would it surprise you to know the quotation is false?
Compare how the exchange really went:
Q. So again, you must have known this evidence was false?
A. He had already talked about going to the program, I believe, hadn't he? I can't remember his examination in chief.
Q. No, he says they are going to relocate him. You don't deal with it.
Q. All he says is they are going to relocate him. You see at line 14, he says: "I engaged a lawyer to take care of the Witness Protection program."
There was a time you risked getting fired if you faked a quote.
In the newspapers of today, there's another name for the practice.
Fake, but accurate.