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Justice

Justice advocate David Milgaard, imprisoned on wrongful conviction, dead at 69

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By Brenna Owen

David Milgaard, the victim of one of Canada’s most notorious miscarriages of justice, has died in an Alberta hospital after a short illness. He was 69.

James Lockyer, a Toronto-based lawyer who worked closely on the case and helped found the advocacy organization Innocence Canada, confirmed the death after speaking with Milgaard’s sister on Sunday.

His loss is “devastating for the family,” Lockyer told The Canadian Press.

Milgaard was only 16 when he was charged and wrongfully convicted in the rape and murder of Saskatoon nursing aide Gail Miller, who was stabbed and left to die in the snow in the early morning of Jan. 31, 1969.

He would spend 23 years in prison until his release in 1992.

In his later years, Milgaard helped raise awareness about wrongful convictions and demanded action on the way Canadian courts review convictions.

“I think it’s important for everybody, not just lawyers, but for the public itself to be aware that wrongful convictions are taking place and that these people are sitting right now, behind bars and they’re trying to get out,” he said in 2015.

“The policies that are keeping them there need to be changed. The wrongful conviction review process is failing all of us miserably.”

Lockyer said he and Milgaard met with Justice Minister David Lametti just over two years ago in Ottawa to push for the creation of an independent body to review claims of wrongful convictions.

“I think David’s legacy now is to follow through with that, call it the Milgaard legislation and let’s get it passed, let’s get that independent tribunal. We still don’t have it, but maybe this will put the spur into the Department of Justice to get on with it,” he said in an interview on Sunday.

The establishment of an independent criminal case review commission “to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed” is listed as the top priority in Prime Minister Justin Trudeau’s mandate letter for Lametti in December 2019. The objective is repeated in his mandate letter following the federal election last fall.

Lockyer said it’s up to Lametti to “get moving” on creating the commission.

“They owe it to David Milgaard and they owe it to the wrongly convicted across Canada.”

During their meeting in 2020, Lockyer said the minister asked Milgaard to sign a copy of the Tragically Hip album featuring the song “Wheat Kings,” which was inspired by his case.

Lametti posted a statement on Twitter Sunday, saying Milgaard was a tireless advocate for the wrongfully convicted who wanted to see the system change.

“I am deeply saddened to know that he will not live to see this happen,” Lametti wrote.

The minister added that he would keep his signed copy of the Tragically Hip’s album “Fully Completely” as a memory of Milgaard.

Milgaard and two friends had been passing through Saskatoon on a road trip when Miller was killed.

A year later, he was convicted of murder and sentenced to life in prison.

One of the youngest inmates, the 17-year-old was raped and attempted suicide. He was also shot by police during an attempted prison break.

“It was a nightmare,” Milgaard said in 2014. “People do not have much love and care inside those walls.”

Milgaard was released in 1992 after his mother, who fought relentlessly to clear her son’s name, pushed to get the case heard by the Supreme Court of Canada. The high court threw out Milgaard’s conviction and he was finally exonerated in 1997 after DNA tests proved that semen found at the crime scene didn’t match his.

A man named Larry Fisher was convicted in 1999 of first-degree murder in Miller’s death and sentenced to life in prison, where he died in 2015.

Lockyer said Milgaard’s late mother, Joyce, was “a hero in her own right.”

“The Milgaards have given us a lot, they’ve given Canada as much as any family could have given Canada,” he said.

Peter Edwards, a Toronto Star journalist who helped Joyce Milgaard write a memoir about her fight to see her son exonerated, recalled a moment that he said sticks out in his mind — when Milgaard visited the paper’s newsroom not long after he was released from prison in order to thank Edwards.

It was a rainy day, he said, and Milgaard wasn’t wearing a shirt because he wanted to feel the rain against his skin after missing it for so many years.

The Saskatchewan government issued Milgaard a formal apology and awarded him a $10-million compensation package.

The province also spent $11.2 million on a public inquiry into Milgaard’s wrongful conviction. The final report was released in 2008 with 13 recommendations to reform prosecution and policing in Canada. Among them was a suggestion that the federal government establish an independent review commission to examine claims of wrongful conviction.

Ron Dalton, co-president of Innocence Canada, said Milgaard could have “turned inward and been very soured on life, but he didn’t let that happen.”

He could have walked away from his advocacy after clearing his name, but he “chose to look over his shoulder at the people left behind, the people who were going through suffering,” said Dalton, who was wrongfully convicted and later exonerated in his wife’s death more than 30 years ago.

Milgaard leaves behind two teenaged children, he said in an interview.

Lockyer said he had visited Milgaard at his home in Calgary about six weeks ago and “he was his usual happy self,” talking about the need for an independent commission and current claims of wrongful conviction in Canada.

When he heard about Milgaard’s death on Sunday, Lockyer said he was just leaving a prison in British Columbia, where he had been visiting with a woman whose wrongful conviction claim Milgaard had referred to him.

“I’m going to carry on doing what David wanted me to do, so there’s a legacy too.”

This report by The Canadian Press was first published May 15, 2022.

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International

‘Revolutionary’ high court term on abortion, guns and more

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By Mark Sherman in Washington

WASHINGTON (AP) — Abortion, guns and religion — a major change in the law in any one of these areas would have made for a fateful Supreme Court term. In its first full term together, the court’s conservative majority ruled in all three and issued other significant decisions limiting the government’s regulatory powers.

And it has signaled no plans to slow down.

With three appointees of former President Donald Trump in their 50s, the six-justice conservative majority seems poised to keep control of the court for years to come, if not decades.

“This has been a revolutionary term in so many respects,” said Tara Leigh Grove, a law professor at the University of Texas. “The court has massively changed constitutional law in really big ways.”

Its remaining opinions issued, the court began its summer recess Thursday, and the justices will next return to the courtroom in October.

Overturning Roe v. Wade and ending a nearly half-century guarantee of abortion rights had the most immediate impact, shutting down or severely restricting abortions in roughly a dozen states within days of the decision.

In expanding gun rights and finding religious discrimination in two cases, the justices also made it harder to sustain gun control laws and lowered barriers to religion in public life.

Setting important new limits on regulatory authority, they reined in the government’s ability to fight climate change and blocked a Biden administration effort to get workers at large companies vaccinated against COVID-19.

The remarkable week at the end of June in which the guns, abortion, religion and environmental cases were decided at least partially obscured other notable events, some of them troubling.

New Justice Ketanji Brown Jackson was sworn in Thursday as the first Black woman on the court. She replaced the retiring Justice Stephen Breyer, who served nearly 28 years, a switch that won’t change the balance between liberals and conservatives on the court.

In early May, the court had to deal with the unprecedented leak of a draft opinion in the abortion case. Chief Justice John Roberts almost immediately ordered an investigation, about which the court has been mum ever since. Soon after, workers encircled the court with 8-foot-high fencing in response to security concerns. In June, police made a late-night arrest of an armed man near Justice Brett Kavanaugh’s Maryland home, and charged him with attempted murder of the justice.

Kavanaugh is one of three Trump appointees along with Justices Neil Gorsuch and Amy Coney Barrett who fortified the right side of the court. Greg Garre, who served as former President George W. Bush’s top Supreme Court lawyer, said when the court began its term in October “the biggest question was not so much which direction the court was headed in, but how fast it was going. The term answers that question pretty resoundingly, which is fast.”

The speed also revealed that the chief justice no longer has the control over the court he held when he was one of five, not six, conservatives, Garre said.

Roberts, who favors a more incremental approach that might bolster perceptions of the court as a nonpolitical institution, broke most notably with the other conservatives in the abortion case, writing that it was unnecessary to overturn Roe, which he called a “serious jolt” to the legal system. On the other hand, he was part of every other ideologically divided majority.

If the past year revealed limits on the chief justice’s influence, it also showcased the sway of Justice Clarence Thomas, the longest-serving member of the court. He wrote the decision expanding gun rights and the abortion case marked the culmination of his 30-year effort on the Supreme Court to get rid of Roe, which had stood since 1973.

Abortion is just one of several areas in which Thomas is prepared to jettison court precedents. The justices interred a second of their decisions, Lemon v. Kurtzman, in ruling for a high school football coach’s right pray on the 50-yard line following games. It’s not clear, though, that other justices are as comfortable as Thomas in overturning past decisions.

The abortion and guns cases also seemed contradictory to some critics in that the court handed states authority over the most personal decisions, but limited state power in regulating guns. One distinction the majorities in those cases drew, though, is that the Constitution explicitly mentions guns, but not abortion.

Those decisions do not seem especially popular with the public, according to opinion polls. Polls show a sharp drop in the court’s approval rating and in people’s confidence in the court as an institution.

Justices on courts past have acknowledged a concern about public perception. As recently as last September, Justice Amy Coney Barrett said, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.” Barrett spoke in at a center named for Senate Republican leader Mitch McConnell of Kentucky, who engineered her rapid confirmation in 2020 and was sitting on the stage near the justice.

But the conservatives, minus Roberts, rejected any concern about perception in the abortion case, said Grove, the University of Texas professor.

Justice Samuel Alito wrote in his majority opinion that “not only are we not going to focus on that, we should not focus on that,” she said. “I’m sympathetic as an academic, but I was surprised to see that coming from that many real-world justices.”

The liberal justices, though, wrote repeatedly that the court’s aggressiveness in this epic term was doing damage to the institution. Justice Sonia Sotomayor described her fellow justices as “a restless and newly constituted Court.” Justice Elena Kagan, in her abortion dissent, wrote: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”

In 18 decisions, at least five conservative justices joined to form a majority and all three liberals were in dissent, roughly 30% of all the cases the court heard in its term that began last October.

Among these, the court also:

— Made it harder for people to sue state and federal authorities for violations of constitutional rights.

— Raised the bar for defendants asserting their rights were violated, ruling against a Michigan man who was shackled at trial.

— Limited how some death row inmates and others sentenced to lengthy prison terms can pursue claims that their lawyers did a poor job representing them.

In emergency appeals, also called the court’s “shadow” docket because the justices often provide little or no explanation for their actions, the conservatives ordered the use of congressional districts for this year’s elections in Alabama and Louisiana even though lower federal courts have found they likely violated the federal Voting Rights Act by diluting the power of Black voters.

The justices will hear arguments in the Alabama case in October, among several high-profile cases involving race or elections, or both.

Also when the justices resume hearing arguments the use of race as a factor in college admissions is on the table, just six years after the court reaffirmed its permissibility. And the court will consider a controversial Republican-led appeal that would vastly increase the power of state lawmakers over federal elections, at the expense of state courts.

These and cases on the intersection of LGBTQ and religious rights and another major environmental case involving development and water pollution also are likely to result in ideologically split decisions.

Khiara Bridges, a professor at the University of California, Berkeley, law school, drew a link between the voting rights and abortion cases. In the latter, Alito wrote in Dobbs v. Jackson Women’s Health Organization that abortion should be decided by elected officials, not judges.

“I find it to be incredibly disingenuous for Alito to suggest that all that Dobbs is doing is returning this question to the states and that people can battle in the state about whether to protect fetal life or the interest of the pregnant person,” Bridges said. “But that same court is actively involved in insuring that states can disenfranchise people.”

Bridges also said the outcomes aligned almost perfectly with the political aims of Republicans. “Whatever the Republican party wants, the Republican party is going to get out of the currently constituted court,” she said.

Defenders of the court’s decisions said the criticism misses the mark because it confuses policy with law. “Supreme Court decisions are often not about what the policy should be, but rather about who (or which level of government, or which institution) should make the policy,” Princeton University political scientist Robert George wrote on Twitter.

For now, there is no sign that either the justices or Republican and conservative interests that have brought so many of the high-profile cases to the court intend to trim their sails, Grove said.

That’s in part because there’s no realistic prospect of court reforms that would limit the cases the justices could hear, impose term limits or increase the size of the Supreme Court, said Grove, who served on President Joe Biden’s bipartisan Supreme Court commission on court reforms.

___

Associated Press writer Jessica Gresko contributed to this report.

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Alberta

Alberta judge finds man guilty of manslaughter in death of one-year-old son

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By Daniela Germano in Edmonton

An Alberta judge has found a man guilty of manslaughter in the death of his one-year-old son as well as of assaulting his young daughter.

The man’s lawyer argued in court that the father should be found not criminally responsible for his son’s death in November 2019.

Rory Ziv argued that a severe sleep disorder put the man from Fort Saskatchewan, Alta., in a state of automatism, which made him incapable of understanding his actions when he killed his son and injured his daughter, who was five at the time.

There is a publication ban on identifying the girl because she is a minor.

The man testified at trial that he has no memory of hurting his children, saying he fell asleep on the couch while caring for them. He said he dreamt he was being attacked and awoke to find that he injured his children.

A sleep expert also testified at trial after examining the man two years following the boy’s death. Dr. Colin Shapiro said he found “thumbprints” of parasomnia, a disorder in which people do things while asleep that they are unaware of, such as sleepwalking.

Shapiro testified he saw multiple arousals during the man’s deep sleep.

The man was initially charged with second-degree murder, but the prosecution asked the judge to consider a verdict of manslaughter instead.

Crown attorney Sandra Christensen-Moore said at trial earlier this month that evidence suggested the man was intoxicated at the time of the attack, which would affect his ability to form the intent needed for second-degree murder.

In announcing his verdict Wednesday, Justice John Henderson said it was more likely that the accused was suffering from severe withdrawal symptoms from his opioid addiction and lashed out at his children.

Court heard that the man has a history of substance abuse with cocaine, alcohol, heroin and prescription opioids. He admitted to self-medicating his back pain with heroin and illegally obtained Percocet.

Henderson said the man got into an argument with is partner the day of his son’s death and threw a plate in the woman’s direction because they did not have enough money for him to buy cigarettes.

“Certainly there is no doubt on the evidence that (the man) was having serious sleep difficulties and serious back pain at the time of these events,” the judge said.

“I’m also satisfied that the evidence is very clear that he was experiencing other stressors, including financial issues and relationship issues. He was also experiencing significant symptoms of heroin withdrawal.”

But Henderson said the defence was not able to prove that the man was in a state of automatism when he attacked his children.

“While I am satisfied that there is some evidence that could potentially support the conclusion of automatism, when I consider the totality of the evidence, I find it is not possible to come to that conclusion.”

The father is to be sentenced at a later date.

The judge said the man, who was prone to explosive outbursts, adapted his story about what happened the day of his son’s death as a way to rationalize his behaviour.

Henderson said such rationalization was most evident in the “evolving story” of the man’s dream of being teleported and attacked by a shadow creature during which he was trying to protect his children.

“This story did not exist for more than one year after (the boy’s) death and it only began evolving thereafter.

“The story was crafted to satisfy a narrative that would lead to a conclusion of automatism.”

Henderson noted that a forensic psychologist testified that the man had unresolved anger issues.

The judge said the man became overwhelmed by his situation and burst out in an aggressive and disproportionate manner when striking his children.

“I conclude that this explanation is for the attack is much more likely than the conclusion of automatism.”

This report by The Canadian Press was first published June 29, 2022.

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