Supreme Court will not hear Fisher appeal

August 26, 2004 

Larry Fisher leaves court in this 1999 file photo. (CP/Jeff McIntosh)

OTTAWA (CP) - The man convicted of the brutal murder and rape that kept David Milgaard wrongfully imprisoned for 23 years will not be able to appeal his case to the Supreme Court of Canada.

The court, as per custom, did not give reasons for its decision Thursday to dismiss Larry Fisher's appeal application. The decision clears the way for an inquiry planned by the Saskatchewan government into what went wrong in Milgaard's case.

Public hearings could begin some time after September, but likely wouldn't start until some time in 2005, said inquiry officials.

If the court had agreed to hear Fisher's appeal, the inquiry would have been postponed until the process was concluded.

Fisher was convicted in 1999 of the first-degree murder of Gail Miller, a 20-year-old Saskatoon nursing assistant who had been raped and repeatedly stabbed 30 years earlier.

Fisher lost his first appeal in September 2003 in the Saskatchewan Court of Appeal.

Fisher's lawyer, Brian Beresh, had argued that his client's trial was flawed by the admission of evidence that Fisher raped three other women, the testimony of a DNA expert and the trial judge's charge to the jury.

He also contended that statements the trial judge made about Milgaard led the jury to disregard the idea that he could still be guilty.

But the appeal court said Justice Gerry Allbright did not err when he decided to admit fact and DNA evidence, as well as evidence from the rape victims.

Milgaard was a 16-year-old passing through Saskatoon when Miller was killed. Her bloody and partially clad body was found in an alley on Jan. 31, 1969. Her throat had been slashed, she had been stabbed 27 times and she had been raped.

Milgaard's spent his entire young adulthood behind bars before finally being exonerated by DNA evidence in 1997 -the same evidence that convicted Fisher.

Semen stains were left on Miller's dress and underwear and blood consistent with Fisher's DNA was also found on Miller's glove.

At Fisher's trial, court heard the odds were 950 trillion to one that the semen wasn't his.

But in front of the Appeal Court, Beresh argued the expert who gave that number was not qualified to do so and the judge should have pointed that out to the jury.

Meanwhile, the Saskatchewan government awarded Milgaard $10 million for his wrongful conviction -the biggest criminal compensation package in Canadian history.

The province has also called an inquiry into Milgaard's conviction to determine what went wrong. It is expected to last three months and cost about $2 million.