Calling him Names,
Peter Timusk,
Carleton University, 53.388, summer 2002,
Due July 31st, submitted July 29th, 2002.
Wrongful Conviction and the Labeling Approach in the David Milgaard Case.
How does the state apply labels to those wrongfully convicted? Labels are theorized to cause a change in role for those labeled, such that those labeled as criminals may actually become criminals. But does this happen when someone is innocent? Certainly, David Milgaard whose case of wrongful conviction is well known, never accepted the label that was applied to him ( Karp C. & Rosner C., 1991, p. 119).
Various state actors including the police, the Crown, Attorney Generals and Ministers of Justice use labels to effect their roles in the legal process. This paper examines these roles from the perspective of the labeling approach in the case of David Milgaard. In particular, the role of the police in the David Milgaard case is studied.
The labeling approach applies also to the reaction others have to those labeled. First, someone is breaking the rules and then someone is applying a label of deviant on the rule breaker. In a short book on the labeling approach written in 1971, three audiences are theorized to react to labeling (Schur E. M.,1971, p. 12 ). The first audience would include David's family and in particular his mother who also never accepted the label ( Karp C. & Rosner C., 1991, pp. 70 & 104-105 & 130 & photo caption). The second would be the public in general. The third is the audience of official and organizational agents of control (Schur E. M., 1971, p. 13), referring to the police and other legal officials. Let's start with the Milgaard case by examining the collection of evidence and, of course, identify the police and their values at the time of the crime and the supposed deviant behavior by Milgaard.
When the murder of the nursing student Gail Miller occurred, in 1969, in Saskatoon, the Chief of Police of Saskatoon was a conservative traditionalist who scorned hippies ( Karp C. & Rosner
C., 1991, pp.47-49). David happened to be a hippy ( Karp C. & Rosner C., 1991, pp. 28 & 56 ). The use of this 'hippy' label may have contributed to the errors in this case. David's friends at the time the crime occurred were also hippies. They faced charges for various petty crimes that hippies tend to face from the authorities. His friends were into getting high and committing petty robberies ( Karp C. & Rosner C., 1991, pp. 58 - 61, & 63). The police and Crown Attorney manipulated Milgaard's friends into giving as evidence false eyewitness accounts that would bring in a guilty finding in his case ( Karp C. & Rosner C., 1991, pp. 58-67 & 74-83 & 86-92).But was the labeling David Milgaard a hippy the real bureaucratic error in his case? One police officer in charge of evidence collected what he though was semen samples four days after the murder ( Karp C. & Rosner C., 1991, pp. 23-24). This would be the forensic evidence used to implicate Milgaard. Later in his, Section 690 of the Canadian Criminal Code, application, this evidence would be looked at again by other forensic experts and found to be dog urine ( Karp C. & Rosner C., 1991, p. 24). Also, the way this evidence was connected to Milgaard in the original trial was erroneous ( Karp C. & Rosner C., 1991, pp. 83-86). So not only was this evidence collected incorrectly ( four days after the murder occurred), it was used in a misleading way in court ( Karp C. & Rosner C., 1991, pp. 83-86). So this forensic evidence was used to support the initial hippy label by extending this label that should have meant something like free love to one that meant a violent rapist. This is how the police's values twisted the label and the truth. We will examine the label hippy and its evaluation and use by the police again later. But for now it is enough to know that a forensic evidence error was made.
In other words, more errors were made to continue the labeling of Milgaard as the guilty party.
This is an example of an error typical of wrongful conviction cases where often errors in these cases, work to reinforce each other (Huff C. R., Rattner A. & Sagarin E.,1996, p. 66). I must assume this is a result of the adversarial process. Claiming that the police in these cases are over zealous I think misses, the fact, that our system depends on the adversarial process. This process drags the police forwards towards the trial. We may wish that some improvements be made to allow the police to think laterally in these cases and find the true culprit.The most common error is the eyewitness error in these cases of wrongful conviction (Huff C. R., Rattner A. & Sagarin E.,1996, p. 66). Let's turn our examination to this type of error in the Milgaard case. The police it will be seen created these errors themselves.
The finger pointing at Milgaard started with the use of a reward ( Karp C. & Rosner C., 1991, p. 51). This, combined with the actual murderer living in the basement, of one of Milgaard's friend's house, allowed his friend to implicate Milgaard even though he was totally innocent. This neighbor of the true murderer was the first eyewitness and the bureaucratic mistake was allowing a reward for information about the crime ( Professor D. T. Davies, 53.388 lecture, July 2002). Other friends also became eyewitnesses.
But how can these events be interpreted from the labeling perspective. The authors of When Justice Fails look at the first eyewitnesses subsequent mental illness. ( Karp C. & Rosner C., 1991, pp. 82-83 & 152). I see instead, a group of young hippies who may not have been aware of certain things in their visual environment, such that the eyewitness accounts they gave were in no way trained observations. The label the police applied to Milgaard was not applied to his friends thus their reliability as witnesses was not in question. While they may not have been stoned people during the crime they were during the critical time of the investigation and questioning ( Karp C. & Rosner C., 1991, pp. 60 & 63) and this may have defined how they saw things and their perspective on crime and law. Their drug and alcohol use certainly had a barring on their dependability as witnesses.
The Western Provinces have a reputation as being conservative. The youth movement was at its peak in 1969 in North America. The police were keen to act against this movement ( Karp C. & Rosner C., 1991, pp. 48 & 49), but many officials I believe had yet to understand drug abusers and the affects drug use has on the mind. Also, as drug laws were covered under "morality laws", the police were likely to see drug users as immoral. However, in offering a reward to one eyewitness and later reduced sentences for two other eyewitness accounts from so-called friends of Milgaard, the police did not consider morality. Hippies will double cross each other it seems. This shows that, yes these youth lacked certain morals like loyalty and honesty. So why did the police depend on their testimony if they saw these youth as immoral hippies?
This seems to point again to the adversarial process and the core legal reasoning in an investigation, charge and trial. Perhaps consistent application of labels would improve police work. Two thieves are two thieves not one guilty party and one witness.
I would put the blame on the police because they were pressured to solve the crime ( Karp C. & Rosner C., 1991, p. 23). It seems to me that we use labels when we are in a bind and when we are pressured. We swear when angry.
I would say that current labels that we should be careful with are "rapper", "raver", "anarchist", "protester", "activist" and probably many more. I personally don't think that the older generation always needs to make mistakes or twist the meaning of labels applied to youth. By committing ourselves to true understanding of each other and in particular those who are 'other' to our own way of life, we can as future law enforcers avoid making the types of mistakes with labels made in the Milgaard case.
References
Karp C. & Rosner C., (1991). When Justice Fails. Toronto, McClelland & Steward, Inc.
Schur E. M. (1971). Labeling Deviant Behavior. New York, New York University.My thanks to Michelle Theriault, University of Ottawa Criminology student, for discussions about labeling theory in wrongful convictions and resources dealing with criminology.
Huff C. R., Rattner A. & Sagarin E. (1996). Convicted but Innocent. Thousand Oaks, Sage Publications.
My thanks to Laura Brawn, my learning assistant in the Paul Menton centre, Carleton University, for proofreading an intermediate copy of this essay. All errors remain mine.
This Page Last Updated August 5th, 2002.
