Police made evidence fit the crime in convicting Kyle Unger: lawyer

Police investigating the sexual assault and killing of Brigitte Grenier in 1990 jumped to conclusions and set out to prove they were right, said a lawyer working for Kyle Wayne Unger, who was granted a new trial on Wednesday after a ministerial review of his murder conviction.

"The police formed a theory before they had evidence of it and then made the facts fit into their theory," said lawyer James Lockyer, a well-known advocate for the wrongfully convicted. "And that was fatal."

Federal Justice Minister Rob Nicholson announced Wednesday morning that a new trial has been ordered for Unger, who spent 14 years in a B.C. prison for the 1990 sexual assault and killing of teenager Grenier at a rock concert in a small Manitoba community.

"I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred in Mr. Unger's 1992 conviction," Nicholson said.

Unger was convicted, along with another man, of first-degree murder following the death of Grenier, 16, at the outdoor concert near Roseisle, Man., in June 1990. Grenier had been beaten, strangled and sexually mutilated.

Lockyer spoke to the media Wednesday afternoon following a hearing at Court of Queen's Bench in Winnipeg to amend Unger's bail conditions, which were set in November 2005 when he was released from prison.

"[Police] formed a theory early on that two people must have committed this crime, for no reason, but that was their theory, so they managed to find two people who committed it when of course only one really did," he said.

Lockyer also said police and prosecutors kept evidence from the defence during the original trial and used a jailhouse informant who was not credible. He didn't go into details about the latter but said there is new evidence the defence team can present at a new trial.

DNA evidence used to overturn conviction

In 2005, new DNA testing suggested a strand of hair found at the scene of the crime and originally used to convict Unger did not come from him.

Unger's lawyer subsequently filed an application to the minister of justice for a review of the murder conviction. In November 2005, Unger was released at age 34.

'I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred in Mr. Unger's 1992 conviction.' —Justice Minister Rob Nicholson

Asked if he intends to seek a public inquiry should his client be exonerated, Lockyer said he didn't know.

"That remains to be seen," he said.

Unger's team of lawyers also includes Hersh Wolch, who helped free David Milgaard and was part of the legal team that got Steven Truscott acquitted.

Wolch told CBC News on Wednesday that Unger is pleased with Nicholson's announcement.

"He's always known he's innocent and he's comforted by [Nicholson's decision], but it's still a lot of stress, what he's going through."

Wolch expects the new trial — if there is one — to be held in Winnipeg. But he said he wouldn't be surprised if the Crown decides not to prosecute the case again. If that happens, Wolch would still seek a court date to make his client's exoneration official.

"What they should do, if they don't go ahead, is call no evidence and allow an acquittal to be entered," he said.

Unger's appeals rebuffed by courts

Unger's initial appeal to the Manitoba Court of Appeal following his conviction was rejected and leave to appeal to the Supreme Court of Canada was denied. But in September 2004, a Forensic Evidence Review Committee established by the province called into question the hair comparison evidence used at Unger's trial.

A judge of the Manitoba Court of Queen's Bench said she had "very serious concerns [he] may have been wrongly convicted of murder," and granted bail pending the minister's decision.

'I think Houlahan was with Miss Grenier in the woods and was rebuffed and attacked her and killed her.' —Lawyer Hersh Wolch

Unger's co-accused, Timothy Houlahan, was also convicted for the murder. He was released on bail after his conviction was overturned by the Manitoba Court of Appeal in 1994. He committed suicide later that same year.

Although court was told at the time of the trials that Unger and Houlahan did not know one another, the Crown prosecutor argued they conspired to kill Grenier.

The prosecutor was George Dangerfield, who has made news in recent years as a number of his cases have been overturned as wrongful convictions. Some of those past cases involved Thomas Sophonow and James Driskell.

Wolch told CBC he believes Houlahan acted alone.

'If you know about what [Satanism] is…you would quickly understand how that fits the nature of the crime.' —Lawyer James Lockyer

"I think Houlahan was with Miss Grenier in the woods and was rebuffed and attacked her and killed her," he said.

Since Unger's release, Lockyer said the defence team has discovered evidence that Houlahan was a Satanist and the Crown knew it, Lockyer said.

"If you know about what [Satanism] is … you would quickly understand how that fits the nature of the crime," he said.

For an application for ministerial review to succeed, the minister of justice must be satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred. If this requirement is met, the minister may grant one of two remedies: direction for a new trial or a referral of the matter to the court of appeal to be heard as a new appeal.

As well, the minister has the legal authority at any time prior to his decision to refer a question about an application to a Court of Appeal for its opinion.

Reasons given for new trial

Nicholson said he decided to order a new trial after reviewing:

• The investigation report and advice of the department's Criminal Conviction Review Group.
• The submissions of Unger's counsel and of the attorney general of Manitoba.
• The recommendations of the minister's special adviser on the criminal conviction review process.

As the Unger matter has now been returned to the courts, Nicholson would not comment further.

But his office made it clear that, in rendering a decision on an application for ministerial review, the minister is not making a finding of guilt or innocence. He has no legal authority to make such a finding.

He is simply returning the matter to the courts in circumstances where there is a reasonable basis to conclude that a miscarriage of justice likely occurred.