THE NATIONAL SCENE

SECRET COURT IN HAMILTON

DOUGLAS MARSHALL January 1 1970
THE NATIONAL SCENE

SECRET COURT IN HAMILTON

DOUGLAS MARSHALL January 1 1970

CLASSIC DETECTIVE fiction, as with all good stories, has a beginning and a middle and an end. In the beginning somebody is killed. In the middle, during investigation or at a trial, the true circumstances surrounding the crime are revealed. In the end, justice is seen to be done. In real life, murder cases are invariably messier and less satisfying. But seldom, even in Canada where the machinery of justice can turn out such dubious products as the original Stephen Truscott trial, has there been a murder mystery as messy and as unsatisfying as the one that unfolded — or rather failed to unfold — in Hamilton, Ontario, last year.

The Hamilton murder case is now officially closed. But there is a stench that refuses to go away, the rotten odor associated with injustice and concealment. Ugly rumors alleging police misconduct still hang over the city. The continuing atmosphere of suspicion and distrust is making Hamilton citizens on both sides of the law and-order debate uneasy. It should make everybody in Canada uneasy.

The beginning of the story is not in dispute. Shortly before four on the morning of December 22, 1968, a street fight developed in a quiet residential district near the ridge of the city’s Mountain. On the defensive were two armed policemen in plain clothes, Sgt. J. Cameron McMurrich and Sgt. Joseph Rallo.They were part of a special five-man burglary squad operating from a cruiser parked nearby.

Ranged against the police were a group of angry, drunken men who had been carousing at a Christmas party in the home of John Charles McClure. The group included McClure himself, James Brechin, James Major, Murray Feist, Douglas Maracle and John MacEwan. Four of these men had criminal records and their car-license numbers were on a police list.

Ten shots were fired from the .38calibre revolvers carried by the sergeants. One nicked the leg of MacEwan. Another pierced the heart of 34-year-old Sgt. McMurrich and killed him within seconds. A third bullet entered Brechin’s back, just below the left shoulder blade and punctured both his lungs. Brechin, 24, died when the lung sacs filled with blood and air. The bodies of the two slain men were found on opposite sides of a Sunoco service-station lot a block from the McClure home. The five surviving civilians were arrested and charged with capital murder.

There was also a middle to the story. Many observers found it as bleak and repugnant as the beginning. When the preliminary hearing into the charges against the five men opened late in February, provincial Judge Robert Morrison banned both press and public from his court. As far as is known, this was the first time this had happened in a capital - murder case in the history of Canadian jurisprudence. Judges may so use their discretionary powers under Section 451, sub-section (j), of the Criminal Code. Cases are frequently heard in camera; newsmen stay and take notes but refrain from reporting the testimony in detail. Never before, however, have press reporters been banned entirely.

The secret hearing also saw a second rather frightening precedent set. The court stenographers who took down the evidence given by 36 witnesses during the eight-day inquiry were forbidden to sell the transcript to the news media until after the subsequent trial. In theory, such transcripts are public documents. Furthermore, again contrary to normal practice, the coroner refused to make public his autopsy reports on the two victims. No inquests had been conducted.

Finally, the Hamilton story had an ending — of sorts. It came unexpectedly during the trial held last September before Mr. Justice Campbell Grant of the Ontario Supreme Court. By then the accused men had waited nearly nine months in jail cells for their day in court. MacEwan, who had no previous criminal record, cracked under the strain and asked to be put in solitary confinement.

On the ninth day of the trial, which had been scheduled to last three weeks, the accused were persuaded to plead guilty to lesser charges rather than risk their necks by having the trial continue. The jury was dismissed and no more testimony was taken. A week later McClure and Major were sentenced to 14 years in penitentiary for manslaughter. Feist received eight years and Maracle seven. MacEwan, who had pleaded guilty to assaulting a policeman on duty, was sentenced to six months definite and three months indefinite in a provincial reformatory.

Those are the bare details of the story. Almost everything else connected with the case is open to question — and the questions have never been properly answered. If they ever are it will be thanks largely to the efforts of one man. Because, for all its murky irregularities, the Hamilton murder story is not without its hero. He is Stuart Brooks, court reporter for the Hamilton Spectator, the city’s only daily newspaper.

Brooks, a short, energetic 43-yearold Yorkshireman, could never be confused with Clark Kent. But he has spent his career covering the courts and he knows his job. His shy. hesitant manner masks a tough curiosity, a refusal to be conned, that is the stamp of the very best newspapermen. A couple of years ago he won an Ontario feature-writing award for his exposure of a badly conducted rape trial.

In many ways, the Spectator doesn’t deserve Brooks. In attempting to discover the truth behind last year’s mystery, the reporter had to contend not only with tight-lipped defense lawyers and dissembling by police, but also with a surprising degree of indifference on the part of his own newspaper. The Spectator never took a stand on aspects of the case that were beginning to bother Brooks and he received little editorial encouragement for his view that the police version of events contained less than the full truth. At one stage Brooks was forced to write a letter to his own editor, pointing out certain facts. The letter was duly published.

Brooks was first tipped off about the story behind the story by an anonymous telephone call he received four days after the shooting. At that time police spokesmen were saying merely that two officers had been attacked by six or more men who rushed out from a party in a house under observation. There was considerable public sympathy for the police. The Spectator had launched a fund for the education of Sgt. McMurrich’s children and was carrying a daily list of contributions

The telephone caller, who later identified himself, turned out to be a close friend of the police officer originally in charge of the case. Brooks was satisfied he had no connection with the accused and promised him anonymity. The informant said that the five sergeants who formed the special burglary squad had been harassing McClure and his friends for months: deflating their car tires, pouring sugar in gas tanks and dropping metal shavings into a truck crankcase. He said the squad had been engaged in such activities on the night the fight started.

The caller also told Brooks that some members of the squad had been drinking liquor and beer while on duty that night. And he added that when the two sergeants directly involved in the fracas were accosted by the accused men, they had drawn their revolvers and fired warning shots in the direction of the attackers.

Brooks then drove out to the McClure home on East 27th Street. Nearby he found Feist’s car, a Ford Monarch, encased by a recent snowstorm. Digging the snow away, he discovered that the two front tires were indeed flat. From that point on Brooks began to dig in earnest. He interviewed witnesses who had seen the fight and he won the confidence of the frightened and wary relatives of the accused. The picture he began to fit together was largely confirmed when the testimony taken at the secret hearing was finally made available to the public.

When Brooks eventually approached Maclean’s he had virtually given up hope that the full story of the Hamilton murder would ever emerge. Maclean’s studied Brooks' notes and examined transcripts of evidence. We are convinced that what follows is as close to the truth of what actually happened that night as anybody is ever likely to get:

For two members of the squad, the evidence shows, the evening began in a beer tavern. McMurrich and Sgt. Gordon Street spent an hour and a half in the Wentworth House, mixing with the patrons and hoping to learn about a truckload of frozen turkeys stolen the night before. McMurrich had four glasses of beer while he sat with Street and an unknown quantity while the policemen were sitting at separate tables.

Later in the evening all five members of the squad — McMurrich, Rallo, Street, Sgt. Richard Perry and Staff Sgt. Bruce McMurray, the leader — set off in a cruiser for a 15-mile trip to the neighboring town of Burlington. Their mission: to check the layout of a shopping plaza where they suspected a break-in might occur. En route, however, they decided to drop in on a party being held in a service garage by an acquaintance of McMurray’s. The squad leader later testified that he consumed two pints of beer in the garage: “I presume we all had what we wanted; there was whisky available and beer.”

Analysis of a blood sample taken from McMurrich’s body showed that it had an alcohol content of .07 percent, equivalent to six or seven ounces of liquor, at time of death. An alcohol content of .08 percent is often considered the impairment level in driving cases. An expert forensic scientist testified that McMurrich's blood-alcohol level would have been much higher — at least .09 percent — a couple of hours earlier. Samples taken from Brechin’s body showed a blood-alcohol reading of .27 percent — indicating that he was heavily intoxicated. No sample of Sgt. Rallo’s blood was taken until 24 hours after the shooting. The test proved negative.

What happened after the squad left the garage drinking party lies at the crux of the case. The police claim they continued their journey to Burlington and didn't return to Hamilton until 3 a.m. Curiously, the shopping plaza they say they visited happened to be staked out that night by two Burlington policemen concealed in a van. The Burlington officers told a defense lawyer they did not see the tan-colored Hamilton cruiser with five men in it. Defense lawyers implied that the Burlington trip was a fabrication. They suggested that during this period the squad was back in Hamilton, meddling with the cars belonging to McClure’s guests.

Certainly somebody was meddling with the cars. At 2.15 a.m. a neighbor of the McClures’, Mrs. Leona Turner, glanced out of her bedroom window. She saw two hefty men letting down the tires of two cars parked in front of her house. The details of her description of the men could fit Sergeants McMurrich and Rallo. When Mrs. Turner leaned out of the window and shouted, the men left. She then saw a third man get out of a “sandy-brown” car showing no lights, get back in, and reverse quickly up Audrey Street. Mrs. Turner telephoned the police and a few minutes later a uniformed constable arrived in a patrol car with flashing lights.

The police have said that Mrs. Turner originally described the two meddlers as “youths” and the suspect car as “dark.” She denies both these points. For one thing, Brooks was able to confirm that she cannot pronounce “youths” properly and never uses the word.

Meanwhile, the party in the McClure home was in full swing. It was a repeat of a similar party McClure’s wife Wynsome had held on the same Saturday the previous year. There was plenty to drink but no rowdiness. About an hour after midnight the guests began to tuck into the large baked ham and the turkey their hostess had prepared. They had just finished eating when somebody noticed the patrol car with flashing lights.

Mrs. McClure left the party to find out why her neighbor had called the police. She returned with the news of what Mrs. Turner had seen. Feist and Major then went out to check their cars and found tires had been deflated on both vehicles. In addition, the spark-plug wires had been ripped out of Feist’s engine. The two men then spoke to Mrs. Turner, asking if she would help identify anyone suspected of causing the damage. They complained to her that police had let their tires down on previous occasions.

Back at the McClure party a brooding resentment had set in. By the time McMurrich and Rallo were spotted walking past the house a few minutes before 4 a.m., the men were ready to explode. They piled out on to the street, shouting at the two sergeants. The policemen ignored the shouts at first but the attackers caught up with them and there was a brief flurry of fists. The sergeants broke free and then, in a weird parody of a western showdown, drew their guns and began backing slowly down Crockett Street toward the Sunoco station.

Several warning shots were fired, one of them wounding MacEwan, but the shooting only seemed to make the drunken men angrier. At one point McClure is said to have yelled, “McMurrich, you bastard, I am going to kill you.” When they reached the Sunoco lot, the attackers managed to separate the sergeants and closed in. Rallo testified that he heard Major say, “Get his gun. Did you get it? Give it to me.” Brechin was shot in the back, the sergeant said, in a wrist-to-wrist struggle for the police revolver. It is not clear how McMurrich was killed but Rallo said he saw McClure “stomping” on the slain sergeant’s prostrate body.

Rallo testified that after the shooting he “fled for my life” with Feist in pursuit. But an independent witness contradicted this. Leroy Edward Neill, who lives near the service station, testified that he saw Rallo and Feist in a “Mexican stand-off”: Rallo slowly retreated south on Upper Sherman Avenue, firing twice at the unarmed Feist. Then the sergeant turned and ran. Feist did not follow him.

As he pieced together this version of events, reporter Brooks remained confident that the full details would be brought into the open at the preliminary hearing. He had no way of knowing that one of our most important judicial traditions, the concept that justice must be seen to be done, was about to be flouted. That decision came about after defense counsel hinted publicly they would seek a change of venue on the grounds that the publicity surrounding the case in Hamilton was unfavorable to the accused. In court, however, the Crown invited the defense to ask Judge Morrison to hold a closed session. This they did and the judge then ordered the room cleared of all but the accused and the essential court officers.

Brooks and reporter Bill Sturrup from radio station CHML insisted on staying in their seats. The judge again ordered them to leave. The reporters asked for time to get in touch with their editors and to speak to lawyers. Judge Morrison replied that such a course of action was open to them but meanwhile they must leave or be forcibly evicted.

As he left the courtroom, Brooks was convinced that the entire journalistic establishment in Canada would erupt in fury when it heard the news. As it happened, the St. Catharines Standard was the only newspaper sufficiently disturbed to run an editorial protesting the decision. The Spectator did not even seek legal representation. It was left to a lawyer retained by CHML to put the case for the press media.

Judge Morrison remained adamant. How could it be called a secret court, he asked, when there was nothing to prevent “competent counsel” from giving out the news of what had gone on? In other words, our court system could be run on the basis of public-relations handouts. The pitfalls are obvious.

“The situation for the next eight days made me physically ill,” says Brooks. “There was a burly uniformed policeman barring the door to the people’s court. Opposite him, on a corridor bench, were the wives of the accused. They waited patiently day after day, unable to know what was happening to their men. And at the end of it all Judge Morrison signed the official record stating that the evidence had been taken before him ‘in open court in the presence of the accused.’ ”

Nobody, certainly not Brooks, is denying that the men took part in a vicious assault and should be punished. Nor is there any doubt that they were valid subjects for police scrutiny. But the fact remains that much of the evidence taken at the secret hearing was never presented to a jury. The men were bundled off to penitentiary with the story only half told. Mrs. Turner, who had previously respected the police, puts it this way: “What upset me most was that the police had been drinking. You like to think that everyone has a fair chance, right or wrong, and this is why you have a jury. It was not left to a jury, that’s a fact, to decide guilt or innocence after hearing all the evidence.”

It can be argued that the only function of a hearing or a trial is to dispose of the charge against the accused. Strictly speaking, this is true. But it’s also arguable that hearings and trials have a secondary function: to clear the air and remove doubts. What makes the Hamilton murder case so disturbing is that a series of events, many of them not particularly irregular in themselves, combined to defeat the secondary purpose of the trial. There are still too many question marks dangling over the inquiry.

The most important question of all concerns the future quality of justice in this country. Will there be more secret hearings? The laws relating to preliminary inquiries have recently been changed. The accused or his lawyer may now request that evidence not be published until after discharge or trial. However, it is not the intention of the new legislation to ban newsmen from the courts. Yet the sections of the Criminal Code that make that possible are still on the books and, as long as they remain, the principle of open justice is in jeopardy.

Perhaps the best epitaph on the Hamilton murder mystery is the tale of what happened in a similar case in Britain two years ago. By coincidence it occurred in Brooks’ native Yorkshire. At the preliminary hearing of a murder charge the accused man elected to have sworn written statements handed in instead of giving verbal testimony. When the case came to trial, the man pleaded guilty and was given mandatory life imprisonment. The press, therefore, heard no evidence.

The next day virtually the entire British press was united in a chorus of complaint. Within three days the subject was being debated in the House of Commons. That same afternoon the Lord Chief Justice rose in the Lords and announced that, although what had happened was legally correct, the spirit of the law had been violated. He ordered a complete new trial. It ended with the same man being convicted by the same judge for the second time, but only after a full account had been heard by the press and the public.