JUSTICE

The rights of the accused on trial

Linda McQuaig June 21 1982
JUSTICE

The rights of the accused on trial

Linda McQuaig June 21 1982

The rights of the accused on trial

JUSTICE

Linda McQuaig

John Pratico sat in the front seat of a parked car, smoking a cigarette, sipping coffee from a Styrofoam

cup—and shaking uncontrollably. The 27-year-old Cape Breton resident was struggling to talk about events 11 years ago that have become a nightmare for him. In 1971, at the age of 16, he was the key witness at a murder trial in Sydney, N.S., and he testified that he had seen

Donald Marshall stab Sandy Seale. Now, nervously overlooking the ocean, he admits that he was lying. “I didn’t see anything. I just seen them talking,” he says. That lie put Donald Marshall in prison for almost 11 years.

Marshall’s case was reopened last winter, and in March he was released to a halfway home in Halifax where he awaits the outcome of the investigation.

One possibility is a new trial that could clear him of the murder conviction. Another, more dramatic, is a free pardon —probably the first granted in this country—that would declare him innocent. But his case and the recent dismissal of the case against Toronto nurse Susan Nelles on charges of murdering four babies at the Hospital for Sick Children have drawn ne r attention to the rights of the accused in the criminal justice system. The most basic tenet of that system is that a person is innocent until proven guilty. Still, despite the safeguards built into the Criminal Code, there is always the chance that Kafka’s harrowing scenario will come true: that someone will be sent to jail for a crime he did not commit.

Some defence lawyers aigue that Canadians may be deludir g themselves if they believe that t ere are plenty of safeguards protecting them from such a stroke of bad luck. “The accused doesn’t have a lot of rights,” says prominent Toronto criminal lawyer Edward Greenspan. “People are shocked when they find out how few safeguards there really are.”

The Donald Marshall case, for one, is a ingularly powerful example of the ne d for strong safeguards. In 1971,12 jurors came to the unanimous conclusion that he was guilty beyond a reasonable doubt. Yet an RCMP investigation this spring is expected to exonerate him. What is more, the RCMP now has a new suspect and an alleged murder weapon found in the basement of the suspect’s previous residence. Says RCMP Cpl. Jim Carroll: “It’s the most fascinating case I’ve worked on in 20 years.” It may also be the most frightening case in recent Canadian judicial history. Sydney is a quiet industrial town of about 30,000 in rural Cape Breton.

There had not been a murder there for five years when Seale was stabbed late one May evening in the city’s picturesque park, which is surrounded by graceful 19th-century homes and treelined streets. In a town where ethnic tensions had been minimal, the killing sparked racial hostilities and demonstrations. Sandy Seale was a 16year-old black youth and a local hockey star, and his alleged assailant, Donald Marshall, was a 17-year-old Micmac Indian, the son of Donald Marshall Sr., who holds the honor of being lifetime religious leader for the Micmacs of Nova Scotia. The two boys had known one another for several years. Ironically, the Seale parents had even invited the Marshall parents to their home for dinner on May 29. The dinner never took place. On May 28 Sandy Seale was brutally stabbed as he stood in the park with Donald Marshall.

Just what happened in the park that night is still unclear, but there are now indications that Seale and Marshall

may have approached the killer in the park. What is clear is that Donald Marshall ran from the scene of the stabbing to a nearby street where he encountered 14year-old Maynard Chant, who was later to become a key witness at Marshall’s trial. After showing Chant a stab wound on his arm, Marshall flagged down a passing car and the two of them returned to the scene. Marshall later told police that he and Seale had been approached in the park by two men wearing long, dark coats and that one of them had stabbed Seale and slashed Marshall’s arm before he escaped.

If the story sounded farfetched, there was still little evidence pointing to Marshall. Police found no weapon, and Marshall had, after all, flagged down a car and willingly returned to the scene of the murder. And Chant, who later testified that he saw the killing, never identified Marshall as the murderer at the time, even though he had plenty of opportunity to tell the police. Further§ more, Marshall’s stab wound I was on his left arm, so that if the 3wound was, as was later suggested, self-inflicted, he would almost certainly have had to do it with his right hand. Yet Mar-

shall is left-handed.

But what police soon did have—and what became the key evidence in the trial against Marshall—was the testimony of two young witnesses who claimed to have seen Marshall stab Seale. On June 5 police arrested Donald Marshall Jr., and that was the last he saw of freedom for almost 11 years.

In fact, the evidence of the two young witnesses was weak, and the defence urged the jury to consider it unreliable. To begin with, John Pratico, who claimed he had been squatting in the bushes watching Marshall and Seale, admitted in his testimony that he was intoxicated at the time, having drunk half a bottle of wine, six quart-size bottles of beer, several pints of beer and possibly—he could not remember for sure—some rum. In fact, 16-year-old Pratico had been on a bender, having been drunk the day before as well. The other witness, Maynard Chant, who had failed three grades in school, contradicted himself in his testimony, claiming at one point that he had seen the murder and later denying it.

But the judge advised the jury that the two witnesses were the key to the case against Marshall and stressed that they would have no motive for lying. One of the jurors, 64-year-old Ananias King of Louisburg, N.S., says the fact that there were two witnesses was important to the jury. King also points out that suggestions during the trial that the witnesses feared retaliation by members of the Indian community worked against Donald Marshall. “It certainly didn’t help,” says King. Both Chant and Pratico say they did feel intimidated by the Indian community. But they say that they also feared another group that was not mentioned at the trial—the Sydney police.

Both witnesses now say they did not see Marshall stab Seale. In separate interviews with Maclean's they said that the Sydney police had interrogated them extensively and were reluctant to accept their insistence that they had not seen the murder. Because of their backgrounds—Pratico has spent time in a mental hospital, and Chant varied his version of events in court—their current accounts might not carry much weight in court. Nevertheless, Chant, who was on probation at the time and had been breaking curfew the night of the murder, said police had told him he could be charged with perjury and end up imprisoned for two to five years if he kept insisting that he had not seen the stabbing. “I was a scared kid,” he said.

For his part, Pratico said the police kept coming to his home at different times of the day and told him that if he did not tell them the truth he could end up in jail. “They thought I was lying,” says Pratico, “but I was telling the truth.” Pratico says he and Chant were interviewed alternately for hours at a time; after one was taken out, the other would be taken in. “I was getting a

headache listening to them [the police].” Pratico also contends that the police knew he had a “nerve problem” and that they had driven him to a psychiatric hospital in Dartmouth, where he was admitted for care before the trial. That was not introduced as evidence at the trial.

Sydney Police Chief John MacIntyre, who headed the investigation as a detective in 1971 and has since been promoted to chief, refused to discuss the case with Maclean's because it is under investigation. Both the witnesses say that their consciences have bothered them for a decade because they knew that their testimony was largely responsible for Marshall’s conviction. They both insist that they tried to tell the truth, Chant by denying at one point in his testimony that he saw the killing and Pratico by trying to talk in private to one of the defence lawyers. In one of the more bizarre sequences in the affair, Pratico approached defence lawyer Simon Khattar in the hall outside the courtroom and insisted that he had something to tell him. Khattar immediately called over a few witnesses, including the sheriff, and Pratico proceeded to blurt out that he had not seen the killing. That statement was later presented in court.

Even more surprising, Sydney police seemed uninterested when other witnesses later came forward and gave information suggesting that someone else had done the killing. Despite the fact that three individuals came forward on separate occasions and identified the same man—who is now the prime suspect-police took little action. One Sydney man, who claimed to be with the killer at the time of the stabbing, came forward to police shortly after Marshall’s conviction, but his story was not accepted. The same man was later identified to police by his wife, and as a result he was given a lie detector test. But results proved inconclusive, and the matter was not pursued. In a separate development several years later, the teenage daughter of the suspect confided to her martial arts instructor, David Ratchford, that she had seen her father come home with a knife the night of the murder and talk as though he had killed someone. Ratchford, now a 32year-old high school counsellor, says that he talked the girl into going to the police and went along with her. But, he says, the police told them the case was closed. Says Ratchford: “They weren’t

prepared to listen.” Marshall is now waiting in Halifax for the pardon that could send him home a free man. And in Toronto Susan Nelles tries to piece together what remains of her life after living under the shadow of a murder conviction for more than a year. Yet, ironically, though both cases point to the need for strong safeguards for the accused, they are attracting notice at a time gwhen the rights of the

accused may be in

greater jeopardy than Sever before. Criminal lawyers point with alarm to recent moves by legal authorities in Ontario to weaken what is perhaps the most crucial bulwark of the defence system for the accused: the preliminary hearing, a pretrial review in which a judge determines whether or not there is any evidence that could lead to a conviction.

Critics of the preliminary hearing process say it is costly and unnecessary. Ottawa has been considering revamping it for years in the interests of saving money and court time, and justice officials in Ontario would also like to see it trimmed. In 1976 an internal federal justice department memo proposed

changes that would have restricted the scope of such hearings. If Ottawa had anticipated acting on that, it backed down in the face of strong reaction from the Ontario Criminal Lawyers’ Association. But the push to limit the scope of preliminary hearings gained momentum last month when a committee of Ontario judges, Crown attorneys and defence lawyers—formed following a request by the federal government—recommended changes that would limit the rights of defence lawyers at the hearings. Two of the four lawyers on the committee dissented, and the Criminal Lawyers’ Association came out against the changes, charging that they would weaken key safeguards for the accused.

Defence lawyers argue that the preliminary hearing provides a crucial barrier that can spare innocent victims the ordeal of a long and humiliating trial. The preliminary hearing only determines whether or not there is any evidence that could lead to a conviction—a test so minimal that it offers a chance to weed out very weak cases at an early stage. “If there’s not even that [sufficient evidence to pass the preliminary], you sure don’t want a trial,” says Doug

Rutherford, Canada’s assistant deputy Crown attorney. Earl Levy, vice-president of the Criminal Lawyers’ Association, says that some 15 per cent of cases that go to preliminaries across Canada end up being thrown out before they go to trial.

In Vancouver, earlier this spring, a judge spared a former mayor of Langley, B.C., a gruelling ordeal when he threw out charges of public fraud after finding no evidence against the defendant at a preliminary hearing. The judge, in fact, said the mayor had acted completely in the public interest. “It was the most amazing bloody case,” says his lawyer, Marvin Storrow. “Charges never should have been laid.” Mark Sandler, one of the lawyers defending Susan Nelles, says that if the preliminary hearing had been limited in the way now proposed, Nelles’ case might well have proceeded to trial, which would have meant an even greater and more protracted ordeal for her, as well as higher legal fees. Under the proposed changes, the defence lawyers would only be allowed to crossexamine witnesses if they could convince a judge that this was necessary. In the Nelles case, the right-to cross-examine was crucial, Sandler says, because the Crown introduced evidence

suggesting that it was possible for the lethal drug digoxin to kill slowly, leaving open the possibility that Nelles could have been responsible for a death that took place while she was not even on duty. But under cross-examination by the defence, the doctor revealed that, although this delayed-reaction death was theoretically possible, the possibility was almost nil considering the circumstances surrounding the death.

Both Greenspan and Toronto lawyer Clayton Ruby contend that Canadian authorities, in their efforts to streamline court procedures, are reducing the rights of the accused. “Criminal law was not created to be a production line, like making cars,” says Greenspan. “Speed should have no place in the criminal justice system.” Ruby argues that citizens are increasingly losing their right to one of the most basic tenets of the democratic system: a citizen’s right to be tried by his peers in the form of a jury trial. This is happening because more and more types of offences are being defined as “hybrids,” which means Crown prosecutors are allowed to choose whether to proceed by indictment or by the less serious route of summary conviction. If they proceed by summary, the defendant loses his right to opt for trial by jury and the right to a

preliminary hearing. The new Canadian Charter of Rights, in fact, only guarantees that citizens will have the right to a jury trial for offences carrying a maximum sentence of five years.

Another protection for the accused that has disappeared in recent years in almost all parts of Canada is the grand jury—a panel of citizens that hears evidence of a case in private before the trial. Rod McLeod, Ontario’s assistant deputy attorney general, argues that, in fact, grand juries offered little real protection: because no defence lawyers were present, juries tended to believe the Crown prosecutor who was giving them the evidence. But Peter McWilliams, a Milton, Ont., lawyer and author of Canadian Criminal Evidence, recalls that in Hamilton, Ont., a very weak rape case passed through a preliminary inquiry because there was some evidence—the testimony of the woman. But when a grand jury heard the circumstances, it threw the case out, sparing everyone involved the trauma of a trial that would almost inevitably have led to an acquittal.

Both the Nelles and Marshall cases have raised the issue of

compensation for accused persons who are found to be innocent. Nelles ran up a staggering legal bill, estimated to be close to $150,000. And Marshall’s lawyer, Stephen Aronson, is hoping to win compensation for his client—as well as considering the possibility of acting as his agent, should anyone want to make a movie of Marshall’s tragedy. But financial compensation— or even movie royalties—does little to ease the emotional scars of months of living under a murder accusation or years of living behind bars. Says Donna Gould, Marshall’s 30-year-old sister: “There’s no way to ever replace those years he spent in prison.”

With files from

Jackie Carlos