Murder at McDonald's (44 page)

From left, Ken Haley, Marc Chisholm, and Brian Wllliston at the Halifax courthouse during the trial of Freeman MacNeil. [Print from ATV video tape.]

As the police officers sat in the hallway waiting to be called as witnesses, Kevin Cleary and I discussed how he and the others were feeling as the officers' actions were being picked apart inside the court. They just wondered, he said, why no-one seemed to worry about a policeman's state of mind during an interrogation. That weekend in May 1992, officers spent hours locked in the interrogation rooms to debate and plead with Wood, Muise, and MacNeil, only to give up in utter frustration as their colleagues watched and hoped for success. They always left the interview room to vent their anger; some kicked over garbage cans, pounded desks, cried, and literally banged their heads against walls as they tried to understand the casual attitude the young suspects were displaying. No, the agony and frustration of the police, whose job it was to get the much-needed confessions, was not an issue. But how much food or sleep a suspect had was critically important.

Brian Williston ran a hand through his thick, greying hair. Usually given to bright smiles and a polite but friendly tone, he was all business now, as he led the police witnesses through their dealings with MacNeil. He elicited every comment made by the officers or the accused, and finished every examination with the question: “Did you threaten Mr. MacNeil, or make any promises or inducements to him during the time you questioned him?” Each officer answered the question with a confident “No.” For his part, Kevin Coady attempted to outline his client's state of mind before he confessed. Constable Rod Gillis admitted that he challenged MacNeil to come over the table and attack him, and that he called him a coward who “could walk under a snake with a top hat on.” But unlike the frustrated outburst from the imposing Brian Stoyek, which had been of such concern to the Crown in the Muise case, Gillis's behaviour was less of an issue. It was clear to Justice Gruchey that Freeman MacNeil was bigger than either Gillis or his partner, Wayne MacDonald, and both officers testified that the remarks were not made in a threatening manner but were simply an expression of exasperation. What's more, the officers told MacNeil immediately afterward that they were through with him, and returned him to his cell. Pat Murphy also helped the Crown's case by presenting his detailed notes of MacNeil's May 16 confession, explaining that he left the room to get some water and found MacNeil's lawyer waiting in the hall. That MacNeil's lawyer conferred privately with him before the young man gave his second statement made it clear to the judge that MacNeil was well aware of his rights when he confessed.

To combat the convincing evidence of the police witnesses, Kevin Coady called his client to the stand. It was the only way he could hope to show the judge how MacNeil felt while confessing. Much to the disappointment of Al and Theresa Fagan, he wasn't asked about the murders; the issue was the admissibility of his statements. As he took the stand, Freeman MacNeil was the very image of a confident, intelligent, and likeable young man. He had changed from his suit to a grey herringbone blazer and pants, a white shirt, and black leather tie, and he had removed his glasses; the “university student” who had first appeared in the prisoner's bench now looked very much like another police witness.

MacNeil began with the events surrounding his lie-detector test at the North Sydney RCMP detachment. He tried to argue that he cooperated with police because he thought he had to—a point the judge did not accept after learning that MacNeil had been a security guard and even carried a card bearing the standard police warning and Charter of Rights advisory. Well, MacNeil said, maybe he just felt he would be seen in a negative light by police if he refused to take the test. Then he described his feelings after he was told he had failed the polygraph. “I thought I would be leaving after the test … I was tired and upset and wanted to go home. When Phil Scharf told me I failed, it had an impact on me. I became nervous, upset, and anxious about leaving. Sergeant Scharf moved closer to me and started asking more direct questions.… His tone changed, and his facial expressions were different. I felt I could not leave; he was blocking the door.”

When Scharf suggested MacNeil was involved, he said he agreed because he thought he would then be able to go home—one of many times during his testimony that the young man would imply that police were making a promise or inducement. Another point of contention was the recording of his discussions with police. MacNeil said he thought the second interview room was video- and audio-taped, as the polygraph suite had been; Sergeant Scharf said all his comments would be recorded, but no-one told him that ended when he left the polygraph suite. Then there was the matter of the written statement he gave the officers—not a transcript, he said, but a summary of his answers to their questions. MacNeil claimed it was at this point that he began to worry about his family, and that his fear arose from something his co-accused had said to him earlier. He did not elaborate on what that statement was. But Phil Scharf made it worse by saying that the other two were on the street and probably going after his family at that moment. And they kept on questioning him and questioning him: “I was tired, hungry, and anxious to leave. I was upset. They were telling me all day I could leave, and when it was time to leave, they said they had more questions.” What MacNeil failed to grasp was that
he
was the reason for the prolonged interrogation; every time he changed his story, he forced police to reassess his most-recent claims and deal with any contradictions.

Then, MacNeil said, he felt betrayed by police when “they indicated they would take me for a drive on the way home,” then told him he could not go home after all, but had to remain in custody because some RCMP higher-up had overruled the officers he was with. The “drive on the way home” was to enable police to observe the route he took to drive Muise away from the scene of the crime. MacNeil apparently did not see the irony in his claim that police betrayed him, after he himself had betrayed Derek Wood and Darren Muise during his re-enactment of the drive with Darren Muise after the crime. Throughout the testimony, MacNeil appeared rehearsed. His answers were detailed and contained all the information calculated to convince the judge that he was cooperating with police because he had been promised a reward for doing so—the reward being his release. His only sign of nervousness was his rush to get through his long and detailed answers, as if he wanted to be through with his testimony and get back to the relative safety of his seat. Kevin Coady carefully guided his client through the police interrogation, to the moment when he confessed to Kevin Cleary and Pat Murphy. MacNeil explained that he learned after talking with his lawyer that he did not have to answer police questions, but began to lose his resolve when Pat Murphy became emotional as he read the charges and told the story of his daughter's death. “They said it would be best for me in court if I told my version,” he said. “My mother would know I told the truth. This began to affect my decision to remain silent. I was emotionally upset. I was getting tearful and trying to avoid them as best I could. Cleary said ‘Don't bottle yourself up.'

“Once the crying started, it is not clear after that. I remember up to when they said I cried, but not much after that. I have no recollection of what I told them after that. My recall is gone after they said I entered the restaurant with the stick. I cannot say why I answered the questions. I had no intention of talking to them.”

When MacNeil had finished his testimony, Ken Haley stood to cross-examine him. As in the first two trials, the lawyers had decided to share the work in the MacNeil case, and while Brian Williston was the lead prosecutor, Ken Haley had agreed to conduct this cross-examination. His witness, the prosecutor soon discovered, knew very well how to respond to questions. As Haley tried to provoke MacNeil by pointing out the inconsistencies in his statements, he neither confirmed or denied the contents of the statements, simply agreeing that they existed. Haley was powerless as long as MacNeil continued to agree with everything he said; still, both men made it clear that a confrontation could come at any moment. Haley's voice was higher than usual, his tone angry and condescending. MacNeil got a stern look on his face and leaned forward slightly in the witness chair, his arms resting on the arms of the chair, his hands gripping the ends of the armrests. Justice Gruchey stopped Haley as he continued to work around the inconsistencies in MacNeil's statements, showing how they gradually implicated Muise and Wood and drew suspicion away from MacNeil. His questions, the judge said, were irrelevant to the issue of admissibility. But, Gruchey added, if it was Haley's intention to show that MacNeil was blaming others for the murders, this was already abundantly clear. Finally, realizing that the cross-examination would bear no fruit, Ken Haley said he had no further questions. The only opportunity the Crown had to question any of the three killers had been a non-event. But the frustration evaporated when Justice Gruchey ruled in favour of the Crown, saying he was convinced that Freeman MacNeil knew what he was doing when he confesses to shooting Jimmy Fagan. The trial could now begin.

MacNeil pleaded not guilty to the first-degree murders of Neil Burroughs and Jimmy Fagan, to the unlawful confinement of Donna Warren, and to the robbery. Brian Williston would call thirty-five witnesses as he attempted to prove his case. As in the Wood case, the jurors were led slowly through the events of May 7, 1992, then found out how police first met Freeman MacNeil, and how his role gradually changed from witness to suspect. MacNeil's friends testified about his spending spree in the days after the murders, and about his apparently normal behaviour—the only contradictory evidence coming from Greg Lawrence's girlfriend, who said he seemed pale and “spooky” the day he visited their apartment. As the witnesses gave their impressions of MacNeil's behaviour, Kevin Coady questioned them about how long, and how well, they knew him before the crime. Coady had already planned the defence he would present, and the testimony about MacNeil's behaviour after the crime would be critically important.

As the trial continued, some of the victims' relatives began to tire of the constant exposure to television cameras and reporters. There were private rooms set up for them in the courthouse, but they still had to enter the courtroom and subject themselves to searches by sheriff's deputies, standing with their arms outstretched as metal detectors were moved around their bodies. To the families, it was an insult to be shown on TV every day as dangerous people who had to be searched for weapons. At the end of a particularly emotional day of testimony, Justice Gruchey addressed their concerns. I was seated directly behind Freeman MacNeil during the trial, and the judge fixed his gaze on me as he asked the media to show some humanity in dealing with this case, then looked towards the families and apologized that he could not force the cameras to leave them alone. He asked them to let him know if there were any further problems, though, implying that he might restrict the access camera crews had in the court building.

It wasn't the first time Justice Gruchey had talked to me about what I should and should not record in and around a court. We had met months before, during the sexual-assault trial of a Roman Catholic priest. The tall, heavy-set judge became very upset when he arrived at a rural courthouse to find a TV camera waiting in the parking lot. He ordered the young cameraman to turn the camera off, then told the sheriff to bring me to his chambers, where he informed me in no uncertain terms that in his opinion, Supreme Court judges should not be highly visible. He enjoyed his private life, he said, and did not want to be recognized when he was out shopping with his wife or doing anything unrelated to his job. I didn't agree, but there was no point making an enemy of the man over such a small point. The shot of the judge arriving in his car was not that important; besides, Gruchey himself agreed to allow the camera inside the building before the jury arrived, so I could have a few shots of the old courtroom. But this time, I knew that I could not and would not agree to stop recording the proceedings outside Courtroom Three—not that I wanted to push him to the point where he would order cameras out of the building, of course. I soon found out, however, that even the victims' relatives were not in agreement on the issue. Neil Burroughs's father, for example, was very angry about the daily searches, but told me he had no problem with the cameras; it was not our fault he was being searched. One of Jimmy Fagan's brothers felt his parents should not be shown while being searched, but Al Fagan said he was not worried about it. And some actively wanted the cameras present—Cathy Sellars and her brother Joey Burroughs approached me after the comments by the judge to say they wanted people to see how they were being treated by the justice system.