Craggs asks about Craig’s relationship with James.
“I’ve known him all my life,” says Craig. He and James went hunting for ducks and deer a number of times, but he no longer hunts. He’s not allowed to have firearms, but in any case, “I’m not interested in guns now.” James, he says, isn’t an especially good shot, but he “shoots as well as the rest of us. It depends on the day he’s having, like everyone else.” Craggs reviews the sequence of shooting, including Craig’s observation that after James’s second shot smoke came out of Phillip’s engine and it stopped. Craig says he assumes the slug hit the engine, but in earlier testimony he’d stated positively that the shot hit the engine.
After the third shot, Craig says, he turned away because he was scared—and after the fourth he cried, “No more shooting!”
Did anything else happen to you at that point? Craggs asks.
“Yes,” says Craig. “I messed my pants.” What does that mean? Did he defecate in his pants? “I don’t know what the word means.” Poo in his pants? “Yes.”
And then did he clean himself up?
Shane Russell objects. The witness is clearly feeling awkward, and what’s the purpose of pursuing this line of questioning? Is Craggs pursuing some material point, or is he elaborating on this matter to embarrass or agitate the witness?
“This kind of question is embarrassing, I’m sure,” says Justice Kennedy. “But this is not a tea party. It’s a murder trial. Sometimes those kinds of questions get asked in trials of this nature. What took place on board the Twin Maggies at times pertinent from beginning to end is relevant to this trial, and you may continue, Mr. Craggs.”
Craig admits he finds this question uncomfortable. But on two previous occasions, while testifying under oath, he had volunteered this information, had he not?
“It was asked,” Craig responds icily.
“It was asked of you. So someone actually asked you, Did you defecate in your pants, or poop in your pants?”
“They asked me the story, and I told them.”
Craggs goes back to the two transcripts and has him read the testimony aloud. In both cases, Craig says he was so frightened that “I pooped myself.” He wasn’t asked questions specifically about that point. So isn’t it fair to say that he offered up the information voluntarily?
“Yes,” Craig concedes.
All right, says Craggs, “and did you offer it up because you were trying to make your story sound more believable?”
“No.”
Craggs returns to the question of when he cleaned himself up. Craig says he did that at 1:30 in the afternoon, after he got home. Probing further, Craggs determines that Craig had fished the rest of the morning, taken a lunch break, returned to the wharf, unloaded the boat, gone to D’Escousse and helped Dwayne clean the rifle, driven James home—and only then, hours later, did he clean himself up.
“And after the shooting stops,” Craggs says, “are you looking around you as the Twin Maggies circles around and comes toward Phillip’s boat? Are you saying anything like ‘What are you guys doing?’ Were you concerned about Phillip, the guy you’re friendly with?”
“I was just surprised. And scared.”
“And as the Twin Maggies went over Phillip, do I understand your evidence to be that as far as you knew Phillip was in his boat until it actually got hit the third time?”
“I can’t say for certain.”
“But you can say for certain that it was run over three times.”
“Yes. I heard a thud three times.”
“So where were you?”
“At my post.”
“And where were your eyes?”
“In the back.”
“In the back? Looking over the stern of the Twin Maggies? And you don’t see Phillip’s boat at all?”
“I don’t remember seeing it.”
Craggs hammers away at three major points that undercut the witness’s credibility. First, Craig Landry resolutely maintains that he was little more than a passive bystander. He didn’t really participate in the killing, but—aside from exclaiming “No more shooting!”—he did nothing much to stop it, either. He didn’t implore the others to leave Phillip alone, he didn’t try to prevent the ramming, he didn’t even go over to the rail to take a closer look at what was happening. He just stood silently at his post, as though he were still fishing, while the other two aboard carried out a sustained and deadly attack. Really?
Second, Craggs repeatedly implies that Craig has made a deal with the Crown, giving testimony that damns his shipmates in return for leniency towards himself. Craggs notes that on June 2 Craig told the police the Cockamamie Story—that Phillip charged out of the fog and collided with the Twin Maggies on Friday—and stuck to it rigidly because “I was told to.” Then he engaged Joel Pink, the Gretzky of Nova Scotia criminal lawyers. Next, for no apparent reason, and certainly not in hope of any benefit for himself—perish the thought!—he was swept by an urge to come clean. So, accompanied by Gretzky, he told the police what became Her Majesty’s Story. And the Crown, in a sudden spontaneous upwelling of generosity, decided he should be released on bail and that his charge should be reduced from second degree murder to accessory after the fact. Luke Craggs clearly does not believe all these events were completely unrelated.
The lawyer doesn’t spell it out, but the truth is that if Craig did admit that he cut a deal to speak out in return for leniency, that admission itself might wreck the deal. The courts have often viewed such pacts as hopelessly coercive, and therefore have dismissed the resulting evidence as being fundamentally unreliable. If Craggs can convince the jury and the court that Craig’s testimony is tainted, he will neutralize a major part of the prosecution’s case.
Third, having established that Craig is very good at memorizing a story, at following instructions, and at sticking to the script, Craggs focuses on discrepancies between Craig’s earlier and later testimony. As he continues the cross-examination, he asks about the top speed of the Twin Maggies, and Craig says he doesn’t know. But he did know on June 26, 2013, as Craggs proves by having the witness read aloud from his earlier testimony, in which he said that Dwayne ran the engine at 1900 rpm, which gave the boat a speed of 8.2 knots.
Yesterday, Craggs continues, Craig testified that Phillip was wearing a black T-shirt, a black sweater, and rubber boots, although he didn’t remember the colour of the boots. But a year and a half earlier, in his June 26 statement, he was asked if he could describe what Phillip was wearing—and he couldn’t. And he says he hasn’t looked at any of the police information disclosed to his counsel. So how is it that he recalls things now that he couldn’t recall then?
“You remember little things,” said Craig.
All right, says Craggs, let’s move on to the gaffing of Phillip. “You described a total of three times when you saw James Landry trying to drown, and then successfully drowning, Phillip Boudreau, correct? With a gaff? Now, as all this is happening, you’re still standing at your table. Are you able to see what’s actually happening in the water, with the gaff?”
“No.”
“Do you actually see the gaff touch Phillip’s body?”
“No.”
“And as you’re watching this, are you thinking, ‘James is trying to drown Phillip’?”
“Yes.”
“But you didn’t speak up and say, ‘James, don’t drown Phillip’?”
“No.”
“And you don’t know how Phillip got physically hooked with the gaff, right? You don’t know if it hooked his arm, or his neck, or his clothing? Because you didn’t see it.”
“Correct.”
Craggs directs the witness to the transcript of the November 26 preliminary hearing for Dwayne Samson. On this page, Craig says unequivocally that James hooked Phillip with the gaff and caught him by the shirt. Why had he said that?
“You saw Phillip Boudreau between the gaffings? Are you sure he wasn’t dead at that point? Are you sure he didn’t die from the thirty-five-foot lobster boat running over his boat?”
“Yes. He did not.”
After a few further questions, Craggs moves into the final phase of his cross-examination, almost a summation, still hammering away at the possibility of a deal. When the murder charge was reduced to accessory after the fact, how did Craig feel? Better? Relieved? And he still hadn’t entered a plea? Did he recognize that he might be found guilty, and might be sentenced? Uh-huh. Is it fair to say that if you’re found guilty, you’d prefer not to go to jail?
“It’s fair to say, yes.”
“And is your cooperation with the Crown and your testimony, is that geared towards getting a lighter sentence if you’re found guilty?”
“No.”
And Craig had told the police the Cockamamie Story on June 2 because someone told him to tell that story? And on June 6, when the police tried to interview him, someone had told him not to talk to them, so he did as he was told that time? But suddenly, on June 26, his motivation changed. He wanted to tell the truth.
“Yes.”
“Did anyone tell you to change your story? Are you just doing as you’re told to try to get a lighter sentence? Have you switched people around in your story and told this court that other people did things that you in fact did?”
“No.”
“Has your concern for caring for your family factored into anything that you have done since this incident happened?”
“I must say yes. Taking care of my three-year-old girl.”
“You mean being a father to her, right? You can’t be a father if you’re locked up, right?”
“No.”
“You’ve been out on bail for almost a year and a half now, correct? And are you still living in Petit de Grat? Okay, in the course of living there and going about your day-to-day life, have you been approached by people to talk about this?”
“Yes.”
“Did this happen once, twice, a few times?”
“Few times.”
“Have you felt pressured by anyone to tell your story? Have you felt any pressure from anyone in Phillip Boudreau’s family?”
“Most of them won’t talk to me. I’m not allowed to talk to them. I have no contact.”
“Is that a yes or a no?”
“I can’t talk to them, so I don’t know.”
Craggs pauses. When he resumes, his tone is harsh and aggressive.
“Sir, what if I told you that the most James Landry did was to shoot at Phillip Boudreau and miss? Would you agree with that?”
“No.”
“Okay, what if I told you that James didn’t say anything to Dwayne, and Dwayne drove the boat around and drove over Phillip? Would you agree with that or disagree?”
“I disagree.”
“Did you say anything to Dwayne? Did you say ‘Run him over’ yourself?”
“No.”
“What if I told you that your story about James tying Phillip’s bow line to the spar and helping the Twin Maggies tow him out was a fabrication on your part, would you agree with that or disagree, sir?”
“Disagree.”
“What if I told you that the gaffing incident that you described was a fabrication on your part? You just made it up. What if I told you that the anchor, dropping Phillip in the water with the anchor, was fabrication on your part?”
“No, sir.”
“You didn’t say anything to make your story sound more believable? You didn’t try to make things sound more punchy?”
“No, sir.”
“Your understanding, when they fired the rifle at Phillip’s boat, was that the purpose was to give him a scare, correct?”
“Correct.”
Craggs asks for a five-minute pause to review his notes before he concludes the cross-examination. When the court resumes, he reminds Craig of his testimony the previous day to the effect that when the Twin Maggies eventually stopped towing Phillip, the victim was wearing only a black T-shirt. Craig could observe that because when Phillip rolled over face down, Craig could see his bare buttocks.
“Would you agree that the first time you mentioned that to either the police or the court was when you testified yesterday? Okay, is there a reason why you didn’t mention it before? Is it because you made it up?”
“No.”
Craggs reminds the witness that he was originally charged with murder but is now charged only as accessory after the fact. Did he know anything about how he came to be charged with the lesser offence?
“No,” says Craig. “I don’t know. I just talked to Mr. Pink, that’s all.”
Craggs has no further questions.
On redirect examination for the prosecution, Steve Drake takes Craig back to the question of James’s marksmanship and Craig’s experience hunting with him. When James hunts deer, Craig confirms, he uses a .30-30 rifle, like the one in evidence. It fires a single projectile, a bullet. When he hunts ducks, he uses a shotgun, which fires fifty or sixty pellets. The pellets expand, which “gives you a better chance to hit your game.”
“The times you went to hunt ducks with James Landry, with a shotgun, have you seen him miss ducks with a shotgun, with forty or fifty projectiles coming out of the barrel?”
“Yes.”
Drake clears his throat.
“When you go hunting ducks, do you go to scare the ducks?”
“No.”
“What do you go to do?”
“Kill the ducks.”
“Kill the ducks. And you saw James Landry miss.”
“Everyone misses.”
Drake has no further questions. The witness is excused. The court breaks for lunch.
* * *
—
After lunch, the Crown prepares to show Exhibit 25, the video of James’s interrogation at the RCMP station in Arichat on June 2, 2013, positioning the screen so that everyone—judge, jury, gallery—can see it. Justice Kennedy, as always, is very thoughtful about the ability of the public and the press to see the video. This is, he reminds us, a public courtroom, and the public is entitled to attend, to have a good view, to hear the testimony, to see whatever the lawyers and the jury can see. When the video begins, though, nobody can hear very much. The sound is terrible—thin, scratchy, faint.
“This is what happens when lawyers get near technology,” says Justice Kennedy. The hearing pauses while the staff scurry around looking for better speakers.
Eventually, just before 3:00, the video begins to play. The images are black and white and fuzzy, recorded by a single camera mounted on a wall. The camera is focused mainly on James, who sits on a utilitarian chair in a corner of the room. The plainclothes Mountie conducting the interview, Brian Richardson, has his back to the camera. It’s 3:32 p.m. on June 2, 2013—the day after Phillip Boudreau’s disappearance.
Richardson begins by identifying himself as an officer with thirty-four years’ service. He makes sure that James acknowledges that he’s not under arrest, he’s free to go, he’s aware that the conversation is being recorded, nobody has offered him any threats or rewards, and he’s speaking voluntarily.
Richardson wants to know about the collision on June 1 between Twin Maggies and Phillip Boudreau in Midnight Slider. James is ready with the Cockamamie Story: the collision occurred the previous day, when Midnight Slider rammed Twin Maggies. But on Saturday?
“Never seen him,” says James. “The only boat we seen, we seen a big blue boat coming out of Petit de Grat when we were finished hauling.”
Richardson ignores James’s denial and goes back to the ramming. There are two possible scenarios, he explains. First, Twin Maggies rammed Boudreau
’s boat “with the intention of causing his death. Well, if that were the case, we would be talking about a murder investigation here. The other scenario would be that you intentionally ran into that vessel, but there was no intention to kill, so in that situation the charge would be criminal negligence causing death. Do you understand those two different scenarios?”
James does not understand, and so Richardson carefully goes over it again, noting that he wants to be sure he’s making things clear, particularly because he realizes that James’s first language is French. Eventually James says, “You explained it good to me, so I get it. You got to explain it good, I’m not that smart. We can’t all be cops, lawyers, and priests. There’s got to be fishermen.” And he isn’t yielding on the question at hand: “I’m telling you we didn’t see him, the only boat we seen was that blue boat, that’s all.”
“Give me one good reason why I should believe you when you tell me that,” says Richardson.
“Well, it’s true. I’m telling you the truth. Why would I lie? I got nothing to hide.”
Richardson explains that this is a criminal investigation, and that “whatever you talk about here today, I may be required to go to court and testify to it.” He tells James that the other two crewmen have already been interviewed, and have given their stories. The police are out on the scene talking to other people. A forensics team is out looking for Phillip’s body, and “I feel confident that that body will be located.” Phillip’s boat has been found; a forensics team is examining it, too. The Twin Maggies has also been seized and is being examined. In short, the evidence that’s being gathered will allow the police to determine what really happened, and they need James to tell them his story so that they can get a complete picture. One way or another, Richardson implies, the police are going to get the true story, so James might as well tell them the truth now. Lying is a hopeless strategy. The police even have eyes in the sky.
“Since 9/11 the Americans have put a lot of satellites in the sky,” says the Mountie. “For example, have you ever heard of Google Earth? On the internet you can type in a civic address and a satellite in the sky will zoom right in to that address, and it’ll give you an image like you’re walking down the street. That’s how far technology has come.
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