Murder at McDonald's

by Jessome, Phonse;

  As the legal issues around the case were being worked out, prosecutor Brian Williston offered to lighten his boss’s workload by taking over the lead in the prosecution of Darren Muise. He knew Edwards planned on handling all three cases as lead prosecutor, but Williston wanted that file. He had put in long hours at the RCMP detachment with Pat Murphy, and he didn’t want to walk away from this one. Williston asked if he could act as lead counsel in the Darren Muise prosecution; Edwards agreed, and Williston began preparing his case. He was the first to discover a potential problem with the confession obtained from Muise. As he reviewed the police notes, he realized almost all contact with the accused had been either video- or audio-taped, which was great; the court would be able to see how Muise had behaved with police, and Muise would not be able to claim that he confessed out of fear. But Williston wanted to know what happened between the time the tape machine was turned off, and Sergeant Penny and Constable Hadubiak began their questioning of Muise. Brian Stoyek and Dave Trickett would have to be interviewed.

  Frank Edwards was also having a problem—with Derek Wood’s videotaped confession. It concerned the moment when Wood said he wanted to talk to his lawyer: how might a judge feel about that? Constable Mahoney had not exactly prevented Wood from calling his lawyer, but he had not stopped and gone for a phone, either. In parts of the United States, this would not be an issue, because a suspect is required to categorically state his wish for an attorney to be present before further questions are asked; but this was far from the case in Canada. It would be important to show the court that, a week earlier, Wood was given access to a phone whenever he asked for it—that he knew he could use a phone if he wanted to. It was a sticky point, and careful legal arguments would have to be built to support the admission of Wood’s confession as evidence. Freeman MacNeil’s confession looked better. There were no problems in how it was obtained; in fact, MacNeil met with his lawyer between the oral and written statements. Still, the circumstances surrounding his hours of custody before his confession were examined in detail. Frank Edwards knew that MacNeil’s new lawyer, Kevin Coady, would be doing the same thing, and the prosecutor had to be sure that Freeman MacNeil was never treated improperly by Rod Gillis, Wayne MacDonald, or Phil Scharf. His case could depend on it.

  These issues were being examined by lawyers on both sides of the case as the summer dragged on. The August 12 court appearance for the suspects came, and again high security was in evidence throughout the courthouse and in the parking lot outside. But there were fewer people gathered at the courthouse this time: people in the Sydney area were beginning to move on, and they were trying to put the murders behind them. In the courtroom, dates for preliminary hearings were set for MacNeil and Wood. Muise had waived his right to a preliminary, a sort of pre-trial trial during which the Crown presents its evidence and a judge decides if the evidence supports the charges—if so, the trial proceeds, usually on a much later date. The process is like that of a trial, with Crown lawyers introducing the evidence through their witnesses, and defence lawyers cross-examining. Some defence attorneys present witnesses, but others use the preliminary to get a sense of the Crown evidence without offering prosecutors a preview of how they will approach the case.

  Joel Pink said later that his client didn’t want a preliminary hearing because he accepted that there was evidence to support the charges against him. Pink also explained a decision that had generated much speculation—Darren Muise had been moved from Cape Breton County Correctional Centre to a facility in Halifax County, so that the two could confer as they prepared their case. Some people thought that the move was intended to separate Muise from his co-accused because he had turned them in; that the last of the three men to give his statement was really the first, the one who led police to the others. But Pink explained that the move would allow him to confer with his client more easily—even though access didn’t seem to be a problem for MacNeil’s lawyer, who was also based in Halifax. And there was also another reason for the move: Muise, who was suffering from depression, was under the care of a forensic psychiatrist from the nearby Nova Scotia Hospital. All three suspects had adjusted to the jail routine and begun communicating with friends and family, although MacNeil and Wood, who were closer to home, could have regular visitors. For his part, Darren Muise began making calls and writing letters to some of his friends back in Cape Breton. He told one friend he expected to be out in seven years, and hoped to work on some form of computer training while he was inside. He also said he had become a more-religious person.

  For the relatives of the four victims, the summer of 1992 was a time of adjusting to the loss but also of wondering what lay ahead. The families had agreed that they would attend all the court proceedings; they all wanted to be there to represent their loved ones from beginning to end.

  Germaine and Howard MacNeil remember that summer as the beginning of a long uphill battle. Doctors had told the MacNeils there was a good chance Arlene would never regain consciousness. Back in her home town of North Sydney, the trust fund set up by the community group, called Friends of Arlene MacNeil, was growing. The money would be needed to allow the MacNeils to travel back and forth to visit Arlene in Halifax, and to help with her recovery, if and when she returned home. For Germaine MacNeil, every day started with a visit to hospital, where her still-unconscious daughter lay in bed, her beautiful black hair shaved off, her face a contorted grimace. Germaine would loudly announce her arrival each day: “Hi, Arlene—it’s Mom. How are you, dear?” The days stretched to weeks, and it seemed Germaine was the only one who felt Arlene was ever going to come back. She claimed she could see improvements in her daughter’s condition, despite the fact that the young woman still would not awaken. Back in Cape Breton, the word was that Arlene MacNeil was never going to regain consciousness, and that the story of her mother seeing improvement where doctors saw none was just another part of the tragedy.

  One morning, Germaine entered the room and moved to the window to open the curtains and let the sun in. “Hi, Arlene—it’s Mom,” she said, as usual.

  “Hi, Mom.”

  Germaine’s heart stopped, her eyes filled with tears, and she turned to see that Arlene was awake. Her speech was laboured and difficult to understand, but she was awake and she knew her mother. In the days and weeks that followed, Arlene began to improve, slowly but steadily. Everything the doctors felt she would never be able to do again, she did. She sat up, she learned to feed herself, and she began to work towards a goal—to return to Cape Breton. Other patients in the rehabilitation centre saw her progress as an inspiration: if this young woman could recover from such a tragic and serious injury, then others, too, would work harder to get better.

  Germaine MacNeil explained to her daughter why she was in hospital, what had happened, and who had done it to her. But Arlene remembered nothing about the incidents of May 7. She would never be a witness.

  For the family of Jimmy Fagan, summer was a painful reminder of how deep the loss was. A summer cottage at the lake, usually the centre of family activity for the Fagans, was used very little in the warm months of 1992. Jimmy loved the times at the cottage, and going there without him left his parents, brothers, and sisters with an empty feeling. The fun in the sun just didn’t have the same appeal any more. The landscaping company owned by one of the Fagan boys was kept busy through the summer months, but whenever a job took his brother to the Sydney Forks area, he would take the time to wander up to Jimmy’s grave. Jimmy should be working with him, bringing his inimitable humour to even the most tedious jobs. Why was he dead?

  The summer was no easier on the relatives of Derek Wood, Freeman MacNeil, and Darren Muise. They too were asking why. How could their boys be involved in something like this? The murders had thrown their lives into turmoil, as they offered love and support to their children and examined what they had done in raising them. Could they be responsible for what had happened? People always blamed the parents, didn’t they? Friends and neighbours could s
ee a difference in the parents of the three accused men. Smiles and casual, friendly greetings had been replaced by a stern, distant look. Unlike the families of the victims, who had found strength in each other, the parents of the accused suffered alone. I talked with Gail Muise periodically that summer; the first contact was awkward, especially because I had been covering the case, but when we met in a coffee shop she simply told me she understood that I had a job to do. After that, whenever we met she would talk about the case and about Darren. She visited him occasionally in the Halifax jail and accepted that he would have to pay a debt for what he did. She still did not know what his involvement in the case was, but was anxious to see the trial over and the challenge of rehabilitation begin. “Whatever he did—” and she reached over and touched my hand—“even if he just drove the car, or held open the door, we know he has to take responsibility for it.” Gail Muise had always been an energetic, cheerful woman, but that was no longer the case. It was as though someone had pulled the energy—the very life—from her body. She was going through the motions, but the pain in her eyes was unmistakable.

  As summer turned to fall, attention turned to the tiny provincial courthouse in Glace Bay, near Sydney. The preliminary hearings for Derek Wood and Freeman MacNeil were being held there because of ventilation problems at the old courthouse in Sydney. Because evidence brought out at preliminary hearings must eventually be heard by a jury, there is a ban on publication or broadcast of evidence. The October hearings gave the relatives of the victims their first chance to hear the evidence in the case, but did not thrust them into the centre of a media feeding-frenzy. Without the freedom to report on evidence being presented, many news organizations decided to monitor the hearings but not staff them full time. The hearings were short, and by the end of October both Wood and MacNeil had been ordered to stand trial.

  Meanwhile, Muise’s lawyer was busy working on another aspect of the case. Joel Pink wanted his client’s trial moved out of Cape Breton. In a change-of-venue hearing, he presented the court with volumes of newspaper clippings, along with hours of television and radio reports on the McDonald’s murders. Pink argued that the media attention made it highly unlikely that an impartial jury could be found in Cape Breton. Lawyers for the other two accused soon joined in the argument—all three men wanted their trials moved away from the anger they had witnessed outside the courthouse in Sydney. The change-of-venue applications outraged the Burroughs, Warren, Fagan, and MacNeil families, who felt it would be unfair for them to have to leave home to attend the trials. They were relieved when Nova Scotia Supreme Court Justice William Kelly decided to put his faith in the integrity of the jury system. The trials would be held in Cape Breton.

  As 1992 drew to a close, there was a major change in the Crown Attorney’s Office in Sydney. In the period between the preliminary hearings for Wood and MacNeil, and the arguments over where the trials would be held, Frank Edwards was appointed to the county court bench. Justice Edwards was not going to prosecute what would have been the biggest case of his career. However, he did move up rather quickly in the judiciary; soon after his appointment, the county court system was eliminated in a justice department reorganization, and Frank Edwards became a provincial Supreme Court justice. The appointment meant a scramble at the Crown office; someone else would have to handle the file—and face the promise made to the victim’s relatives: first-degree murder convictions on all counts. While the job of regional Crown prosecutor would have to wait to be filled, the McDonald’s file could not.

  Ken Haley and Brian Williston added their names to the list of lawyers vying for the job. Within weeks, Brian Williston had a change of heart and withdrew his name from the job competition. He wanted to continue as a trial attorney, and he didn’t want the extra paperwork that came with the regional Crown title. Ken Haley became interim manager at the office and took the lead in preparing the file. Both Haley and Williston agreed that a third prosecutor was needed, but it would be too big a drain on the Sydney office to designate someone from the limited pool there. Haley contacted the Attorney General’s Office and said he wanted to borrow a prosecutor from elsewhere in Nova Scotia. Halifax-based lawyer Marc Chisholm, one of Nova Scotia’s highest-ranking crown attorneys, volunteered to work on the case, and Haley and Williston welcomed him to the team.

  The three men threw themselves into their work. They decided early on that each attorney would take the lead role in one of the prosecutions, but they would work together on each of the cases. Brian Williston, who had asked Edwards for the Darren Muise file, changed his mind. Muise’s grandmother was a courthouse employee, and Williston felt it would be a little awkward for him to work on that case. Chisholm took the Muise file, Williston took Freeman MacNeil, and Haley began to prepare the case against Derek Wood.

  As he sorted through the work Williston had already done on the file, Chisholm decided it was time to talk with Brian Stoyek. After the meeting, the prosecutor knew he had a problem: Stoyek had told him about letting Darren Muise know how he felt about him. A judge might see it as intimidation for a man the size of Stoyek to call an average-sized eighteen-year-old a “cold-blooded killer”—unless the judge saw and heard how Muise had reacted to the officer. And there was another problem. Dave Trickett, in his effort to persuade Muise to confess, had told the young man it would be better for him to tell his story before he went to court, if he expected a judge to believe him. Chisholm wondered whether a judge would consider that an inducement. The arguments over the circumstances of Muise’s confession would be crucial to the case against him; the confession might not be ruled admissible as evidence if a judge ruled that either officer’s comments were improper.

  Ken Haley, who had worked briefly as a Legal Aid lawyer before joining the Crown office, decided to approach the Wood file from a defence lawyer’s perspective. Williston tackled the MacNeil file with his usual penchant for detail, and the change of focus gave him a renewed energy. And the new guy in the office shared his colleagues’ enviable work ethic. For a while, the prosecutors’ family lives were put on hold; they had agreed from the start that they would give the file the same dedication the members of the investigating team had. But that didn’t mean there was no room for the lighter moments, which often developed around Brian Williston’s keen critical faculties. It seemed that every time his colleagues developed a theory or an approach, Williston would uncover an obscure item in the file, or some fine point of law, that put the new theory in question—a tendency that earned him the nickname “Black Hole.”

  Williston’s intense concentration on the file also produced a running joke among the lawyers. It all started late one Wednesday night. The three prosecutors had been working on the file all day and into the evening, debating the strengths and weaknesses of the legal arguments ahead. They reviewed typed transcripts of the Derek Wood interrogation; watched hours of video tape, recorded the night he confessed; and searched the legal library for precedents for and against the admissibility of a confession. When they realized they were too tired to continue, Haley suggested they resume that particular review the following evening, but Williston rejected the idea. “I can’t do it tomorrow—I’ve got a commitment,” he explained. “Can we do it Thursday instead?” Haley and Chisholm looked at each other and laughed. Expressing their hope that the commitment wasn’t too important, they informed Brian Williston that tomorrow was Thursday, and whatever he had planned for Wednesday night had already gone by the boards. As the weeks of late-night work continued, Haley and Chisholm got into the habit of ending the sessions with: “Well, we can’t get back at this tomorrow. Let’s do it Thursday.” The remark worked best when one or all three of the hard-working lawyers had reached the point of being too tired to concentrate any longer. They could laugh a little, and relieve stress at the expense of Brian Williston’s need for a social secretary.

  The prosecutors were not alone in their work. Police were giving them all the assistance they could, and the Crown attorneys were especia
lly impressed by the diligence of Henry Jantzen, who was responsible for all the exhibits to be used during the trials. If the attorneys needed a particular item or had a question about one of the interviews with the accused men, Jantzen came through quickly. He also helped prepare a detailed document that showed the similarities and differences in the confessions made by the three men; the big, burly officer had a bit of the paper-shuffler in him, and this surprised the prosecutors.

  Once the prosecutors had clawed their way through the mounds of paper Kevin Cleary had provided, they began interviewing prospective witnesses as they prepared to work out the least-confusing way to present the cases to jurors. The prosecutors knew it was going to be a tough fight, but they would try to keep Frank Edwards’s promise to the victims’ families and go after first-degree convictions against all three accused men. Because of this decision, they rejected a feeler sent out from the office of Joel Pink, who wrote asking if lesser charges might be considered by the Crown. The prosecutors were not sure what Pink was implying by that request; they believed they might be able to work out a deal that would see Darren Muise take the stand in the trials of Derek Wood and Freeman MacNeil, but that offer was not made in the letter. However, the prosecutors felt it was a safe bet that Pink would at least discuss the matter with Muise if the Crown agreed to move down from the first-degree murder charge against his client. Muise, after all, had broached the subject of a plea bargain with Dave Trickett before he took his lie-detector test. Whatever the letter meant, though, they had no intention of making any deals.