The prosecutors involved in the McDonald’s murder cases argued that the information would still become public; it was simply a matter of waiting until the final trial ended. But media lawyers argued that that wasn’t the point. Banning publication or broadcast of testimony is just the first step, they said—what about extending the ban to the identity of someone who is acquitted? That would not be in the public interest: people need to know that everyone is treated equally before the courts, and judges must be subject to close public scrutiny, so they cannot succumb to the temptation to abuse their power by showing favouritism to friends.
Shortly after nine-thirty, the families of the victims settled into their reserved seats at the centre of the courtroom, with reporters on their left and members of the public occupying the remaining seats. Front row centre was reserved for security personnel, who sat just behind a metal bar that divided the room in half and kept Derek Wood sequestered in an area off limits to everyone except court officers and lawyers. The effect was of a room split down the middle by a picket fence, topped by a dull grey railing in which two openings had been cut—these were to allow lawyers and witnesses to come and go.
Just beyond the railing were the chairs in which Wood and a contingent of security officers would sit during the trial. In front of these chairs, dominating the centre of the room, were two long tables, placed end-to-end: on one side, Ken Haley, Brian Williston, and Marc Chisholm sat huddled over their file in a flurry of last-minute preparation; at the other end, Art Mollon and Allan Nicholson also pored over their notes. Beyond the lawyers’ tables sat the clerk who would swear in witnesses, roll-call the jurors, and number and label exhibits as they were introduced. And beyond the clerk’s table stood a raised oak bench, which matched the panelling that covered the courtroom walls. The judge’s chair was at the centre of that bench, and on either side were the doors to two private rooms—the judge’s chambers and the jury room. Off to one side of the bench hung the only adornment on those dark wooden walls—a portrait of the Queen and a Canadian flag.
Before calling the jury, Justice Tiddman dealt with the preliminary issues. Visible relief illuminated the faces of the three Crown attorneys as Tiddman ruled that he would allow Derek Wood’s confession. Art Mollon and his colleague Allan Nicholson were impassive; they had already decided to appeal if the ruling went against them. Next, the issue of access—and now it was our turn to be relieved. We could report on all testimony except evidence that would implicate Darren Muise and Freeman MacNeil in the crimes for which they would later stand trial.
Finally, it was time for the trial to begin, and Ken Haley stood to make his opening remarks to the jury. His tall, heavy-set body and thick, dark hair made him an imposing figure, and his comments were equally striking. Haley promised to prove that Derek Wood planned and carried out the robbery at the Sydney River McDonald’s, and that during the robbery he shot Arlene MacNeil, Neil Burroughs, and Donna Warren. That simple statement began the longest three weeks of Haley’s life.
As his first witness, Haley called Constable Henry Jantzen, who had been appointed exhibit man and who would present the court with all the physical evidence gathered during the investigation. When Jantzen was about to play the video tape recorded at the crime scene, Justice Tiddman issued a warning to the victims’ relatives: it was very important for the jury to see the tape all the way through, he said, so anyone who did not feel strong enough to see the disturbing, graphic images should leave the courtroom until the screening was over. Several women and a few men rose from the reserved seats and headed for the hallway; those who stayed behind regretted the decision within minutes. The lights in the courtroom were dimmed, and Henry Jantzen turned on a video projector that would display the taped images on a large screen in front of the jury box. TV monitors had also been set up so that Wood, the lawyers, and the judge could watch.
The courtroom was silent as the rear of McDonald’s, guarded by police officers, appeared on a large screen in front of the jury box. [Print from ATV video tape.]
The room was silent and the tension palpable as the back of the restaurant appeared on the screen. Then, the view shifted to Ident officer James Leadbetter’s video tape of the crime scene; the onlookers watched in silence as the camera slowly moved towards the spot where Jimmy Fagan had fallen. There was nervous shuffling from Fagan’s family when they saw his blue kitbag and baseball cap on the ground, and then the weeping began—the screen seemed to fill with blood as the camera panned along the section of floor inside the restaurant where ambulance attendants had worked frantically to try to save Jimmy. Tears welled in the eyes of Cathy Sellars, a sister of Neil Burroughs, and a moment later the short blonde woman gasped and forced her eyes downward, sobbing audibly. The camera had moved to the area by the sinks, where Neil Burroughs lay, face down, surrounded by a frighteningly large pool of blood. Neil’s brothers also began to cry as they looked at his helpless body on the floor. Finally, the grotesquely oversized image of Donna Warren’s lifeless form appeared on the enormous screen, and Olive Warren broke into tears. Fighting for control and scolding herself for staying in the room in the first place, Olive forced herself to look away from the screen. Like Cathy Sellars, she stared down at her lap, hoping no-one would see her heartbreak.
The jurors sat transfixed by the images they were seeing and the emotion they were hearing; these bloodied bodies were not actors, and this was no movie. With the painful clarity of sudden awareness, the jurors realized that they were the ones responsible for passing judgment on the man believed responsible for the horror they were witnessing. The two women on the jury covered their mouths with their hands as they forced themselves to watch. An elderly man in the front row, who had spent much of the screening in a state of shock, went scarlet with outrage and empathy as the cries from the victims’ relatives reached him. The cries were not loud, but in the shocked silence of the courtroom, they were impossible to miss. Meanwhile, Derek Wood sat between two guards with his head down and his eyes closed. He had already seen the tape in jail, at his lawyers’ insistence, and now he showed no reaction to it—or to the sounds of grief behind him. Later, he told the guards he had drifted off to sleep while the tape was being played in court; they said they didn’t believe him.
Two final images, poignant and horrible, awaited those in the courtroom. There, in a pool of blood, were the wooden sticks Arlene MacNeil had been sorting for a child’s birthday party. And there was the image that had haunted Kevin Cleary ever since the early-morning hours of May 7, as he picked his way through the restaurant kitchen—an open safe and the floor beneath it, strewn with, blood-soaked money.
I later asked Haley why he had chosen such a graphic record of the crime scene; weren’t there photographs of the crime scene that would have shown the extent of the crime without subjecting the victims’ relatives to the unforgettable impact of big-screen images? Haley said he agreed with my point, and explained that he had been against screening the tape; it was the defence team that had insisted on it being presented to the jury.
Allan Nicholson, the flamboyant associate of Art Mollon, explained this perplexing request as he chatted with reporters in the hall during a break. If he didn’t have preparations to make for the next witness, Nicholson often met with reporters during the recesses; he would lean against the railing of the stairs to the lower level of the building and sip from a can of Diet Coke, his beverage of choice while on the job. To see him standing there considering an answer to one of our questions—sipping his soft drink or running a hand through his thick grey goatee or his long grey hair—one might have been tempted to write him off as an eccentric. But that would have been a mistake. His answers were anything but erratic. On this occasion, explaining why he thought the video tape was crucial evidence, he told us that when Derek Wood was first taken into custody, only hours after the murder, there was no blood on his clothing or his sneakers, which were taken from him by police right then and there. Nicholson and Mollon wanted the jury to
wonder how anyone who was responsible for spilling so much blood could walk away without being covered in it.
After the video-tape screening, and after Henry Jantzen’s detailed account of what he had found when he got to the restaurant, the rest of the first day of testimony proved a little easier for the victims’ relatives to sit through; Daniel MacVicar and the other cab drivers gave their evidence, and so did the ambulance attendants. Outside, most of the family members who would speak to me said they felt the trial was proceeding well, but wondered why the defence lawyers kept questioning witnesses about the exact time of everything. Joey Burroughs, Neil’s brother, even approached me to ask why so much emphasis was being placed on time—what time the ambulance company received its call, what time the taxi drivers heard MacVicar’s distress call, what time Henry Jantzen was first contacted by the RCMP dispatcher. To Joey Burroughs, all that mattered was what had happened to his brother, and to Jimmy Fagan, Donna Warren, and Arlene MacNeil. I explained that lawyers on both sides were responsible for making sure that every detail was brought before the jury, and that the defence attorney’s reasons for making an issue out of the exact times would be made clear when they presented their evidence. After Joey Burroughs sought me out that way, there was a thaw in some of the other families’ attitudes towards me. I could feel they were slowly beginning to trust me; although they still refused to grant an on-camera interview, they did get into the habit of talking to me every day, before and after court. Sometimes the conversations were brief—a comment on the number of people lined up each morning to watch the trial, for example. The size of the crowd varied, but the victims’ relatives, like reporters and deputy sheriffs securing the building, noticed a disturbing trend as the trial continued. Whenever an evening news report described a day of testimony characterized by particularly graphic details, a large crowd would appear the following morning, hoping to hear more.
The second full day of testimony was a case in point. Dr. Dan Glasgow, the pathologist who had conducted autopsies on Neil Burroughs, Donna Warren, and James Fagan, told the jury how each victim had died. Nervously adjusting his glasses as he spoke, the heavy-set, fair-haired doctor struggled to calmly describe what had happened to the victims after the bullets were fired. The Crown had provided a head-and-shoulders mannequin, from a clothing store, and a long wooden pointer, to help the doctor with his testimony. Dr. Glasgow began with Donna Warren: “There were two firearm injuries to Donna Warren’s head, one with an entrance wound behind the top of the left ear,” he said, gesturing with the pointer, then shifting it around to the mannequin’s eye to show where another bullet had struck. As he spoke, there were gasps and cries from the centre of the courtroom: the sight of the mannequin was too much for Donna’s mother and grandmother. But they tried their best to control themselves. “The entrance wounds were compatible with a low-calibre, low-velocity weapon,” Dr. Glasgow continued. “There are no exit wounds, and as a result all bullet fragments were retained within the head.”
Ken Haley walked forward and handed the doctor one of the exhibits that had been introduced the previous day by Henry Jantzen—a small plastic pill bottle. There was a clicking noise as something inside the bottle tumbled about. “Yes, these are the bullet fragments taken from Donna Warren’s body during an autopsy I performed,” Dr. Glasgow said. “The fragments were placed in this bottle by me, initialled, and handed to Constable Jantzen, who was present at the time.” With that, the muffled sobs grew louder, as Donna’s relatives tried hard to erase the image the pathologist had just presented of the pretty, energetic young woman lying on an autopsy table. And it only got worse. The emotion and the stifled cries echoed throughout the courtroom with each excruciating detail of the wounds suffered by Donna Warren. The shot through her eye, which had been such a shock to everyone watching the crime-scene video, probably didn’t kill her, the doctor haltingly explained; the bullet had hit the bone behind her eye socket and deflected downward, coming to rest at the back of her throat and avoiding any damage to the brain. But the second shot, which entered the back of Donna’s head and travelled through her brain to lodge against the front wall of her inner skull, was fatal.
Dr. Glasgow, clearly moved by the anguish his words were eliciting, went on to discuss Neil Burroughs’s ordeal. His testimony confirmed for the Burroughs family what they had feared all along: Neil had died a long and horrible death. Weeping filled the room again, as the doctor talked about the gunshots—how the bullet fired into Neil’s ear travelled down into his mouth and caused no damage to his brain; how the shot through his forehead killed him, but possibly not right away; how the skin on his skull was torn away by gas blowing from the wound to the back of his head; how the weapon was pressed against his head when it was discharged. Then Dr. Glasgow described the knife wounds—how deeply and at what angle they penetrated Burroughs’s neck, and the extent of what he called “blunt trauma” to the victim’s forehead and nose. Because Derek Wood was not charged with Jimmy Fagan’s murder, the Fagan family was spared the gruesome details of the manner of his death; but for the Warren and Burroughs families, the cross-examination, towards the end of the day’s testimony, offered an even grimmer view of what had happened to Donna and Neil. Allan Nicholson asked Dr. Glasgow how much blood was likely to have splashed onto a person putting a gun so close to a victim and then firing. Clearly annoyed by this approach, Joey Burroughs marched out of the courtroom, muttering about Allan Nicholson and his questions. Olive Warren and her mother walked slowly down the stairs, comforting each other, their pain obvious to anyone who saw those quiet, deliberate movements.
By the third day of the trial, Joey Burroughs’s slowly building anger was beginning to spread to the other members of the victims’ families, who finally decided to start talking to reporters. What got them started was the testimony of Greg Lawrence: for the first time, they learned that Lawrence—and others—knew about the planned robbery weeks before the killings. Why had Lawrence not been charged? Had a deal been made to protect him from prosecution? How could Lawrence possibly have believed, as he said in court, that the robbery plan was not to be taken seriously? The victims’ relatives were disgusted when they found out that nothing in the Criminal Code compels people to come forward if they know a crime is about to be committed; that meant Greg Lawrence was entirely within his rights to withhold information, even if he did take the plan seriously. The anger brought on by the Lawrence’s testimony was in part directed towards the defence lawyers. After only three days of testimony, Joey Burroughs and his brothers, John and Brian, were afraid that Mollon and Nicholson would confuse the jury with questions the young men considered irrelevant, such as what time police officers arrived at the scene and how much information they gave Derek Wood the first night he was questioned. To them, the issue was simple: Derek Wood had confessed to killing their brother, and that was that.
Art Mollon, left, and Allan Nicholson during a break in their client Derek Wood’s trial. [Print from ATV video-tape.]
For the team of Nicholson and Mollon, it was an altogether different matter. Both lawyers had handled more than an average share of murder cases, and they had their own agenda and their own sense of courtroom style—no small aspect of any defence attorney’s effectiveness. Allan Nicholson’s almost-theatrical manner was enhanced by his long, greying hair and Old West–style goatee, and by the cowboy boots visible beneath his staid black-and-white court robes. A free spirit who loved to champion the cause of the underdog, Nicholson was perfectly suited to Legal Aid work. He also had a gift for hypothesis, which he occasionally tried out on reporters before presenting it to the jury. Overly zealous police methods were a favourite theory: everyone knew the police still used harsh methods to get the innocent to confess; police officers were just better at hiding it now. And emphasizing his version of police interrogation techniques for the benefit of the jury was a specialty of Nicholson’s. In contrast to his partner’s sometimes confrontational style, Art Mollon befriended witnesses and fr
equently capitulated to requests from the prosecutors. During questioning, his gaze would shift from his notes, to the witness, back to his notes, and then to the jury, his expression conveying the serious concern of a man who had to be sure that the facts were clear. He would frequently run a hand through his thick, greying hair, flicking the long wisps that were always falling in front of his eyes—the picture of a hard-working, determined attorney, who, like the Crown, just wanted to get to the truth here. If the prosecutors were a little off the mark in their charges against his client, well, he would help bring them around.
The backpack marked escape, which Derek Wood forgot when he and the other killers fled McDonald’s. His nametag, which was in the pack when police found it, was identified in court by a restaurant manager. [RCMP crime scene photo.]
The final witness on the third day of the trial, May 12, was McDonald’s manager Phyllis Kowalczyk. Her testimony, too, was difficult for the victims’ relatives to hear, because it brought home in stark terms what they already knew—that all four victims could, and should, have been somewhere else when the robbery occured. Jimmy Fagan would have been on the witness stand, not in a grave, if he had come to work on time instead of an hour early. Neil Burroughs, who had been off work for more than two months after injuring his back in a car accident, could have stayed away a little longer, but instead traded shifts with Jimmy and took the easier workload. Arlene MacNeil had finished her work, and should have left at the same time as Derek Wood and the other evening-shift employees. And Donna Warren, who was scheduled for the day shift, took the swing shift for another manager.
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