Murder at McDonald's

by Jessome, Phonse;

  The building that houses Halifax County and Supreme Court is located on Upper Water Street, in the heart of the city. Courtrooms, judges’ chambers, and associated offices occupy much of the large building, and the business of justice keeps the place buzzing year-round. To facilitate security for the MacNeil trial, it was scheduled for Courtroom Three, which has a side door leading to a hallway away from the public area, enabling sheriff’s officers to move a prisoner in and out of the room without interference. On the first day of his trial, MacNeil arrived in a prison van, which passed through the underground parking garage to a second, more secure, garage beyond a large motorized door—and that door was lowered before MacNeil was taken from the van to the holding area. Since there was no camera access to him in this building, we would use tapes recorded during MacNeil’s court appearances in Sydney, the best of which came from the hearing for his change of venue—he was led directly in front of the television cameras and into a makeshift courtroom that was being used while the provincial government decided what to do about air-quality problems in the old Sydney courthouse. MacNeil looked right into the cameras that day, and the ATV editors used slow-motion and freeze-frame technology to capture the moment when his eyes met those of the viewer. This was the image we used throughout the trial.

  The jury-selection process that began MacNeil’s trial was similar to the one for the Wood trial, although there were fewer potential jurors. By the second day, six men and six women had been selected to hear the case; but their job would not start until after the voir dire hearing into the admissibility of MacNeil’s statements to police. This time, the prosecutors were much more confident of victory. Brian Williston, who was prosecuting the case, had thought of little else over the summer; in fact, he took the bulging MacNeil file along with him on what was supposed to be a family vacation, in Prince Edward Island. One day he even hauled the file to the bank of pay phones near the paddle-boat pond at Rainbow Valley tourist park; while his wife and children enjoyed the park’s many attraction, Williston spent more than two hours on the telephone to Ken Haley back in Sydney. He was more than ready for this hearing, and he was gratified to see Al and Theresa Fagan seated in the courtroom; more than in any murder case he had ever handled, Williston felt a strong sense of connection to the victims in this case.

  The other victims’ relatives were back in Cape Breton waiting for the scheduled start of testimony on September 21, but the Fagans had decided they would not miss a moment of the trial. Freeman MacNeil had confessed to shooting their boy, and these proceedings would determine if that confession could be used in the trial. They had to be there.

  Freeman MacNeil fixes the camera with an icy stare as he enters the courtroom for his change-of-venue hearing. The image was used by ATV throughout his trial. [Print from ATV video tape.]

  For the first day of the hearing, MacNeil wore a conservative grey suit, white shirt, and dark tie; his glasses and clean-cut appearance, and the way he talked with his lawyer—confidently, but with respect—suggested a university student on his first job interview, not a killer on trial. MacNeil’s lawyer, Kevin Coady, sat near his client, his greying hair and thick moustache adding to his look of concern. Although the victims’ families saw him as just another Halifax lawyer, Coady was in fact a Cape Bretoner. He had grown up in the Margaree Valley, one of Cape Breton’s most-scenic communities, but not one that required the talents of a trial attorney on a regular basis. Coady could make a better living working in the Nova Scotia capital, where he now prepared to fight one of the toughest battles of his career.

  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 wer
e being treated by the justice system.

  This was not the only point of disagreement among the relatives. Another incident of friction arose when one of Neil Burroughs’s sisters called out to Greg Lawrence as he was led from the courtroom after his testimony. Concerned for Lawrence’s safety, the RCMP took Francine Fortune to a back room and kept her there until Lawrence was safely away from the court building. This infuriated the Burroughs family. They could not believe that the diminutive Francine was being detained, while the man who knew in advance that the McDonald’s robbery would occur was being protected. As I walked out of the courtroom that day, I was confronted by several angry members of the family—most notably Francine herself. “Where the hell were you?” she demanded. “You’re out here every day with that camera, taking pictures of us. Why weren’t you chasing after him and asking him why he didn’t call the police?” Her father was also upset: “Goddamn it, they shouldn’t treat us like this! Why can’t you show how they’re treating us?” It was pointless to explain that I had no idea a confrontation was occurring outside, because I had been talking with the prosecutors. All I could do was stand and listen as they vented their frustrations. Finally, as they left for lunch, I asked Joey and Brian Burroughs to return in an hour and talk on camera about what had happened. I glanced over at the cameraman assigned to work with me for the day and wondered why he had missed all the activity in the hall. Meanwhile, members of the Fagan family were also upset about the confrontation—but for entirely different reasons. They were afraid the outburst might have an impact on the trial and somehow allow Jimmy’s killer to go free. The clash of opinions led to cross words between members of the two families that demonstrated the pressure the victims’ relatives were under. Even within the Burroughs family, the incident caused acrimony; Neil Burroughs’s widow did not care for the public outbursts of some of her in-laws. It seemed the strain of the trial and the isolation of life away from home was driving people apart—people who had once hugged each other and cried together as though they belonged to the same family.