Murder at McDonald's

by Jessome, Phonse;

  Later in the trial, I had an entirely different kind of experience with the Burroughs family. Cathy Sellars, who had stayed in court during Derek Wood’s trial to see the crime-scene video, found herself recalling that haunting image as the pathologist detailed the wounds her brother Neil had suffered. She felt her whole body weaken, and she rushed towards the exit, where she collapsed. Brian Burroughs lifted his sister in his arms and ran out of the courtroom, not at all certain where he was going. The ATV camera recorded the panicked Brian carrying Cathy, her arms and legs dangling at his side, and I used the shot in that evening’s wrap on the trial. Later, as I walked to my car, I remembered the judge’s lecture. Maybe he was right; maybe I had no sense of human decency. I could have filed a report without showing the tape of the unconscious Cathy Sellars, but I used it anyway. The image powerfully demonstrated the emotional turmoil these families were undergoing, but now I wondered if it would only serve to heighten their anguish. It was too late to change my mind—the report had already been aired—and I knew I would have to face Cathy and Brian in the morning. I had developed a pretty good relationship with them, but the lambasting I had taken a few days earlier made it clear that they would feel free to tear a strip off me if they were upset about the report.

  The following morning, as I arrived at court, I saw Brian and Joey Burroughs standing outside, talking with Ernie Sellars, Cathy’s husband. Well, here it comes, I thought, as Joey approached. “Look, we just want to thank you for last night,” he said. It was not the greeting I had been expecting. “It’s about time people saw what this trial is doing to us,” Joey continued. “We gotta sit here and listen to this bullshit every day, while he sits there with his lawyer, making sure his rights are protected. Nobody gives a damn about our rights.”

  I turned to Ernie Sellars: “How’d Cathy feel about seeing it?”

  “She thinks it was good, too. But she was happy you couldn’t see her face.”

  I thanked them and hurried into the court building, wondering why I had been so worried. My instincts had been correct: the shot showed what the families were going through. But once again, I was concerned about getting too close to the people involved in this story. Many of them were beginning to treat me like a close family friend; Olive Warren had even invited me to sit in the section of the courtroom reserved for the families; she felt I belonged there. I knew it was important to develop a relationship with them in order to tell their story effectively—and this was definitely their story, not just an account of perpetrators and deceased victims. Their presence in court every day had given this trial an entirely different dynamic; most murder trials are dry, routine events, with legal issues argued by robed attorneys in front of jurors who do not know the people involved. But the McDonald’s trials brought home to everyone involved that the victims were real people, who were loved and missed, and that no amount of legal debate could ease the pain felt by those left behind.

  Still, the challenge was to remember that although the victims’ relatives were an important part of the story, my responsibility was to cover the court cases in a balanced way. I made a point of interviewing Kevin Coady regularly and asking how MacNeil was handling the pressure. And I tried to show in my reports that MacNeil’s mother was as distraught as the relatives of the victims. This was hard to accomplish, because Mrs. MacNeil tended to avoid our camera, spending most of her time in a private room, where she stayed until the court was called to order. There wasn’t even much of a photo opportunity when she entered the courtroom; she was not stopped and searched at the door, because court officers logically assumed the accused’s mother was not about to do him any harm. When we finally managed to record a shot of Freeman’s mother and sister entering the court, it was really too brief a moment to portray much of the emotion she must have been feeling. MacNeil himself was holding up well, according to his lawyer. Coady said he was amazed at the character of the young man and his ability to deal with the trial and what it meant to his future.

  Late on Thursday, September 30, Brian Williston wrapped up his case with the testimony of Kevin Cleary. The defence case began the following Monday, and it quickly became clear why Coady had asked all those questions about his client’s state of mind after the crime. He hoped to convince the jury that Freeman MacNeil could not have intended to kill Neil Burroughs or James Fagan, because he was suffering from post-traumatic stress syndrome. First diagnosed in soldiers after battle, this condition can cause mental numbness and shock in a person exposed to a cataclysmic experience—extreme violence, for example, or a serious car accident. The symptoms apparently become more extreme when the sufferer is not in control of what is happening. Post-traumatic stress syndrome has been used successfully in a number of court cases as an argument for diminished capacity—a reduction in one’s ability to think about an action while it is being carried out. If proved, it makes for a solid argument against a murder conviction, because to commit murder a person must form the intent to kill or to inflict severe injury that is likely to kill.

  To prove his theory, Coady called Ottawa-based forensic psychiatrist Dr. John Bradford, who had visited Freeman MacNeil at the Cape Breton County Correctional Centre on August 13 and interviewed him for three to four hours. Dr. Bradford said he examined MacNeil’s family background to see if he exhibited any early signs of mental illness, and although there were no such indications, he pointed out that MacNeil’s father had committed suicide by shooting himself, which the psychiatrist considered significant. Dr. Bradford had been called as an expert witness in many trials, and he testified in a clear and confident tone, and made every effort to explain post-traumatic stress syndrome in an understandable way. It was his opinion that MacNeil suffered from symptoms of this condition, including vivid dreams and flashbacks related to the killings. In particular, he had told the doctor about a recurring image of Neil Burroughs after he was stabbed by Darren Muise. Apparently, the condition set in immediately after Derek Wood shot Arlene MacNeil, an act MacNeil had no control over. During his interview with the psychiatrist, MacNeil described feeling numb and confused after Arlene was shot, adding that he felt emotionally numb when he hit Neil Burroughs with the shovel handle. The doctor concluded MacNeil did not have a normal, functioning mind when he hit Burroughs or when he shot James Fagan.

  Brian Williston listened attentively, taking extensive notes, then launched into a lengthy cross-examination focused on the fact that the psychiatrist had based his diagnosis on what the suspect told him; in other words, if Freeman MacNeil lied to him, the diagnosis was faulty. Couldn’t the doctor have conducted tests to determine the accuracy of MacNeil’s claims? Apparently so, but those tests were not administered. And Dr. Bradford had to concede that it would have been helpful for him to see the video-taped re-enactment MacNeil had conducted for police on May 15, 1992, to see how the young man had behaved at that time. As far as the victims’ families could see, Williston had successively discredited the doctor’s testimony. But Williston was not so confident; he intended to call psychiatric evidence on his own, on rebuttal, but first he had to wait for the defence to finish its case.

  The only other defence witnesses were the mother and sister of Freeman MacNeil’s girlfriend. They testified about seeing the silver gun—the gun used in the murders—and showing it to a girl who was dating Derek Wood. Margaret Chiasson said she found the gun in her husband’s dresser and thought it was pretty, so she showed it to her daughter and Wood’s girlfriend. That incident occurred some time before the robbery and raised the possibility that Wood might have taken the gun. If the jury would not accept the post-traumatic stress theory, they might believe MacNeil didn’t know that Derek Wood had the gun that night. On cross-examination, Mrs. Chiasson said that Freeman MacNeil slept at her home on the night of the murders and that he was surprised when she woke him and told him about radio reports of the shootings. She smiled at MacNeil as she left the witness stand.

  With the defence case concluded, Marc Chisholm called Dr. S
yed Akhtar, the psychiatrist in charge of the Nova Scotia Hospital’s forensic services unit. The prosecuting team had had a bit of a debate over calling the psychiatrist to the stand. Haley believed Williston had successfully discredited Dr. Bradford’s evidence, and wondered if the rebuttal might give jurors the impression that the doctor’s evidence was so important that it required countering. But the prosecutors finally agreed that a second opinion was just what the jury needed. He was right. The small, fragile-looking Dr. Akhtar not only criticized Dr. Bradford’s methods, but also strongly disagreed with the other psychiatrist’s findings. Dr. Bradford should have done much more than interview Freeman MacNeil if he wanted to make a proper assessment of the young man’s condition during the crime, he said, then went on to mention factors which, he felt, pointed away from a finding of post-traumatic stress; the detail of the confession, for example, and MacNeil’s actions after the crime.

  In his cross-examination, Kevin Coady only succeeded in further discrediting his own star witness and getting himself in a tangle. He tried to persuade Dr. Akhtar to admit that, had he examined Freeman MacNeil, he might have come to the same conclusion as Dr. Bradford. Much to the displeasure of Justice Gruchey, the witness pointed out that he had wanted to talk to MacNeil, but that Coady would not allow it. Coady then tried to set up a hypothetical scenario for the doctor—let’s say he talked to MacNeil, and was given the same answers, and was convinced MacNeil was being truthful. Could he have come to the same conclusions? But Dr. Akhtar knocked that theory on the floor. “It’s highly unlikely I would come to the same conclusion that Dr. Bradford did,” he said. “I don’t agree with his diagnosis. It must be post-traumatic. You need time to develop this syndrome. At the time of the crime, he would not have had it. He may have it now, but not then.” Brian Williston smiled as his final witness stepped down. At 4:20 p.m. on October 4, 1993, the last of the evidence in the three McDonald’s murder trials was in. All that remained was for the jury to hear arguments from the lawyers and the charge from Justice Gruchey. They were told to get a good night’s sleep and return in the morning.

  In his closing arguments, Kevin Coady told the jury that things were not always what they seemed to be. Members of the victims’ families cringed when he described the murders as a robbery gone bad, a characterization they were tired of hearing. The defence attorney went on to point the finger of blame at Derek Wood: “It happened because Derek went nuts,” he said. “Derek Wood was the author of the carnage that took place inside that restaurant, [and there was] no question Darren also caused injury to Burroughs.” Coady struggled to ignore the muffled reactions of the victims’ relatives as he tried to downplay the role his client played in the murders, in particular the murder of Neil Burroughs. “Wood or Muise caused his death. The only thing he did was hit him with a stick. The stick did not kill Mr. Burroughs, [and it is] questionable if this hit would even knock him out. The responsibility for Burroughs’s death lies with Muise and Wood.” And he asked the jurors to consider Freeman MacNeil’s state of mind at the time of the murders, to think about what Dr. Bradford had to say. “What made Mr. MacNeil shoot Mr. Fagan? He had not become involved in the shootings to that point. He was not able to resist the orders of the other two. He was not of an operating mind at the time.” Kevin Coady finished his difficult task in thirty-seven minutes, his quiet, sombre tone perhaps disguising the anxiety he was experiencing, aware as he was that his job was to properly represent his client, but equally aware that he was the subject of the intense dislike of some of the people sitting behind him.

  Brian Williston began his final remarks after the lunch break. Unlike his opponent, he had the benefit of knowing that most of the people in the room were silently cheering him on. Most, but not all: Freeman MacNeil’s mother and sister sat at the side of the courtroom, farthest from the victims’ relatives. The MacNeils had attended the entire trial, and now they listened quietly as Brian Williston told the jury what he believed was the impulse that led to the murders—“the thirst for money.” The prosecutor went on to explore the reason for Neil Burroughs’s murder, emphasizing that the blow with shovel handle was a major contributing factor in his death. “Why did he hit Neil Burroughs with the shovel handle? To assist his partners in ending the life of this man who was alive and could identify him. He was already shot and cut—then struck with the stick. This blow contributed by keeping him down and less able to resist his attackers.” Williston told the jury that Freeman MacNeil killed, and watched his friends kill, but it did not play on his conscience. “Don’t let him fool you. You will know the truth.”

  The summation took just under an hour. Afterwards, Justice Gruchey told the jurors to return the following morning—with overnight bags, in case they found themselves deliberating for more than one day. As Justice Gordon Tiddman had done in the Wood trial, Justice Gruchey began his charge the next morning by asking the jury to put aside the natural emotions stemming from this brutal crime, and to disregard the public outcry that had followed the murders. In order to find MacNeil guilty of the first-degree murder of Burroughs, he said, they would probably have to accept that the murder had occurred during the unlawful confinement of Donna Warren, and that MacNeil was a party to that confinement. And to find him guilty of the first-degree murder of James Fagan, they would have to find that the unlawful confinement was part of one continuous criminal activity—although Donna was already dead when MacNeil shot Fagan—or that MacNeil deliberately planned to kill Fagan to eliminate him as a witness.

  While the jury was sequestered, the relatives gathered in groups and talked about the case—and anything else they could think of to keep their minds off the slowly ticking clock. For Julia Burroughs, spending time in Halifax for the trial meant she had to be away from her son; she missed Justin a great deal, and knew from talking to him on the phone that he was more than anxious for his mom to return. But there would be no verdict that day. The jurors were taken to a hotel, and the relatives left.

  Ken Haley would not be back to hear this final verdict in the McDonald’s case. Early the following morning, before deliberations resumed, Haley received a call from home. His father had succumbed after his long battle with cancer—perhaps, his son thought, he waited until the prosecutors had finished their work and the case was in the hands of the jury.

  By about five o’clock that evening, it seemed a verdict was forthcoming. The jury asked for a little more time when the judge offered to send them back to the hotel for the night, but half an hour later they sent out a note, saying they had better sleep on it again. On the morning of October 8, the large public foyer outside the courtroom once again filled with reporters, camera operators, police officers, sheriff’s deputies, and the anxious relatives of the McDonald’s victims. This time, Brian Williston joined those gathered in the common area; he too was beginning to wonder what was keeping the jury. At one point, Germaine MacNeil went into the room where Freeman MacNeil’s mother sat waiting with her daughter, and asked the other Mrs. MacNeil to come and see her daughter—to see what “they” had done to Arlene. Germaine was red-faced and crying, and sheriff’s deputies avoided a confrontation by quickly asking her to leave the area. It was an awkward moment for those waiting in the hall; both women were clearly victims of this crime. Throughout the trial, Freeman MacNeil’s mother avoided all contact with the media, the police, and others gathered outside Courtroom Three. She remained secluded in the small witness room set aside for her, and as she entered and left the courtroom, her head was always low. She would not show the anguish she must have felt. Freeman was her baby, and although he was still alive, there was no question she was losing him. He would not be coming back home.

  Finally, at about 11:00 a.m., the jury sent its notice to the judge: the verdicts were ready. While intense security had become part of the routine of the trial, it somehow seemed particularly obtrusive to the victims’ relatives this time. When Jimmy Fagan’s brothers were asked to remove their cowboy boots so they could be searched
for weapons, they joked about the process, but inside they felt humiliated. Neil Burroughs’s father looked angry but remained silent as a contingent of security officers escorted Freeman MacNeil’s relatives to their seats. All he could think about was that those people were not being harassed, but he and his family were. Inside the courtoom, the tension increased when the relatives saw that a large, heavy court table had been placed across the gate between the public area and the main court, and that the prisoner’s chair had been moved several metres beyond the waist-high bar that divided the room. As well, there were twenty-five officers crowded into the court, most seated between the public gallery and the area occupied by the judge, jury, lawyers, and accused, and there were a few RCMP officers stationed at the back of the room.

  Before asking the jury to come in, Justice Gruchey urged the victims’ families to maintain the composure they’d shown throughout the difficult trial. “Please, when the verdict is brought in, I ask that you maintain that dignity. Any demonstrations now—any untoward action—will reflect badly on the excellent names and reputations you clearly deserve.” Once again, anxiety and stress built as the relatives waited to hear what a jury of strangers had to say about one of the men responsible for taking their loved ones away. Neil Burroughs, Sr., continued to fume at the spectacle of the intense security measures court officials felt were needed to protect Freeman MacNeil. Why was MacNeil being protected, while he and his family were made to feel like criminals? The jury foreman began to read the verdicts, but unlike Justice Tiddman, who had detailed each charge against Derek Wood before asking for the verdicts, Justice Gruchey simply listed the counts by number, and the jurors responded with verdicts: count one, guilty as charged; count two, guilty as charged; count three, guilty of second-degree murder; count four, guilty as charged. There was confusion in the courtroom, and the victims’ relatives questioned each other frantically as they tried to determine what each count meant. The second-degree verdict had to be either for Jimmy’s or Neil’s murder, but for a few agonized moments no-one was sure which was which. Finally, all became clear: the jury had found MacNeil guilty of the first-degree murder of Neil Burroughs; Jimmy Fagan’s killing was a case of second-degree murder. In addition, MacNeil was also found guilty of the robbery and the unlawful confinement. The verdicts made it clear that the jury had not accepted the evidence of Dr. Bradford; had they agreed that MacNeil was suffering from post-traumatic stress syndrome and had a diminished mental capacity, the verdicts would have been manslaughter, not murder. Apparently, the jurors concluded that the blow to Neil Burroughs did contribute to his death, which occurred while MacNeil was participating in the unlawful confinement of Donna Warren. But the jurors clearly had decided that the confinement ended with Donna’s death, and thus could not be connected to the shooting of Jimmy Fagan. They believed that MacNeil killed Fagan, but not that he planned the murder; they must have decided that the shooting was a spontaneous act.