The Wrongful Conviction of Donald Marshall, Jr. (1971)
Like many teenagers, Donald Marshall ,Jr. spent his free time drinking, smoking and hanging out with friends at a local park. As he grew older he could've been an aboriginal leader and a hardworking citizen, but because being in the wrong place at the wrong time, his whole life changed dramatically. The Donald Marshall case is one of the most controversial and important cases in the history of Canadian law. Marshall was convicted of a murder he did not commit and his case reveals major flaws and injustices in Canada's criminal law system.
Aspects of Canadian Law that are involved in this case are : Criminal Law
The Incident
On the night of May 28, 1971, in Sydney, Nova Scotia, Sandford (Sandy) Seale, a 17-year old African Canadian, and Donald Marshall, Jr., a young 17 year old Mi'kmaq teenager, met by chance in Wentworth Park. While they were hanging out, the two teenagers met two other men, Roy Ebsary, a 59 year old former ship's cook and James (Jimmy) McNeil, a 25 year old unemployed labourer. The two men initiated a conversation and when they were finished, Marshall and Seale tried to beg them for money. This proved to be a fatal mistake. Little did they know, Ebsary was a very dangerous man who was previously convicted of a weapons charge involving a knife. In response to the seemingly simple request for money, a drunk Ebsary got very angry and said "this is for you Black Man" before stabbing Seale in the stomach. He then lunged at Marshall, cutting his arm. Seale was rushed to the nearby hospital, but died from his injuries a day later while Marshall's superficial wound healed.
1971 Investigation
The police officers who initially responded to the 911 call were Constables Leo Mroz, Howard Dean, Richard Walsh and Martin MacDonald. These men did not do a professional job. Once they got to the scene of the crime, they did not cordon off or search the area and failed to question any witnesses. Furthermore, once Seale was taken to hospital, all four of the officers left the scene, leaving it open to anyone. The police investigation was directed by the then Sergeant of Detectives, John MacIntyre, who theorized that Seale was stabbed by Marshall after getting into an argument. He did not have any supporting evidence. Disregarding Marshall's version of events completely, MacIntyre continued with the investigation with this theory in mind and found two young boys who then were used as eyewitnesses. These two boys were Maynard Chant, a 14 year old who was on probation for a minor criminal offence, and John Pratico, a 16 year old mentally ill boy who was known for inventing stories so he could be the centre of attention. Shortly after Seale succumbed to his injuries, the two boys were questioned by MacIntyre. Both told a story that was similar to Marshall's. Chant stated that he had seen nothing while Pratico stated he saw two adult men running away from the scene of the crime. A few days later, after taking suggestions from MacIntyre who had brought them both to the crime scene, the two boys contradicted what they said previously. Chant and Pratico now claimed that they saw the heated argument between Seale and Marshall and then saw Marshall stab Seale. This version of events was untrue. Donald Marshall, Jr., was then charged with the murder of Sandy Seale.
The Trial
Marshall's wrongful conviction not only resulted from the mishandled investigation, but also from the failures of both the Crown prosecutors and Marshall's own Defence counsel. The Crown attorney, Donald MacNeil, failed to interview the eyewitnesses who had given contradictory statements and also failed to inform the Defence counsel of the inconsistency of these statements. The Defence attorneys, C.M. Rosenblum and Simon Khattar, failed to properly represent their client. They had access to whatever financial resources they needed, but failed to interview any of the Crown witnesses, did not conduct their own independant investigation and did not ask for a full disclosure of the Crown's evidence against their client. Furthermore, the trial judge, Mr. Justice Louis Dubinsky, made several errors in law. This included a misinterpretation of Canada's Evidence Act. He failed to thoroughly examine John Pratico's statements against Marshall outside the court room. These costly mistakes resulted in a murder conviction and a life sentence for Donald Marshall, Jr.
Chances to be Freed
10 days after 17 year old Donald Marshall ,Jr. was convicted of murder and sentenced to life in prison, James McNeil, the other man who was with Marshall the night of the murder, came forward to Sydney City Police. He told them that Ebsary stabbed Seale. This statement occurred while Marshall's Defence Counsel was appealing the conviction. This information would have been extremely important for the appeal. The RCMP looked into McNeil's allegations, but the officer in charge admitted that he "botched" the investigation. Alan Marshall, the inspector of the investigation, failed to complete his job on many different occasions. During the investigation of these allegations, the inspector did not put any effort into getting the entire file on the Seale case from Sydney City Police. He did not interview Ebsary, Marshall, Pratico, or Chant, and only spoke McNeil when he taking polygraph tests. Inspector Marshall only relied on the results of those tests, the information that MacIntyre had told him and his own biased blind faith in the criminal justice system to determine if these allegations were true or false. This lack of professionalism led the inspector to file a "thoroughly reviewed" report on the case. He concluded that Ebsary did not stab Seale and concluded that Marshall was indeed guilty. Since his report said that McNeil's allegations were untrue, Marshall's appeal was denied. Ebsary's statement was never disclosed to Marshall's Defence Counsel or to the Halifax Crown counsel handling the case. If this information were given to any of the two counsels, there would undoubtably have been a new trial.
There was also a chance for Donald Marshall to be freed 3 years later. In 1974, Donna Ebsary, the daughter of Roy, confided to a friend that on the night of the murder she saw her father washing what appeared to be blood off of his knife. When they went to the Sydney City Police department they were told by one of the key officers of the Marshall case, Detective William Urquhart, that the case was closed. Ms. Ebsary and her friend left the police station and Urquhart made no move to pass the information to his superior officer.
There was also a chance for Donald Marshall to be freed 3 years later. In 1974, Donna Ebsary, the daughter of Roy, confided to a friend that on the night of the murder she saw her father washing what appeared to be blood off of his knife. When they went to the Sydney City Police department they were told by one of the key officers of the Marshall case, Detective William Urquhart, that the case was closed. Ms. Ebsary and her friend left the police station and Urquhart made no move to pass the information to his superior officer.
1982 Investigation and Appeal
After more than a decade and several attempts at appeal, Marshall, while still in prison, learned that Ebsary had confessed to stabbing Seale the night of the murder. Marshall's new Defence lawyer, Stephen Aronson, was informed about this information and conducted his own investigation into the matter. Nearly a year after Marshall told his lawyer, Aronson told the police to reopen the case. The RCMP assigned new officers to their investigation into the matter. They did what inspector Marshall did not do in 1971 and conducted a very painstaking and professional investigation. They interviewed Marshall, Ebsary, Pratico and Chant and also gathered physical evidence that matched Ebsary's knife to the one that had been used to stab Sandy Seale. Even though the investigation was very thoroughly conducted, the officers who were in charge led Marshall to say things that would affect him later on in his appeal process. When the officers visited the Dorchester Penitentiary they told Marshall that he had better tell them a story that they could believe or else they would never come back. With that threat in mind, Marshall had to go along with what Roy Ebsary had originally stated: that the stabbing occurred during an attempted robbery. After all information was gathered during the investigation, the officers presented their findings to Justice Minister Jean Chretien who then referred the case to the Nova Scotia Court of Appeal. A Reference Hearing under section 690b of the Criminal Code was then held. During this hearing, Justice Minister Chretien decided that Marshall not only had to prove his innocence, but the Court only had to answer the simple question of "Is he guilty or innocent of the charges laid against him?" instead of investigating why we has wrongfully convicted.
Finally, after years of sitting in prison for a crime he did not commit, Donald Marshall, Jr.' s conviction was overturned and he was acquitted. Years later, in 1990, he was fully exonerated. Even though there was a massive amount of evidence that the Canadian justice system had failed Marshall, the Court of Appeal blamed him for his wrongful conviction. The evidence used to support their claim was that Marshall had "admitted" to attempting robbery on the night of the murder and his "untruthfulness" was a significant contributing factor to his conviction. The Court did not deal with the lack of disclosure by the Crown during the original trial, or the perjured witnesses, and the trial judge's error for the cross-examination of Pratico.
Finally, after years of sitting in prison for a crime he did not commit, Donald Marshall, Jr.' s conviction was overturned and he was acquitted. Years later, in 1990, he was fully exonerated. Even though there was a massive amount of evidence that the Canadian justice system had failed Marshall, the Court of Appeal blamed him for his wrongful conviction. The evidence used to support their claim was that Marshall had "admitted" to attempting robbery on the night of the murder and his "untruthfulness" was a significant contributing factor to his conviction. The Court did not deal with the lack of disclosure by the Crown during the original trial, or the perjured witnesses, and the trial judge's error for the cross-examination of Pratico.
Compensation
The Court of Appeal went to great lengths to blame Donald Marshall, Jr. for his wrongful conviction. This negatively impacted the negotiations about compensation between Donald Marshall, Jr. and the Attorney General. The Deputy Attorney General Gordon Coles failed to see the unique and tragic circumstances and did not treat him with respect or fairness. In the end, Donald Marshall, Jr. was only awarded $700,000 for an ordeal that cost him nearly 2 decades of his life. In 1987 a royal commission of inquiry began to review the Donald Marshall, Jr. case. When it was completed in 1989, it revealed that all the failures in this case and recommended that Marshall be compensated with more money. With this recommendation, Donald Marshall, Jr was awarded a lifetime pension of $1.5 million.
Roy Ebsary
In 1985, after three trials, Roy Ebsary, then 72 years old, was found guilty of manslaughter for the murder of Sandy Seale. Initially he was sentenced to face 3 years in prison, but his sentenced was reduced to 1 year by the Court of Appeal in 1986.