Murder at McDonald's (39 page)

In early testimony, the convenience-store clerk who dialled the police for Wood just after the shootings insisted that he called the RCMP, and not the ambulance company, as the defence suggested. It made a big difference. If the first call was made to the RCMP, then Wood arrived at the store at 1:20 a.m., the time the RCMP logged the call. But if the clerk dialled the ambulance first, then Wood could have been at the store as much as fifteen minutes earlier, a point that was crucial to Nicholson's and Mollon's case. And Mollon's witness was sure that Wood had arrived before 1:15; her boyfriend agreed, as did his mother and sister, who remembered exactly what time the couple returned from Kings to tell them about the young man who reported a shooting.

The fifth defence witness, Russell Deveaux, was a guard at Cape Breton County Correctional Centre who had befriended Derek Wood during his preliminary hearing in October 1992 and had listened to Wood talk about the case several times since. But when Deveaux was called to the stand, Ken Haley objected; he wanted to discuss the admissibility of the guard's evidence. The judge had a chance to hear Deveaux's testimony while the jurors were out of the room. According to the guard, Wood talked in hypothetical terms about being in the restaurant—what if I were there but didn't shoot anyone?—and indicated that he saw Arlene MacNeil shot and tried to help Donna Warren but was prevented from doing so. He felt he could have saved Donna, and Jimmy Fagan, but instead he ran away. The statements came in bits and pieces, not as one cohesive explanation, Deveaux said, adding that he encouraged Wood to talk when he appeared to be upset during the trial.

The guard also tried to persuade Wood to testify, which, he said, Wood told him his lawyers were also trying to do. Someday, Wood told Deveaux, he would make sure the victims' families heard the whole story. But he did not feel he could testify while they were in the courtroom. The guard also insisted that Wood told him not to testify about their conversations, but Ken Haley argued that Wood was using Deveaux to get a new version of his story before the jury without having to undergo cross-examination to do it. And despite defence arguments that the Crown had been allowed to call a guard to testify about incriminating remarks by Wood made while he was in custody, Justice Tiddman ruled that Deveaux's testimony would not be allowed. The jury would not hear what the guard had to say.

Art Mollon then turned in his chair and asked his client a question; he replied, “No.” Mollon never did reveal what the question was, but he had made it clear to reporters throughout the trial that Derek Wood could make his lawyer's job a lot easier by testifying on his own behalf. Whatever he had asked Mollon rested the case for the defence after Wood's reply. On the morning of May 27, the thirteenth day of the Wood trial, Art Mollon was ready to deliver his summation to the jury. “While this is one of the most brutal and senseless crimes in Nova Scotia, or even Canada, we must determine what the facts are,” he said. “I believe the evidence indicates he did not do it.

“Let's look at the times,” he continued. “They are critical.” And Mollon slowly outlined for the jury why the timing of key events after the crime made it impossible for his client to have been at McDonald's when the murders occurred. “We have documented times,” he said. “The RCMP received the call from City Wide Taxi at 1:09—that was the first call to police. At 1:20, Derek Wood phoned police.” Facing the jury, a portable podium beside him to hold his notes, Mollon spoke with compassion as he outlined the tough role jurors must play. The only evidence of the anxiety the lawyer was feeling was his voice; it was a little louder and a little higher than it had been for the rest of the trial. Then his expression turned to deep concern. That call, he said—Wood's call to police
had
to be the young man's second attempt to notify authorities about the crimes. And the first call
had
to be to the ambulance company. Wood had told police the morning of the crime that he thought his first call had been to an ambulance company, and the ambulance dispatcher had told the jury he received two back-to-back calls reporting the crime at about 1:08, one from the taxi dispatcher and the other from an unidentified male calling from Kings. Mollon asked the jurors, who were from the Sydney area and knew the distances involved, if his client could have been at McDonald's at 1:05—when the taxi arrived with Jimmy Fagan—and still have been able to run to Kings to make a phone call at 1:08. “Derek was at Kings when Jimmy Fagan was shot,” Mollon said. “He was a terrified young man who was involved in a plan to rob his employer. When the horror started, he ran for help.”

Derek Wood's second statement to Constable Brian Stoyek on May 7 was credible, Mollon argued; the young man was in the restaurant when the first shot was fired, but he ran back out the door and headed for Kings. As for the confession, Mollon told the jury his client wanted to protect Mike Campbell, and felt he was to blame because he helped plan the robbery and let MacNeil and Muise into the restaurant. Mollon emphasized that Wood did not take any money: “Who was in control of the money? Freeman. Wood did not want any.”

As he took his seat after almost ninety minutes, Art Mollon realized that his job was done—all he could do now was wait for the jurors to do theirs. While his arguments were strong, the jury still had to hear from Ken Haley, who had spent a long night preparing his address to the jury, working at his kitchen table and pausing every once in a while to think about his father. How proud he had been, only weeks before, when his son was appointed regional Crown prosecutor for Cape Breton, and how happy he would be if Haley won this very important case. The prosecutor began simply by asking the jury to consider all the evidence. Derek Wood acknowledged his true involvement in the crime, he said, reminding the court of the way Wood chose to confess. Haley asked the jury to consider the videotaped interrogation when they assessed Wood's character: was this the portrait of a terrified teenager or a cold-blood killer? Rather than admit to everything, in an attempt to satisfy police and help Mike Campbell, Wood picked up the list of charges and specified the ones for which he claimed guilt. As for the timing of Wood's calls from Kings, Haley wondered just how accurately people keep track of time; wasn't it common for people to differ by ten or fifteen minutes? Slowly building his argument, Haley questioned Wood's actions after the crime. Why didn't he tell police he was walking to Freeman MacNeil's house? Because he knew MacNeil was involved? And if he was so terrified that he took off after hearing shots, why didn't he tell police about the maniacs who went crazy with the gun? As Haley continued to summarize the evidence, the victims' relatives began to relax. Mollon's summation had them worried, but now they could feel the tide changing in their favour; “their lawyer,” as they later referred to Haley, was doing a good job.

In front of the jury box, Haley paced slowly, emphasizing that what happened at McDonald's was no accident. “They talked about shooting the employees if they had trouble inside.… They planned the robbery, and when things went bad they fell back on what they had talked about. Our ally is force, our ally silence. No one can tell. Eliminate witnesses.” Then, for the final time, he took the jury through the crime scene, describing in detail what had happened, what Derek Wood had done. Once again, Neil Burroughs's sisters wept to hear the heartbreaking account of their brother's violent death.

In an appeal filed a week later, the defence accused Haley of being inflammatory in his ninety-minute summation—a complaint that caused a good deal of concern on the prosecuting team. Haley became quite upset about the accusation. He was certain that he had been fair and had in no way inflamed the jurors. Williston and Chishom advised him to ignore the complaint; after all, there were several reasons cited for the appeal, and they didn't agree with any of them. Finally, Haley's colleagues began to worry about his reaction; they didn't want him to lose his focus, not with two trials still ahead of them. They decided to try humour, and bestowed on him the nickname “Flames,” which stuck for the duration of the McDonald's trials. To his credit, “Flames” did learn to laugh at the whole situation, and he set aside his concerns about the appeal until a more appropriate time.

With Haley's arguments over, the jurors were sent home for the long weekend. On the morning of June 1, the fourteenth day of the trial, Justice Tiddman undertook his charge to the jury, an explanation of the points of law related to the charges and evidence of the case. Tiddman's intention was to clearly and simply outline the relevant Criminal Code provisions. Making legal language understandable is a challenging task, but Tiddman was up to the challenge, and was well aware of the hazards that faced him. Many appeals have been won by defence lawyers who argued that a judge did not properly charge the jury.

Tiddman began with a caution to the jury. “It is hard to imagine crimes more horrendous. These killings understandably upset the community,” he said. “Separate yourself from those emotions, and make your decision on the evidence. It is not for you to determine the seriousness of the crime, but you must decide if this accused committed all or any of the offences.” He also advised jurors against making a decision too early, and urged them to approach their deliberation with open minds—and, especially, open ears.

With this warning out of the way, the judge explained the differences between first-degree murder and the related offences of second-degree murder and manslaughter. For a murder to be first-degree, he said, it must be planned and deliberate, or it must be committed by someone found guilty of unlawful confinement. Tiddman outlined what the law has to say about forcible confinement as the offence tied in with the case in relation to Donna Warren. A judge's charge is generally a long, drawn-out, technical affair, and observers expected this one to take most of the day. But Tiddman clearly wanted to avoid confusing the jury: in less than two-and-a-half hours, the charge was complete.

Then began the long wait, as relatives of the shooting victims and members of the media gathered in the hallway outside the courtroom. As the jurors pondered, the guessing game in the hall centred on how long they would be out, and what a lengthy deliberation might mean, Joey and John Burroughs came over to talk with me about their worries and their feelings. “If this goes long, those people are crazy,” Joey said, his anxiety building. “The goddamned bastard confessed, didn't he?” After just over three hours, there was a brief wave of excitement in the hall, as deputies summoned the lawyers. Was it a verdict? No, just a request. The judge, the lawyers, the accused, the relatives, and the reporters all crowded back into the courtroom to learn that the jurors wanted a transcript of the testimony of Corporal Brian Stoyek, the first officer to come in contact with Derek Wood. The judge told them that the transcript wasn't ready yet, but he could replay the audio tape of the officer's testimony. Of course, that would mean the jury would be spending the night in a hotel, Justice Tiddman said. The victims' relatives had been praying for a short deliberation, but now they would have to spend a night waiting and wondering.

The next day, it was back to the wait in the hallway; everyone was talking about the significance of Brian Stoyek's testimony and why the jury wanted to hear it again. Crown lawyers had pointed out that in his second statement to Stoyek on May 7, Wood claimed to have run through the restaurant and out the door after seeing two men, one wearing a mask, and said he saw a man lying in the doorway where Jimmy Fagan had fallen. He could not have known this if, as the defence insisted, he had not been at the restaurant when the last shot was fired. In his final argument, Art Mollon had challenged that information by saying that during their interrogation on May 7, Stoyek and Cleary “refused to admit” they told Wood where the body was. Mollon hoped the jurors would cling to the phrase “refused to admit” and its implications, instead of concluding that the officers had simply chosen not to give Wood any information on that first morning.

The phrase, as it happened, came from a report I had written a few years before. Before his closing arguments, Mollon took me aside and said he would be quoting me to the jury. But he would not say any more, and I just couldn't figure out what I had said or done in the weeks of the trial that could be used in arguments for either side. However, when Mollon got to the part of his argument dealing with the interrogation, and said that Stoyek and Cleary “refused to admit” giving Wood the answers—his voice rising with indignation on the word
refuse
—I started to smile. The phrase had come up when I filed a report saying that a man accused of murder had “refused to admit” his guilt when interrogated by police. The man's lawyers just happened to be Mollon and Nicholson, and they promptly let me know how outraged they were. Their client had not “refused to admit” he was guilty, they said; rather, he maintained that he was innocent! So that was the phrase they were now using to defend Derek Wood, in the hopes that jurors would believe police “refused to admit” something they in fact denied. It was a key point. If the jury was convinced that Wood knew where James Fagan had fallen when he talked to police on May 7, then they could draw only two conclusions: either the RCMP told him, or he was at the restaurant after Jimmy Fagan was shot—in which case the arguments about time were no longer an issue.

As we all waited, Derek Wood spent the day pacing, sitting, or lying down in the tiny holding cell in the courthouse basement. I made several trips to the sheriff's office in the basement to watch Wood on the video monitor, and was surprised to see that at one point, the young man whose freedom was on the line appeared to be sleeping. I asked if I could go into the holding area to talk with Wood, but Sheriff Magee would not allow it. Nor could I find Derek Wood's father; the defence lawyers had made arrangements for a room to be set aside for him to await the verdicts.