The Crown took six days to present its case, and it was devastating. The prosecutors had disclosed their evidence to us, as they are required to do. As far as I knew, we had it all. But nothing prepares you for the effect on the jury of the deadpan police witnesses, the forensic experts, the medical examiner. They had the hairs linking Burke to Tanya. They had the cross carved over the victim’s heart. Burke did a creditable job of looking unconcerned but I could read the signs of anger, impatience, and extreme stress as he sat listening to hour upon hour of evidence linking him to the murder of Tanya Cudmore. Much of the Crown’s evidence seemed unassailable, and a failed effort on my part to discredit it would have done us more harm than avoiding it. I did what I could. The investigators had never been able to locate the scene of the murder; they had found the body where it had been dumped. They had not found the murder weapon. They could not trace the raincoat in which the body had been found. Having done my homework on this first, I got the Crown witnesses to testify that a small spot of blood had been found in the back seat of Brennan’s car, and that it did not match Burke or Tanya Cudmore. I already knew it did not match Leeza Rae. I would deal with the
blood when our case opened. In the meantime I did my best on cross-examination to point out weaknesses in the Crown’s case. I suggested other ways the hairs could have found their way to Tanya Cudmore. Janeece had been with Father Burke on a number of occasions and Tanya had been at St. Bernadette’s. I made much of the fact that no evidence of foul play, and no traces of the victim, had been found during the meticulous searches the police conducted of Burke’s room and his possessions. It was impossible to tell how I was doing with the jury.
Brennan was anxious for our case to open. I did not know quite what he expected. I had character witnesses lined up, of course, and alibi witnesses to state that Father Burke was giving a lecture at St. Mary’s University the evening of the murder, then got into his car and drove to the rectory, where he arrived at nine-forty-five and did not, as far as anyone knew, go out again. Father O’Flaherty would give evidence that he, O’Flaherty, had been out late that night. He was a little vague about where, and I would have to resist the temptation to sneak in a question or a remark about that. When he got home to the rectory, at twelve-thirty or so, Brennan’s car was there. A member of Janeece’s family would testify that Father Burke had been thoughtful enough to drive Janeece home once in a while after choir practice. The witness believed Tanya was home on a couple of these occasions, but could not be sure. We could offer nothing stronger than that, and we had come up with no way to explain away the cross etched into the victim’s skin.
I said I did not know what Burke was expecting as the time approached for us to open our case. That is not quite accurate. True, I did not know what fond hopes he had built up about the testimony we would offer. But I knew one thing he expected and anticipated: his own appearance on the stand. If Burke was truly innocent — and, despite the evidence, every cell in my body wanted to believe that — then in an ideal world the best thing to do would be to put him up there and let him tell the jury: “I didn’t do it and here’s why it could not have been me.” But in the usual course of events, in the real world, a client who insists on taking the stand is often a defence lawyer’s worst nightmare. The accused as witness is an unmoving target who has given up his right to avoid cross-examination. The client,
having chosen to take this risk, can, and often does, end up blowing his entire case away with a few unguarded words. We have all seen experienced counsel construct a brilliant defence over a period of days or weeks, only to sit helplessly as the client takes it all with him as he goes down the toilet.
Naturally, I was not surprised when the Reverend Brennan X. Burke, who had been speaking publicly all his life, told me that he must, simply must, take the stand. I put a cover-my-ass memo in his file: “Strongly advised client not to testify. He insisted and I warned him that this was against my advice.” I told him things would go beautifully on my direct examination, as I took him through his exemplary life for a rapt jury of twelve. But whatever happened on cross-examination was out of my control.
“We have put your character and your credibility in issue. That makes every dark corner of your life an exhibit for the opposition. If the Crown turns up something I don’t know, and if you are immolated up there on the stand, then I cannot help you. Don’t keep anything from me. No surprises.” Of course he insisted there was nothing he couldn’t handle, and remained tight-lipped about his past, including the fire in New York when he had been marked with the sign of the cross.
“Answer only what is asked. Say nothing more. Keep your cool and be courteous at all times.”
Was the man listening?
II
The day finally came to open our case. Sue, Brennan, and I sat in the office we had been allotted adjacent to the courtroom. We went over the lineup of witnesses we would call. I would forgo my right to make an opening statement, and would save all arguments for my summation at the close of the trial.
“Any other ideas, Brennan? Anyone come to mind whose carcass I should be throwing up there on the sacrificial fire?” I was on edge. “Feel free to open up to us about anyone who hates you so much he would commit murder in your name.”
“Don’t you think I’d have mentioned it before now?” he snapped. “I piss people off, there’s no denying it, but I can’t imagine what I’ve done to deserve this. Though maybe you two will be running amok by the time this is over, carving my initials into whatever gets in your way.”
“Your initials?” Even I was surprised at the sharpness of my tone. But Burke just shook his head and waved me off with a dismissive hand. It was time to go back to the courtroom.
I stood and called my first witness. “Please state your full name for the court.”
“John Jamal Habib.”
“What is your profession, Mr. Habib?”
“I’m a barber here in Halifax.”
“Mr. Habib, do you recognize the man on trial today?”
“Yes, I do. It’s Father Burke.”
“And how do you know Father Burke?”
“He comes to me to get his hair cut.”
“Now Mr. Habib, I am going to show you a couple of items and then I’ll ask the court to enter them as exhibits. Do you recognize these things?”
“Yes, my appointment books for this year and last. They have my name on the cover.”
I had the books entered as exhibits, which would be examined by the Crown and the jurors. Then I handed them to the witness. “Please take the books and tell us whether there are any entries relating to Father Burke.”
“There are some dates written in here when he came for a haircut.
“Why don’t you start a year ago and read out the dates Father Burke came to you for a cut.”
“Okay. For 1989 I have October 12, 5:00 p.m., Fr. Burke, and December 7, noon hour. Now this year’s book. Here’s the first one, February 6, 12:30. And...” he flipped through the pages, “nothing again until — right — twelve noon on May 19.”
“What kind of shape was his hair in when you saw him May 19, can you recall?”
“Shaggy. Wavy. I asked him: ‘Father, are you here for a trim or you
want me to fix it in a ponytail?’ He laughed and said he was in the mood for a perm, and did I know where he could get a cheap red car and a cheap —” his eyes darted nervously to Burke “— uh, leisure suit.
This brought laughter from Burke and everyone else in the room.
“And what did you do with his hair that day?”
“Gave him a nice cut.”
“Thank you, Mr. Habib. My friend may have some questions for you.” But Schenk decided to leave it alone, and affected a complete lack of interest in the witness.
Burke leaned over to me and spoke out of the side of his mouth: “I hope all our witnesses are as loyal as our man John here. What I really said to him was ‘a cheap red car and a cheap dame.’”
“I figured as much,” I whispered back.
I next called a forensic scientist who specialized in hairs and fibres. She gave verbal and photographic evidence of the difference, visible under a microscope, between the appearance of recently cut hair, which has a sharp edge, and hair that has not seen the scissors for several months. The ends become more rounded over time. Again, Schenk did not get up to question her. Our case had pretty well peaked at that point. The barber and our hair expert were the only witnesses who could offer substantive evidence to help us on the forensics.
These witnesses had not been in our original lineup. We had been waiting for the judge and jury one morning, when Brennan remarked that he had had to dissuade his father from flying up from New York to sit in on the proceedings: “Probably wanted to intimidate the jury.” The image came back to me of Declan and Teresa Burke at the door of their house, Teresa reaching up to caress the face of her middle-aged son. And that is when it struck me. She had touched the hair curling over his collar and said: “Don’t they give you time off to get a haircut?” That was only days after Tanya Cudmore was murdered. His hair was long and needed cutting. The hairs found on Tanya’s body had been recently cut. They may have come from Burke, but not in May, 1990. I would make as much of that as I possibly could.
We did have a minor success with the tiny smear of dried blood that had been found in the rear seat of Burke’s car. Our investigative
efforts brought us to a grade six student at the choir school, who had been given a ride in the car with a couple of fellow students.
“So Mario, tell us what happened in the car that evening.”
“Father Burke was driving us home, and he took us for an ice cream first. Jerry Doherty was sitting beside me and he knew I had stepped on a big rusty nail a couple of days before when I was just wearing sneakers, and it had gone way up into my foot and made a big hole. Jerry wanted to see it, so I put my foot up on the seat and took my shoe and sock off. I pulled the bandage partly away to show him the hole and a bit of blood came oozing out. Jerry was like ‘whoa’ and I told him to be quiet so Burke wouldn’t know. I tried to wipe it off the seat.”
“And why didn’t you want Father Burke to know?”
“Because he probably would have stopped the car and tried to clean it off. And we might not have got to the ice cream place.”
“What made you think he’d be keen to stop the car and get it cleaned up?”
“Priests don’t like anything gross.” This brought chuckles from the assembly. “Like one time, he got a gob of something on his suit in class. We were writing a test in music composition. He walked by this girl’s desk and something white and gooey came off the desk and onto his priest suit. He just looked at it and made a face and walked right out of the classroom. During a test! And he came back a couple of minutes later with his suit wet where he’d washed off the goop. Like, everybody could have cheated on the test!”
“And did they cheat?” Not relevant, My Lady, but let’s hear it anyway.
“No, I don’t think so. I mean, it was composition. So, if you tried to copy off of somebody like Becky Fong, and you wrote down a complicated chord like B flat minor when the normal thing on your own paper would be the easiest chord, C major, Burke would — Father Burke would know, and he’d mark you down. Or he’d say something like: ‘Ah. Very sophisticated harmony. Why don’t you play it for us.’ And you’d go —” The boy mimicked the playing of something discordant on the piano, and everyone in the courtroom laughed.
“So, this told you what about Father Burke?”
“He’d be grossed out by blood in his car and he’d want it cleaned on the double.”
“Thank you, Mario. When was this car ride, do you remember?”
“Yeah, it was the first week of May because it was only two or three days after I hurt my foot, and that happened May the third.”
So we had evidence that, as finicky as he was, Father Burke had not had the interior of his car cleaned between the blood-letting in the first week of May and the search of his car by police after May 10 when Tanya Cudmore was killed. This, plus traces of other people’s hair, including two long, black curly hairs matching those of little Janeece, would put the kibosh on any suggestion that Burke had transported Tanya dead or alive in his car, and then cleaned the car afterwards.
We went through the motions over the next four court days with the rest of our witnesses, who testified in support of his alibi and his character. We also called evidence about the break-in at the archdiocese office and the rifling of the personnel files. Other witnesses testified about the vandal who had been seen in the area around the time of the murder. Schenk rarely bothered to cross-examine them.
III
Then it was showtime. On Tuesday September 18, my client rose and took the stand. There was a charming moment when the court clerk asked whether he wanted to swear an oath on the Bible, or make an affirmation. The jurors and spectators laughed along with Father Burke as he gave the clerk a wry look and took the Bible reverently in his hands. “Do you swear to tell the truth, the whole truth, and nothing but the truth? So help you God?” “I do.” He sat down and crossed one leg over the other, unconcerned. I took him through his life story as I wanted the jury to hear it. An immigrant to the U.S. from Ireland, son of loving parents, brother of five siblings; the young choirboy whose voice broke their hearts back in the old parish; his wayward years when he turned away from the church (but never from God) and pursued the kind of fun all young men pursue, “dating” and going to parties, with a bit of high-spirited
drinking and experimenting with other substances; his occasional performances at the church even then, when everyone gushed about how he sang as if he believed every word; his decision to give his life to God; his years at Fordham, the Jesuit University, where he excelled academically and played football (he allowed that he was no Vince Lombardi); his years in the seminary; his studies in Rome; his teaching in various universities and seminaries; his founding and re-founding of the St. Bernadette’s Choir School in Halifax. Father Burke this, Father Burke that. His strict vows, his stellar character, his credibility. I asked him straight out if he had killed Tanya Cudmore. He assured us with quiet dignity that he had not killed her, that he would not kill or hurt anyone. The jury loved him by the time I sat down, and may even have been ready to explain away the forensic evidence that seemed to tie him to the killing. Surely such a man would not hurt a soul. Would the jury please, please remember this when the Crown gets up and proceeds to eviscerate him in front of us all.