Murder at McDonald's (36 page)

Supreme Court Justice Gordon Tiddman began the jury-selection process by asking if anyone was unable to sit on a jury for reasons unrelated to the specifics of the Wood case. Exemptions were granted to people collecting unemployment insurance benefits, because jurors are not available for work and thus do not qualify for UI. Also exempted were people with medical problems, and those whose employers—though allowing them to take time off work—would not pay their salaries while they performed their civic duty. Because of the number of people requesting exemptions, the process was slow, so those of us covering the start of the trial went outside to question some of the jurors who had been excused. Surprisingly, many said they believed they could have judged the case fairly, and that their reasons for leaving were financial or medical. Others said they were very happy to get away from the case.

With the general exemptions out of the way, Justice Tiddman asked Derek Wood to stand and hear the charges against him. At 12:02 p.m., the remaining members of the jury pool listened as the judge read each count and the small blond man at the front answered. To the attempted murder of Joan Arlene MacNeil, to the unlawful confinement of Donna Alecia Warren, to the first-degree murder of Donna Alecia Warren, to the first-degree murder of Neil Francis Burroughs, and to the armed robbery, Derek Wood responded, “Not guilty.”

Ken Haley then read a list of those who could be called to testify during the trial—151 possible witnesses, among them Darren Richard Muise and Freeman Daniel MacNeil. The prosecutors did not expect Muise and MacNeil to testify, but were keeping them on the witness list nonetheless; in fact, the Crown anticipated calling only 65 people to the stand—less than half of those on the list. Once again, the pool of potential jurors was drained—some had a relationship with one of the witnesses; others knew the accused, or one of the lawyers; still others worked for McDonald's or were relatives of McDonald's employees. By the end of the day, Justice Tiddman had excused 116 people, leaving a group of 63 for the final jury selection.

On May 4, back at the county courthouse, the defence team representing Derek Wood began the process of challenging for cause, a series of questions designed to determine if jurors could be prejudiced against a defendant. Art Mollon, who led the questioning for the defence, wanted to know whether the prospective jurors had closely followed media coverage of the McDonald's murders, whether they had a preconceived notion of the guilt or innocence of those charged, and whether they felt they could decide the case on the evidence and not on what they had heard in the community. Two other members of the jury pool then gave their opinion on the impartiality of the candidate, who was then considered one last time by Mollon and Crown prosecutor Ken Haley. Haley and Mollon were surprised that it was only 3:13 p.m. when they came to an agreement on twelve people acceptable to both sides in the case. The ten men and two women were sworn in by Justice Tiddman; the Wood trial was ready to begin.

Perhaps the most important part of the trial took place in the six days between the jury selection and the calling of the first witness. This was the time devoted to the
voir dire
hearing into Derek Wood's confession, which was key to the Crown's case.
Voir dire
refers to a trial within a trial, in which witnesses are called and evidence presented. But unlike a regular trial, there is no jury, and the central issue—rather than innocence or guilt—is the legality of the evidence in question. Can it be presented to a jury? Justice Tiddman heard testimony from the police officers who had contact with Derek Wood on May 7 and May 16, 1992; watched the video-taped interview with Wood, conducted by Constables Wilson and Mahoney; and listened to the lawyers' arguments. Mollon stated his case clearly: anything and everything that happened after Derek Wood asked for his lawyer could not be allowed as evidence. To allow the confession to be admitted, said Mollon, would be a violation of his client's rights. Ken Haley countered that Wood, who had been in custody little more than a week earlier, was well aware that he need only tell police he wanted his lawyer, and they would assist him. Besides, Haley said, Wood had asked for and been given legal counsel earlier in the interview in question. Neither lawyer got an immediate answer. Justice Tiddman reserved decision on the matter until the morning of May 10.

From left, Karl Mahoney, Phil Scharf, and Jim Wilson chat after testifying during the admissibility hearing at the start of Derek Wood's trial. [Print from ATV video tape.]

In the middle of all the uncertainty came the first anniversary of the McDonald's murders. The Sydney River restaurant was closed for the day and barricades, festooned with roses in honour of the victims, were placed at the entrance of the driveway. Another ecumenical service was held near the restaurant, at Our Lady of Fatima church, and once again a large crowd listened as Father Stanley MacDonald repeated his earlier message—that the community was in desperate need of healing. For the families of the four shooting victims, May 7, 1993, was spent in painful reflection on the tragedy that had shattered their lives a year before. Prayers were said over the graves of Neil Burroughs, James Fagan, and Donna Warren, and an unspoken question lingered in the cool spring air: Why did this happen? Perhaps the trials would provide an answer.

Just after eight in the morning on Monday, May 10, Derek Wood arrived at the courthouse for the first day of his trial. He was left to cool his heels in the basement holding cell for some time—nothing would be happening in the courtroom until nine-thirty—but Cape Breton County Sheriff Wayne Magee had decided to bring the accused to court early, before the anticipated crowds began to gather outside. He needn't have worried. There were enough people to fill the courtroom, but not many had to be turned away. Still, security was intense: access to the second floor of the courthouse was restricted, and no-one could enter the courtroom without being searched. For the relatives of the four victims, it was an unnerving experience to stand with their arms extended as guards ran wandlike metal detectors along their sides and between their legs. Al Fagan did not like being treated like a suspect when he had spent a long, productive life as a law-abiding citizen, and he especially disliked being subjected to such treatment in front of the TV cameras, which were recording the searches. A throng of journalists huddled near the courtroom entrance, and every few moments one of them would glance towards the doorway at the end of the hall, where Derek Wood and the security entourage would emerge when it was time for him to take his seat. The twelve jurors hustled quickly past the families and the reporters as they headed for the jury room, next to that same doorway. Cameramen were told they could only record the procession as Wood walked down the hall and entered the courtroom: they were not to get between him and the door, and they were not to follow him inside. By the third day of the trial, those restrictions would be lifted.

As I waited for Wood to arrive, I tried to build on my earlier contact with the victims' families. I had managed to persuade two of Neil Burroughs' brothers to talk to me during the preliminary hearings, several months earlier; maybe the others would be more forthcoming now. But it wasn't going to happen, at least not yet. They still rejected the idea of speaking to a reporter; heeding the advice of the Crown and the RCMP, they wanted to avoid saying anything that could cause problems in the courtroom. As I stood drinking a coffee across the hall from Olive Warren, Donna's mother, an elderly woman at her side began pointing at me, obviously distressed. The woman, who turned out to be Olive's mother, explained later that she had mistaken me for Derek Wood—she had seen him on the news and somehow confused the two of us—and couldn't understand why I was being allowed to wander in the hall so close to her. Donna Warren's grandmother was very nervous that morning, but she wasn't the only one.

For those of us covering the trial, the biggest concern was how much would we be able to report. The Crown had applied for a publication ban, arguing that potential jurors for the Muise and MacNeil trials must not be unduly influenced. The CBC and the
Cape Breton Post
had hired lawyers to argue against the ban, and Justice Tiddman would make a decision before the trial started. For me, this was an issue that went way beyond getting a good story. Prosecutors and police officers have sometimes argued that the media have no legal status before the courts, and that arguments about access unnecessarily drag out a trial. In fact, open access to the courts is one of the tenets of our justice system, and since most Canadians do not have time to attend trials, their only access is through media reports. I have even covered trials during which Supreme Court justices have taken time to thank journalists for helping keep the process open. Fictional accounts of reporters fighting for the public's “right to know” have given the issue an undertone of cliché that even embarrasses reporters, but the fact remains that a closed and secretive court process is a threat to every citizen.

The prosecutors involved in the McDonald's murder cases argued that the information would still become public; it was simply a matter of waiting until the final trial ended. But media lawyers argued that that wasn't the point. Banning publication or broadcast of testimony is just the first step, they said—what about extending the ban to the identity of someone who is acquitted? That would not be in the public interest: people need to know that everyone is treated equally before the courts, and judges must be subject to close public scrutiny, so they cannot succumb to the temptation to abuse their power by showing favouritism to friends.

Shortly after nine-thirty, the families of the victims settled into their reserved seats at the centre of the courtroom, with reporters on their left and members of the public occupying the remaining seats. Front row centre was reserved for security personnel, who sat just behind a metal bar that divided the room in half and kept Derek Wood sequestered in an area off limits to everyone except court officers and lawyers. The effect was of a room split down the middle by a picket fence, topped by a dull grey railing in which two openings had been cut—these were to allow lawyers and witnesses to come and go.

Just beyond the railing were the chairs in which Wood and a contingent of security officers would sit during the trial. In front of these chairs, dominating the centre of the room, were two long tables, placed end-to-end: on one side, Ken Haley, Brian Williston, and Marc Chisholm sat huddled over their file in a flurry of last-minute preparation; at the other end, Art Mollon and Allan Nicholson also pored over their notes. Beyond the lawyers' tables sat the clerk who would swear in witnesses, roll-call the jurors, and number and label exhibits as they were introduced. And beyond the clerk's table stood a raised oak bench, which matched the panelling that covered the courtroom walls. The judge's chair was at the centre of that bench, and on either side were the doors to two private rooms—the judge's chambers and the jury room. Off to one side of the bench hung the only adornment on those dark wooden walls—a portrait of the Queen and a Canadian flag.

Before calling the jury, Justice Tiddman dealt with the preliminary issues. Visible relief illuminated the faces of the three Crown attorneys as Tiddman ruled that he would allow Derek Wood's confession. Art Mollon and his colleague Allan Nicholson were impassive; they had already decided to appeal if the ruling went against them. Next, the issue of access—and now it was our turn to be relieved. We could report on all testimony except evidence that would implicate Darren Muise and Freeman MacNeil in the crimes for which they would later stand trial.

Finally, it was time for the trial to begin, and Ken Haley stood to make his opening remarks to the jury. His tall, heavy-set body and thick, dark hair made him an imposing figure, and his comments were equally striking. Haley promised to prove that Derek Wood planned and carried out the robbery at the Sydney River McDonald's, and that during the robbery he shot Arlene MacNeil, Neil Burroughs, and Donna Warren. That simple statement began the longest three weeks of Haley's life.

As his first witness, Haley called Constable Henry Jantzen, who had been appointed exhibit man and who would present the court with all the physical evidence gathered during the investigation. When Jantzen was about to play the video tape recorded at the crime scene, Justice Tiddman issued a warning to the victims' relatives: it was very important for the jury to see the tape all the way through, he said, so anyone who did not feel strong enough to see the disturbing, graphic images should leave the courtroom until the screening was over. Several women and a few men rose from the reserved seats and headed for the hallway; those who stayed behind regretted the decision within minutes. The lights in the courtroom were dimmed, and Henry Jantzen turned on a video projector that would display the taped images on a large screen in front of the jury box. TV monitors had also been set up so that Wood, the lawyers, and the judge could watch.