A quarter of a century later: If the Crown is serious about preventing wrongful convictions in the future why don't they fix this one from the past? -- Sheila Steele
As formerly found in the
A key prosecution witness in a 1984 murder trial that condemned two New Brunswick men to life in prison has admitted that he lied at trial, claiming pressure by police.
John Loeman Jr., 32, was only 16 years old when prosecutors presented him as an eyewitness.
He told a Saint John court that, from the cover of brush, he watched in horror while a friend's father was bludgeoned to death with the butt of a shotgun. His account, and the testimony of a woman originally charged in the killing, put Bobby Mailman, then 36, and Wally Gillespie, then 40, in prison for life.
Janet Shatford, a 42-year-old welfare recipient, agreed to testify against the men after prosecutors dropped the murder charge against her on the eve of trial.
No physical evidence has ever linked the men to the Nov. 29, 1983 killing, and both had an alibi putting them elsewhere around the time George Gilman Leaman, a 56-year-old plumber, was bludgeoned, doused in gasoline and set on fire.
Sixteen years later, the men are still in prison and refuse to admit guilt to win early parole.
Our investigation, drawn from confidential Saint John police reports and federal Department of Justice files, taped interviews with Mr. Loeman, Ms. Shatford, senior detectives who worked with the case and witnesses known to police but never called to court, shows:
In a confidential Department of Justice investigation, a man interviewed by police in 1983 has told federal investigators that he was told to stay away from court during the trial because his testimony wasn't worthwhile. The potential witness was never identified to the defence.
The federal Department of Justice has launched its own probe after the accused made an application for review.
Under Section 690 of the of the Criminal Code of Canada, a law to remedy miscarriages of justice, the minister is empowered to send the case back to trial or appeal court.
A draft of the confidential departmental investigation has been complete since May 8, but federal Justice Minister Anne McLellan has yet to make a decision.
The department's criminal conviction review group has declined to comment on the case because it is still investigating.
To this day, the Saint John police department stands by its work and has always opposed parole for the convicted men.
Butch Cogswell, a polygraphist who witnessed John Loeman's 1984 statement, is now the police chief and says the right men are in prison.
Prosecutors Stephen Wood and James McAvity also stand by the convictions. They also say they disclosed all the evidence they had.
Contacted this week, defence lawyer Wilber MacLeod insisted he did not get full disclosure. "This is the first time I'm hearing about evidence that would have helped our case. There's no doubt in my mind that, if we would have had all the facts, there would have been a different outcome at trial," Mr. MacLeod said.
From the beginning, Bobby Mailman and Wally Gillespie have claimed their innocence.
Their first trial ended in a hung jury. At a second trial, they were convicted by the testimony of John Loeman Jr. and Ms. Shatford, even though their accounts contradicted one another and were riddled with inconsistencies.
Today, Mr. Loeman says he lied at both trials, but "the lie I am living can not go on."
Mr. Loeman says he had been a troubled boy looking for attention. Later, he says, he turned to drugs to escape the lies and found himself in and out of jail, mostly on fraud charges.
He says he tried to come clean years ago but deserted his conscience after police threatened to pursue him for giving perjured evidence at the trials.
In a 1998 letter to the Department of Justice's criminal conviction review group, Mr. Loeman inquires about the legal consequences of his perjury: "I need to know what will happen to me, because I am a victim, too."
Mr. Loeman has told Department of Justice investigators that Saint John police officers pressured him, saying he might go to jail for the murder if he didn't help convict the accused.
Mr. Loeman now says he did not actually witness the murder but thinks he might have arrived shortly after the killing. All he saw was the convicted men standing beside a station wagon, drinking beer with Ms. Shatford.
Mr. Loeman has also told federal investigators that two police officers, both since retired, persuaded him to embellish his story to help ensure convictions against the accused men.
"I never seen half the stuff they told me to say basically ... for the jury so they'd find them guilty, you know, just on what I seen alone wasn't enough to put him -- them -- them people away, and they knew it," he said.
"Well, I told them what happened, and then he told me what might have happened. 'Could it have been this way, John: You were up there standing there and seein' these guys hit George with a rifle butt and they go like that. Well, would you, mind sayin' that in court if you ever gotta go to court. Well, John, if you don't do exactly what we tell you to do, you could be a big problem, you know. We could charge (you) with this murder 'cause you were there,"' says Mr. Loeman.
His false testimony haunts him and he has written apologies to the condemned men, both of whom testified at trial. "My conscience has eaten away at me ... and I cannot accommodate the thought of keeping this to myself for the rest of my life," he says.
Incredibly, Mr. Loeman began recanting his testimony 15 years ago. On Oct. 24, 1985, he phoned defence lawyer Wilder MacLeod at home.
With his father present, Mr. Loeman told the truth for the first time.
"Everything I said at the trials was a lie," he said. "I can't carry the burden around."
Mr. MacLeod asked the boy why he came forward.
"I can't see two men doin' life in prison for somethin' they didn't do," was the reply. Mr. Loeman swore to his taped statement in an 11-page affidavit, dated Nov. 25, 1985.
Eight months later, Mr. Loeman wrote a letter to Saint John police, stating the sworn statement he had given Mr. MacLeod was not true.
On Feb. 10, 1998, the New Brunswick Court of Appeal, in a unanimous ruling, decided against hearing Mr. Loeman's 1985 sworn statement saying the witness was not credible.
Since 1979, there have been several court rulings and recommendations concerning the admissibility of fresh evidence on appeal.
One of the most recent interpretations is found in Recommendation 86(a) by the Commission on Proceedings involving Guy Paul Morin.
This standard does not require the court to find the recantation believable, rather the court must determine whether the new testimony could reasonably be expected to have changed the results of a trial.
Doubts about the recanted testimony should also prompt the court to question the veracity of the witness's original testimony.
By 1984, Bobby Mailman had been in and out of jail for theft and a series of assaults, earning him a reputation as one of the most feared criminals in Saint John's rough-and-ready North End.
During the 1970s, he was acquitted of attempted murder of a Saint John police officer and was tried three times -- two hung juries and an acquittal -- for the murder of a local hoodlum.
In June 1984, Mr. Mailman wrote to Stephen Woods, the Crown attorney.
"It is sincerely hoped that you will not object to my taking the liberty of writing you. And my reason for the taking of this liberty, sir, is that I now stand convicted and sentenced to life in prison for a murder which I did not commit."
Mr. Mailman is 52 now and a grandfather, playing out the remaining years of his life sentence at the Westmoreland Institution in Dorchester, N.B. Every day, he plays the trials over in his mind:
"The system owes me back my life. It's as simply as that. There was nothing that even so much as pointed to me and I believe that, if it hadn't been for my reputation, it would never have gone to court."
Says Wally Gillespie, now 56: "They put our lifestyle on trial, not the fact. We didn't do anything wrong."
Mr. Gillespie also grew up in a poor Saint John family, worked as a labourer at the dry dock by day and drank his wages at night.
As his drinking got worse, he started pushing bad cheques. By 1984, he had been charged with 61 crimes, mostly fraud and break and enter. He had served 21 provincial and federal jail terms.
Because the booze blurred their memories, one day ran into the next for the drinking buddies. The afternoon of Nov. 29, 1983, the day George Leaman, a down-and-out plumber, was killed, would be hard to recall.
He was beaten to death between a row of clapboard homes at the end of a dead-end street in a public housing project.
His body was dumped and set on fire at the foot of a small birch tree in a remote section of Rockwood Park, about two kilometres from where police say the murder happened.
His body was found on Nov. 30 by Robert Burke, who phone police and led them to the scene.
Police took 14 photographs and headed for the morgue, where they secured a few items from the body: three keys on a small ring, a brown paper bag containing 66 cents, and a single hair found on the right hand.
The hair sample was mentioned once during the preliminary hearing. Its existence was never raised at either trial.
A police search of Mr. Leaman's apartment revealed a telephone number of Roy Thomas, Janet Shatford's brother.
Mr. Thomas was staying at his sister's house at the time, and he used her address as his own. When police went looking for him, they found his sister.
Police reports obtained by the Citizen, some of them marked "This Information is Not To Be Given Out," document that she was questioned almost daily for weeks and routinely given money, out of pocket by a detective, to drink with Mr. Mailman and Mr. Gillespie in hopes of obtaining incriminating evidence.
Ms. Shatford's brother, Roy Thomas, had made a statement to police in 1983 but was never called to testify.
Mr. Thomas's ex-girlfriend, Norma Wilson, was not called to trial, either. She says she told police that a station wagon, jointly owned by her and Mr. Thomas, went missing on the day of the murder.
She said she loaned it to Janet Shatford to go shopping that day.
"I'm still waiting for my car back," Ms. Wilson told the Citizen.
She says she was told the car had been dumped in the Saint John River.
There is no record in police files that she had ever been interviewed.
A confidential Department of Justice brief states: "Ms. Wilson also recalled that she had answered a lot of questions down at the police station during the murder investigation. She was shown photographs of people and asked to identify them. She remembered that she was asked about her missing car as well."
Mr. Thomas told Department of Justice investigators that he had owned a brown Ford station wagon but that it had been stolen. He said he received $600 from the insurance company. Saint John police have no record of the car's being reported stolen or missing.
Fowler Insurance Ltd. records from that time have been destroyed.
According to the New Brunswick Department of Transportation, the car in question has been registered since.
During her meetings with detectives, Ms. Shatford, a single mother on welfare, continually denied any involvement in the murder.
She named several people to whom the victim owed money -- his biggest debt, $1,500, was to John Beale Sr., describing him as a Saint John bootlegger.
She also revealed an alleged motive, saying the accused men had gone to collect a debt owed to Mr. Beale. Mr. Beale, who has since died, was never called as a witness, let alone charged in the killing.
In fact, George Leaman owed money to Janet Shatford. She testified that he owed her $400 in long-distance phone bills.
Willard Carr and Lenny Tonge, the lead detectives, worked for seven weeks on the case and got nowhere.
Bobby Mailman and Wally Gillespie were their only suspects, and the detectives had turned up nothing on them.
In a taped statement to the Department of Justice, retired Det. Tonge says: "And, like I say, it was (sighs) ... I ... I don't believe there was any other suspects in my mind at that time. That'sall we had to go on. And that's who we were working on. Hoping that (Janet Shatford) would give us some information on it. But, like I say, well I guess she did in the long run. But not to us." (Laughs)
His partner, Det. Carr, also retired, now says that before the statements by Ms. Shatford, they had nothing.
"Prior to that, we didn't have anything concrete. We have suspicions, but we never had anything concrete that Gillespie and Mailman did it," Mr. Carr told the Department of Justice investigators.
The detective also said he never trusted Janet Shatford.
"It were more than a gut feeling I had that, you know, she wasn't, she wasn't up and up. Because she, you know, she came back and wanted money for this and wanted money for that. And (Det. Tonge) was giving it to her. And I said to him, 'Why are you giving this woman money?' 'Oh, she'll get the information for us.' And she never really did get information for us. She gave us bits and pieces. But never gave us what we're lookin' for."
Then, after seven weeks, other detectives took over the case. Overnight, they obtained the case-breaking statement from Mr. Loeman and declared the murder solved.
Mr. Loeman's statement is dated Jan. 18, 1984, and witness ed by then-Det. Butch Cogswell, who was not a lead detective on the case but a polygraphist who had administered lie-detector tests to a number of witnesses.
In the statement, John Loeman Jr. said he heard a scream coming from behind a house. He said he went into the woods and watched in horror as Janet Shatford, armed with an axe, and Bobby Mailman, wielding a shotgun, were "practically taking turns, but Janet was hitting him more. She was going right crazy."
The boy also placed Wally Gillespie at the scene, holding a butter pail "of something."
He also said that, while at Janet Shatford's home, he found a shotgun, axe and pail in a closet and that Mr. Leaman owed money to the bootlegger John Beale Sr., who was also a secret police informant.
Mr. Beale was never called to testify at trial. (By the time the case went to trial, Mr. Loeman changed butter pail of "something" to "gasoline." He said he was sure it was gasoline because of the glint from the sun. He said the late November killing happened just before dark. Weather records also show the area was overcast all day long. There was no indication of how the open pail of gasoline ended up being used to burn the body some two kilometres away.)
The day after police secured Mr. Loeman's statement, Janet Shatford was arrested on charges of murder. Mr. Mailman and Mr. Gillespie were arrested as accomplices.
For two months, Ms. Shatford told police she had nothing to do with the murder. Then, on the eve of her trial, she changed her story. She admitted to hacking at Mr. Leaman with an axe. in her confession, which was also witnessed by polygraphist Butch Cogswell, she portrayed herself as a reluctant killer, urged on by Bobby Mailman.
In exchange for her testimony against Mr. Mailman, whom she knew only by reputation, and Mr. Gillespie, a onetime boyfriend, the murder charge was dropped. She pleaded guilty to manslaughter and was sentenced to three years in prison.
In court, she testified that she watched Mr. Mailman bludgeon George Leaman to death with the butt of a shotgun while his slack-eyed drinking buddy, Wally Gillespie, stood a few feet away, a butter pail of gasoline in hand.
The murder, according to her story, happened in the backyard of a public housing unit in the city's north end.
She also revealed an alleged motive, saying the accused men owed to a bootlegger, Mr. Beale, who was not called to court.
Ms. Shatford testified that she helped kill Mr. Leaman, then dropped the axe, and went home to put supper on for her children.
Her account is steeped in contradiction, from the very reason she said placed her at the murder scene to the description of the weapons to where her children had supper that night.
In an interview two years ago, she said that she told police early in the investigation that she never witnessed the murder but that, over time, she was manipulated.
"I kept telling them I didn't do it. They had me in the lockup for three months. They were just telling me that I was there and that I did this and I did that.
"I didn't see nobody get killed, and I wasn't there. They told me that they would take my kids away and I'd never see them again if I didn't tell them what they wanted to hear," she recalled.
"They told me I was there. I couldn't prove I wasn't. I was just a welfare bum."
Later, in recounting her version of evens to federal investigators, she disputed what she had said in the earlier interview and returned to the story she told at the trials. But this time, there were significant discrepancies.
"It is also significant," a federal investigation brief says, "that Ms. Shatford described the shotgun used by Mr. Mailman on the day of the murder as being a sawed-off, double-barrelled shotgun. At no other time as either Janet Shatford or John Loeman Jr. ever described the firearm as sawed-off or double-barrelled."
It should also be noted that, for the first time, in 1998, she said the murder weapons were stored in a five-gallon pail that Bobby Mailman retrieved from the trunk of a car.
At both trials, defence lawyers waded through all the inconsistencies in the eyewitness testimony, including the fact that they had placed the murder at different spots in a backyard and recalled the dead body lying in different positions.
As well, Ms. Shatford had changed the number of times she swung the axe.
"They lied, said things that can't be, certain can't be in agreement -- they can't both be telling the truth," defence lawyer J. Anderson Ritchie said during the trial.
The difficulty in trying to fabricate a story is that you may be able to tailor a lie to fit another lie, but you can't tailor a lie to fit the truth, and that's where the inconsistencies come from, because beyond the concoction, they're on their own.
"And their stories don't jibe."
For months after the murder, the accused could not remember where they were on the afternoon of the killing. But at the trials, Wayne Costello testified on their behalf, saying that he had driven them to a car-parts dealer that afternoon.
Days into the trial, Marjorie Mills, a close friend of Wally Gillespie, came forward after finding a sales slip, dated the day of the murder, while sweeping under her refrigerator. She could now account for the accused, who had apparently spent the afternoon trying to fix the windshield wiper motor on Ms. Mills's car. The defence said the accused had been at the car-parts dealer at around 3:30 p.m.
Since the sales receipts did not show the time, the crown called customers who held receipts numbered both before and after the accused, in an attempt to discredit the timing of the alibi.
Wayne Lackie, a delivery man, testified that he purchased a gasket o9n the same afternoon. his sales receipt was Number 33439 -- police have since destroyed the alibi receipt, Number 33438 -- and Mr. Lackie testified that he had to have been there between 3 and 3:30 p.m. since he had to deliver the part to NB Tel before it closed at 4 p.m.
This would put the accused men at he car parts dealer earlier than they contended.
But Mr. Lackie never actually made the delivery to NB Tel. He says he had only guessed about the times by looking at someone else's logbook.
The first trial ended in a hung jury. The second trial began on May 7, 1984. It lasted five days, beginning on Monday morning and ending on Friday afternoon.
Again, defence lawyers hammered at the inconsistencies of the witnesses, claiming they were lying.
Prosecutors painted the accused and defence witnesses as low-life rounders who had criminal records, lived on welfare, and spent most days drinking at a bootlegger's.
The presiding judge, the late Mr. Justice J. Paul Barry, ended his charge to the jury around 12:30 p.m. on May 11, 1984. He said someone wasn't telling the truth. If they were lying, he said, the prosecution's case "falls to the ground."
"But if they are, they're sure telling whoppers. They're not any third-rate ones."
And he said he didn't feel like taking the time to recite Mr. Gillespie's lengthy criminal record.
The jury retired at 3:35 p.m. and took two hours and 25 minutes. The foreman pronounced the guilty verdict twice.
The judge said second-degree murder carried an automatic life sentence. He then looked at the men in the prisoners' dock and asked whether they had anything to say.
Bobby Mailman stood and calmly protested: "Just that I'm not guilty."
The judge then recited their lengthy criminal records -- "I don't know what the point is of rehabilitation" -- and sentenced them to life in prison at Dorchester Penitentiary, the country's oldest prison.
Today, Bobby Mailman and Wally Gillespie are still waiting for the truth. Still waiting to clear their names.
Says Mr. Mailman: "If you look at everything in our case, it's easy to prove that we are innocent. The only thing keeping us from clearing our names is someone who is not afraid to exercise their power and let the truth come out."
SAINT JOHN -- MYTHS, at least here in the Maritimes, need not agree with the facts. Or with each other.
For example, Maritimers are as prone as other Canadians to believe that crime in our streets is getting worse. Yet at the same time we hold dear the old chestnut that really bad stuff can't happen here. In the first case, never mind statistical reality. In the second, never mind the gritty reality we see from time to time on the front page.
Feeling both falsely threatened and falsely secure at the same time -- that requires deep belief. But folks here are born knowing that small is beautiful, and that what passes as a big city in these parts really isn't. So, sure we have some bad guys, but we're protected by our small-town values, small-town neighbours, small-town cops.
If that faith isn't also rattled by contradictory concerns, it should be. Just ask Clayton Johnson.
He's a 52-year-old man from Shelburne, N.S. -- a nice man, by all accounts but the one that was told in court seven years ago and that netted him a life sentence for murder. The problem is -- as has been well told in a number of news stories, none better than Kirk Makin's compelling accounts in this newspaper three weeks ago -- that he's probably innocent. Not only are there real questions about whether Mr. Johnson killed his wife, but it's doubtful that anyone did. It looks like she died in a fall.
Nor is Mr. Johnson the region's only jailbird held on iffy evidence. Donald Marshall, the young Micmac who spent 11 years locked up for a murder he didn't commit, is a Nova Scotian. And Robert Mailman and Walter Gillespie, now 14 years into questionable life sentences, are from New Brunswick.
Mailman, you say? Gillespie? It's no surprise if you don't know the names.
Yet the Mailman-Gillespie story was told in masterly detail six weeks ago by The Telegraph Journal (the newspaper from which I am currently on leave) here in Saint John. These men were convicted, on flimsy circumstantial evidence and the word of two shaky witnesses, of beating a man to death. Both the woman and the boy who testified against them have since admitted, most recently in interviews with the newspaper, that they caved in to police pressure to lie on the stand. Several impressive experts think the conviction stinks. And Gary Dimmock, the reporter who unearthed all this, has followed up with several more stories, one of them on a new witness who says he saw someone else do it.
It's compelling stuff -- a case crying to be re-opened. But it hasn't attracted much ink or air time, except in The Telegraph Journal. A full report in Ottawa's newspaper, a six-week-late interview on local CBC Radio, briefs in a couple of Maritime newspapers -- that, as far as I know, is it.
WHY so little interest? Well, unlike Mr. Johnson, these aren't nice men. By all accounts, they're thugs. One of them in particular was "known to the police" in 1983 when George Leeman, a hapless down-and-outer, was found bludgeoned to death and burned. Mr. Mailman, with a string of convictions for violence, was an instant suspect. Saint John policemen remembered all too well that he had beaten previous charges of killing two people, one of them a fellow cop.
Then, too, there's the way the story unfolded. At The Telegraph Journal, a newspaper legendary for giving writers time and space for exhaustive coverage of subjects it deems important, Mr. Dimmock stands out for his tenacity, skill and vigour. And length. His first story sprawled over 13 pages of the newspaper's weekend magazine. It didn't lend itself to a quick, convenient rewrite.
And the usual way stories move from one newsroom to another doesn't work with Telegraph Journal exclusives. It is an oddball among newsrooms: It doesn't belong to The Canadian Press, the news co-operative that serves as a medium of exchange for stories from different parts of Canada.
Another reporter could still seek to match or beat Mr. Dimmock's story, but, given the extent of the original coverage, that would be daunting. A new writer would be starting from scratch, tracking down and cultivating sources, chasing documentation, the whole nine yards. The odds of finding a new angle are low.
Newsrooms are notoriously loath to openly quote each other -- to give credit for exclusive work. So most ignore this story. It's a pity. These guys don't have Mr. Johnson's charm, but the principle at stake is as important to nasty people as to nice ones.
And the Mailman-Gillespie case serves as well as the Johnson one to illustrate the dark side of living somewhere small: that things can go just as horribly wrong in a place where everybody knows everybody else, and everybody else's business, as in a place where no one knows your name.