Chapter 11

(Monty)

My client, Beau Delaney, was the architect, or the beneficiary at least, of a major grandstanding event three days before his trial got underway. Jack Hartt, the actor who played Delaney in the movie about the Gary’s General Store case, was well known at the time of the film, but he had enjoyed even greater success in the years since, including two Oscar nominations. He made his home in Los Angeles, and had married his long-time love, Angie Bonner, lead vocalist and guitarist with the all-woman rock band Pink Curlers. The band had been at the top of the charts in the late seventies and early eighties; they still cut the occasional record and played the odd stadium gig. They had a huge following.

Now the Jack and Angie show was coming to Halifax. All in aid of Beau Delaney. Angie had offered to perform on the Commons, rain or shine. This was not the Beau Delaney Legal Defence Fund, but a charity concert to raise money for disadvantaged children. There was no charge for admission, but people were invited to make donations to the charity. When my blues band, Functus, was asked to be the opening act for the concert, I did not jump to the conclusion that our fame had spread to southern California. Or even to the south shore of Nova Scotia. Beau had a hand in that, obviously. But we were delighted to do the gig and add “opened for Angie Bonner” to our résumés, which would probably be done up on beer coasters if anything.

The night was foggy but mild. There were misty halos around the lights, which added a bit of atmosphere — local colour — to the set-up. The stage was at the northeast corner of the Commons, with a great red sandstone castle looming behind it, that is, the Halifax Armouries, which Queen Victoria ordered built at the end of the nineteenth century. There was a huge crowd on hand for the show, and a large media presence. Big, tough-looking guys circulated through the crowd passing the hat for the children’s charity. I didn’t know who the men were, but I knew nobody would even think of stealing the collection plate. The crowd gave my band a fine hometown welcome when we walked on stage. We did a few blues favourites and closed with Normie’s most cherished song, “Stray Cat Strut.” I brought her up with me to contribute the “meows.” She earned a great round of applause, and loved every minute of it.

The applause went up a few hundred decibels when Angie Bonner and Jack Hartt walked onto the stage, in a blaze of lights from the television cameras and news photographers. Hartt had a mane of light brown hair, not all that different from Delaney’s, minus the grey; he was tall and handsome in an athletic way. Angie was smaller than I expected, maybe a couple of inches over five feet and very slim; she had high cheekbones and long blond hair that streamed down over her shoulders. Some in the audience sang the Rolling Stones song “Angie” to welcome her. Others waved large Jack of Hearts cards to honour him. Angie was gracious enough to say a few kind words about Functus. Then Jack took centre stage.

“Hello, Halifax!”

That met with cheers. When they died down, Jack said: “I’d like to say a few words about why Angie and I are in Halifax. I’ll start with two words: Beau Delaney. As some of you may know, I played the part of Beau Delaney in a movie shot here a few years back. I played the role, but Beau was the real-life hero, who had taken on a very unpopular case in a town near here and made himself very unpopular as a result. In fact he received death threats for acting in the case. But that didn’t stop him from going back to that town, investigating a murder on his own time, finding the real killer, and freeing an innocent man who was wrongfully convicted of the killing. And if you want to know more, rent the video! Help pay for my trip!” Everybody laughed at that. “It’s called Righteous Defender.

“So that was inspiring enough, you’d think. Right?” Cheers from the crowd. “But there’s even more to Beau Delaney than that. When I met him, he did not have ten kids the way he has today. But he had a houseful even then. He had a few kids who were permanent parts of the family, of course, but he and his wife Peggy also took in foster children from time to time, on a temporary basis. So the Delaney house was always bursting at the seams with children. And with love!

“I was a Hollywood asshole. I still am, of course.” The audience howled with laughter. “But in one way I’ve tried to be a better person than I was then. I was a single guy, but Angie and I were an item; we’d been together on and off for years. I was so impressed with Beau and Peggy and the life they had made for their children that when I got home, I said to Angie: ‘Let’s tone down the partying, let’s grow up, get married, and start a family. And let’s not wait nine months. There are children out there who need love — no child should have to live without love; isn’t that the greatest tragedy in the world? — there are children out there who need a home. Angie, let’s do something about it.’ So we got married that week, and three months later we had two foster children living with us.” He was interrupted by heartfelt cheers. “They’re still with us, and there are five more now.” Cheers again. “Wouldn’t trade them for all the Oscars in the world! Beau, from the bottom of my heart, thank you for showing me what life is all about!” He tried to continue but his words were drowned out by the applause.

When it finally subsided, he said: “Angie, over to you.”

The crowd roared and whistled, but she signalled for quiet, and the people obeyed. “If Jack was a Hollywood asshole, I was your stereotypical rock singer fuelling my performances with coke and booze. I gave it all up the night before our first appointment with social services to meet our first two foster children. Of course, we dropped the word ‘foster’ a long time ago. Anyway, I didn’t turn into a perfect human being overnight either. I’m not even close. But I sure as hell am trying my very best because Jack and our children mean the whole world to me. And it all started when Jack got home and talked my ear off about Beau Delaney and his wife Peggy and all the adorable children who made up their family. And I always wanted to meet them. Well, that could be arranged. Jack brought them down to L.A., where we all partied — in a good way, a wholesome family-type way, before you start to think anything else — and I got to know Peggy and Beau. Thank God for that, because Peggy’s not with us now. I am so blessed to have known her. Anyway, for those of you who don’t know the family, I can tell you they’re everything they’re cracked up to be. So let me join Jack in thanking you, Beau, for being the guiding light in our family life.” Roars of approval again. She turned around and picked up her guitar, checked her sound, and said: “Beau, this one’s for you!”

She launched into a solo version of the Pink Curlers song “Love of My Life,” and rocked for two hours solid after that.

The radio, newspaper, and television coverage the next day was everything a public relations person could hope for. I hadn’t planned it. Beau swore he hadn’t planned it either, that the idea originated with Angie and Jack. But whatever the case, I pleaded in my mind, Potential jurors, take note! Beau stopped by my office to give me a copy of the Righteous Defender video, and I watched it the night before the trial. My client’s heroics were an inspiration. If only I could play it for the jury and say: “My Lord, I rest my case.”

Delaney sat beside me at the defence table as the trial got underway on Thursday, May 7, 1992. He whispered: “All right, counsellor, let’s get this show on the road. Or, get this showboat in the water.” But he knew enough not to dress like a showboat for the trial. He wore a sedate navy suit with white shirt and soft blue tie. I nodded approvingly at his ensemble.

“Hmmph! I have to say I feel naked here without my robe on, Monty.”

“I suppose you do, after all these years.”

The prosecutors and I were decked out in our barristers’ black gowns and white neck tabs, but Beau was just a civilian for this event.

At the table in front of us were the Crown attorneys, Gail Kirk and Bill MacEwen, facing Justice Kenneth Palmer’s bench. The jury box was to our left, farther up the courtroom. The seven-woman, five-man jury had been selected, after much whispering, nudging, and note-passing on the part of Delaney, and it was time for the Crown’s line-up of witnesses.

The charge was second-degree murder. There was no way this could be painted as a planned and deliberate killing. The Crown’s theory, as presented by the police and the Crown’s expert witness, a pathologist, was that Beau killed Peggy by hitting her on the back of the head with a heavy rock, fracturing her skull. The rocks were at the foot of the stairs because the Delaney children had intended to use them to build a fort. After the deadly assault, they said, Beau carried his wife down the stairs, laid her on her back, and arranged the rock under her head so the wound would match the murder weapon. Their backup theory was that Beau pushed her down the stairs, but this was so much like a fall — an accident — that they stressed the clubbing theory at the trial. The Crown dismissed out of hand any idea that Peggy tripped and fell down the stairs. If she had tripped, she would have fallen face first. The Crown, whose formal role is to pursue the truth, could not avoid calling the medical examiner, who candidly admitted in his report and on the stand that his findings were inconclusive: it could have been an accident or a homicide. But the lead Crown attorney, Gail Kirk, got him out of the way quickly, before welcoming her second opinion, Dr. Heath MacLeod, to the stand and spending nearly two hours eliciting his evidence. I got the pathologist to admit, on cross-examination, that it was possible the skull fracture was caused by Mrs. Delaney falling on the rock.

The autopsy showed a bruise on Peggy’s left arm, with one mark on the front-facing part of the arm and multiple marks on the back. In other words, this was a mark left by a hand gripping the victim’s arm. Dr. MacLeod acknowledged that this appeared to be the result of someone being face to face with Peggy and holding her arm. My point was that this was inconsistent with an attack from behind.

I got the police officers who examined the scene to acknowledge that there was no blood at or near the top of the stairs where the fatal blow was said to have been struck. And no blood on Delaney himself. Or, as the officer said: “Not on the clothing he was wearing when we saw him.”

Sergeant Chuck Morash testified about being called to the scene and finding Peggy Delaney’s body lying undisturbed on the floor. There were no signs of forced entry into the house. Morash asked Delaney if he had moved her. No. Touched her. No. The sergeant went on to describe how little Delaney said at the scene, apart from stating that he had not been home when his wife died and had arrived from Annapolis Royal around twelve thirty in the morning. Delaney had not asked any questions, rhetorical or otherwise, about what might have happened to his wife. The detective with the degree in psychology left the impression that Beau had been cool and calculating at the death scene. I had nothing to gain, and much to lose, by prolonging his testimony, so I did not cross-examine him.

The Crown’s last witness was Harold Gorman, the elderly neighbour who told police he had seen Beau outside his house the night Peggy died. Mr. Gorman was dressed in grey flannel pants, white shirt and tie, and a blue cardigan sweater. He shivered as if from the cold when he took his place in the witness box, was sworn in, and identified himself.

“Mr. Gorman, please tell the court what you saw on the night of January fifteenth.”

“Certainly. I looked out the window and saw Mr. Delaney in his driveway.”

“And what was he doing?”

“Just having a look around the place, as far as I could tell.”

“I see. What time would this have been?”

“I’m not sure. It was pretty late.”

“Can you give us an estimate?”

“No, I just can’t remember.”

“Was it dark?”

“Oh yes, it would have been after midnight. At least I think so, but I’m not sure.”

This was good for us, bad for Gail Kirk. Gail exchanged a glance with her fellow attorney.

“Why are you not sure?”

“Well, it was quite a long time ago.”

“Mr. Gorman, did you give a statement to the police in connection with this matter?”

“Yes, I did.”

“Would you like to read a copy of the statement to refresh your memory?”

“Okay.”

Gail handed him the pages.

“Take your time. Read it over.”

He read through it, and then looked up.

“Does that help you remember better?”

“I guess so, yes.”

“So what time did you see Mr. Delaney that night?”

“Well, according to this, Lloyd wasn’t on yet at the time I saw Mr. Delaney. And then I fell asleep and didn’t see Lloyd come on.”

“Who were you referring to when you said ‘Lloyd’?”

“Lloyd Robertson, anchorman for the late-night news on CTV.”

“And, to your knowledge, what time does the CTV news come on?”

“Eleven o’clock.”

“So your evidence is that you saw Mr. Delaney outside his house before eleven o’clock on the night of January fifteenth?”

“That’s what it says here, but when I think of it now, I —”

“Thank you, Mr. Gorman. When did you give that statement, do you recall?”

“Right afterwards.”

“Right after Mrs. Delaney was killed?”

“Objection, My Lord,” I said dutifully.

“I’ll rephrase that, My Lord. Mrs. Delaney died on January fifteenth. And you gave your statement shortly afterwards.”

“Must have been the following day.”

“Would you agree that your memory of the events of that night would likely be more clear closer to the time of those events than it would be now, four months later?”

“I tend to doze off and wake up a lot, you see, so —”

“Please answer my question, Mr. Gorman. Would you like me to repeat it?”

“No. But let me tell you this. My memory of being in a landing craft on the sixth day of June, 1944, is crystal clear in my mind, much more so than my memory of what time I went out for groceries two days ago!”

The jury laughed at that, not in mockery but in sympathy with Mr. Gorman, war veteran Gorman, who had fought for our country in the Second World War. I suspect that squelched any plan Gail might have considered to have Gorman declared a hostile witness, so she could cross-examine him on his prior inconsistent statement. She let him off the hook. The jury had heard that the witness had previously stated that Delaney was home before eleven o’clock. Gail would have to be content with that for the time being.

I, however, had a witness lined up to speak to the Environment Canada weather summary for that day, so I wanted Gorman clearly on the record about the snowfall.

I stood and asked him: “Mr. Gorman, do you recall what the weather was like that night?”

“Snow blew up overnight, I remember that.”

“Did you take a look, to see what it was doing outside?”

“Oh yes, I got up and looked out. It was really loud against my window. I had work done on my windows just for that reason, to keep the weather out. They held up just fine.”

“That’s good. When you looked out to check the weather, did you see anyone around?”

“Well, I saw Beau.”

That was as good as it was going to get for us, so I moved on to another thing I wanted the jury to hear.

“Did you see anybody else around that night, Mr. Gorman?”

“Yes, I did. I saw some young fellow skulking around.”

“Where exactly was he?”

“He seemed to move around. He was over by Delaney’s, then he was at the house next door to Delaney’s, then he disappeared.”

“How long was he out there, that you could see?”

“A few minutes.”

“What was he doing?”

“Just loitering and peering around, at the time I caught sight of him.”

“Can you describe him for us?”

“Skinny and wearing a hooded sweatshirt. I couldn’t see his face or his hair, or anything, so I wouldn’t know him again if I fell over him.”

“Those are my questions. Thank you, Mr. Gorman.”

After two days of testimony, the Crown rested its case.

Court would be sitting for only three days the following week, because Justice Palmer was booked to attend a conference in London. If all went according to plan I would have everybody but my star witness, Beau Delaney, wrapped up in those three days. So I opened the case for the defence on Monday with a silent but fervent prayer that all would go according to plan. No surprises.

The first thing I did was call a meteorologist with Environment Canada, who brought his records for January 15 and 16, 1992. The snow started just after midnight. So if Mr. Gorman saw Beau when he got up to check out the storm, this corroborated Beau’s own estimate of the time he arrived home, and not the earlier time asserted by the Crown.

After that, we presented our version of how the fatal head wound was incurred. Our pathology expert, Dr. Andrea Mertens, testified in exacting detail about the shape and depth of the skull fracture, and had no hesitation in concluding that the wound was consistent with Peggy falling and hitting the back of her head on the rock. We went further than that, and had our engineer, Wes Kaulbeck, give us all kinds of impressive evidence on body weight and the velocity of a fall, and the forces in play, and the strength of the materials involved — rock and skull bone. In the engineer’s expert opinion, Peggy’s fall down the stairs could well have resulted in the skull fracture that caused her death. Gail Kirk and Bill MacEwen spent a couple of hours trying to chip away at our witnesses on cross, but they didn’t do us any serious harm.

I went into overdrive the next day with a throng of character witnesses on Beau’s behalf. I called his parish priest, the president of the Kiwanis Club, the woman in charge of the food bank where Delaney and his family regularly volunteered. I called the president of the Nova Scotia Barristers’ Society. I called Peggy’s sister, Sheila, and her brother-in-law, Angus. They both spoke glowingly of Beau, who, along with all his other fine qualities, had never shown any inclination towards violence. I could have called hundreds of witnesses who could speak to Delaney’s good character, but we had to be reasonable.

Our next witness was in town as the result of a conversation I had had with my client a couple of weeks before the trial began.

“We’re certainly going to build you up, Beau, with all our character witnesses. And I assume the Crown has not been able to find anybody who has ever seen you become violent under any circumstances.”

“Exactly.”

“And we could call an endless parade of witnesses of our own who can say you’ve never been violent, but then why would you be violent, unless you were provoked? Which of course is the Crown’s theory.”

“How about somebody who can say I did not react with violence even when I was provoked?”

“Wouldn’t that be nice!”

“Did you ever hear about the incident with Wayne Theriault?”

“Who’s he?”

“An old client of mine. He ambushed me outside my office one night. Jumped me when I was heading to my car. I got him calmed down. Beau Delaney, cool and non-violent in a potentially explosive situation.”

“Any witnesses to this incident?”

“None living.”

“What? What are you saying?”

“I mean Peggy was in the car.”

“Oh. No other witnesses?”

“A baby too young to remember. The only other witness was Theriault himself.”

“What are the chances he’d give evidence in your favour, if he was that pissed off at you?”

“Try him and see.”

“Where is he?”

“Renous.”

“He’s sitting in a maximum security prison making crafts for the annual Defence Lawyer Appreciation Day.”

“Hey, Wayne and I got along okay. He knew he was going to do time. All we could do was try to keep the parole eligibility date down, and I got him the minimum. And I didn’t report him for breach of his bail conditions when he was stalking me at midnight, and threatening my life. Give him a call.”

“He’ll say anything to get out of there for a day. A point the Crown will be quick to make.”

“Give it a try. See what he says.”

So on the third day of the defence’s case, at my client’s insistence, we called a convicted murderer to testify as a character witness for a man accused of murder.

There was extra security in the courtroom, and the jurors were openly curious. Our witness was costumed in an ill-fitting black business suit, but nobody would mistake him for a member of the Chamber of Commerce. He had light brown hair pushed back from his forehead and a nose that looked as if it had been smashed. That might not make him stand out in a line-up of his peers, but the tattoo of a dragon visible on the side of his neck could be considered a distinguishing feature. His knuckles were tattooed as well. Instead of the customary “hate” and “love,” his knuckles read “hate” and “tail.” He was our man. I plunged in.

“Please state your name for the court.”

“Wayne Joseph Theriault.”

“Where do you live, Mr. Theriault?”

“I’ve gone back to my roots, in New Brunswick. Born and raised there; now I’m back. My retirement years, you might say.”

That’s all I needed, a smartass on the stand. He wasn’t this cocky when I went over his testimony with him in the morning, after he arrived with his Corrections Canada escort.

“Where in New Brunswick are you living now?”

“The Atlantic Institution in Renous.”

“And that is . . .”

“Maximum security prison.”

“How did you end up there?”

“I was convicted of murder.”

There was a gasp from a couple of the jurors.

“But I didn’t do it. Or, like, I did it, but it wasn’t murder.”

I saw the two Crown attorneys exchange a glance. The last thing I wanted was any talk of “I did it, but it wasn’t really murder” during this trial.

“We’re not here to retry your case, Mr. Theriault. Could you tell us how you came to know Mr. Delaney.”

“Beau helped me out of a few scrapes during my time here in Halifax.”

“Helped you out in what way?”

“Beau’s the man!”

Now he was affecting ghetto speech. I had to keep him on track.

“Could you be more specific, Mr. Theriault? How did Mr. Delaney help you?”

“He’s a great lawyer, man. He got me off on a whole string of theft and robbery-type offences. And it wasn’t easy, ’cause I done them! But he’s good!”

“So you were a client of Mr. Delaney, and he was successful in defending you on charges you faced before the murder charge.”

“Yeah, we ran out of luck on that one. But can’t win ’em all, eh? That’s the way I look at it.”

“Now, do you recall an incident involving Mr. Delaney back in 1986, when you were out on bail awaiting your trial for murder?”

“Yeah, I got a little ticked at Beau that night.”

“Why was that?”

“He told me I should plead to the murder because there was no way he could get me off. Said he’d work out a deal with the Crown, get me a good parole date to run by the judge. The usual, you know.”

“And you didn’t agree with that strategy.”

“I didn’t want to serve no time. It was self-defence. The guy I wasted, he deserved it. So the night of this incident, I was pounding back the booze and I got hold of some coke and I was all fucked up.” Theriault turned to the judge. “Excuse my French, Your Honour. Anyway, I went looking for Beau. I knew he was working late because I cruised by his office and seen the light on. I went to a phone booth and made a call to him, telling him what I wanted him to do. But he told me to go home or I’d get caught for breaching my bail conditions, by being out past curfew and drunk and coked up. I called him again and hollered at him and told him to fuck off and to make sure he got me off the murder rap. He hung up on me. So I went back to his office building and hung around and waited till he came out. I got myself all worked up against him. When he came out the door, I jumped him.”

“How tall are you, Mr. Theriault?”

“I’m six foot one.”

“And how much do you weigh?”

“Just under two hundred pounds.”

“So you’re a big man, but not quite as tall and heavy as Mr. Delaney. Would you agree with that?”

“Yeah, he’s a big dude, no question.”

“What happened when you jumped Mr. Delaney outside his office?”

“He flipped me off him.”

“How?”

“I don’t know. I just ended up on the ground.”

“Then what?”

“I tried to get up and go at him again. But he held me down by putting his foot on my chest.”

“Did that hurt?”

“It didn’t really hurt; it just kept me from getting up.”

“Then what?”

“He tried to talk me down. Get me to chill out. Said we’d talk about the case when I was straight and sober. Told me he’d get a cab and send me home. Said if I got caught breaching my bail, I’d never get bail again.”

“And then?”

“When he thought I had cooled off, he eased his foot up. Reached down with his hand to help me stand. I got up, and he turned around and walked over to his car. He put the key in the door, and I ran after him and put my arm around his throat and had my fist ready to slam him in the side of the head.”

“What happened at that time?”

“I didn’t do nothin’. I backed off.”

“How come?”

“Because I seen he had his wife in the car. She was waiting for him. Her and a little kid.”

“Witnesses.”

“I didn’t give a fuck about witnesses! It was the man’s wife! And his kid! I wasn’t going to beat a man up in front of his family. What kind of an animal would do that?”

“What did Mr. Delaney do at that point?”

“Beau had it all under control. He said: ‘Wayne, you don’t want to start this. Walk away. We’ll talk when you’re sober. And if I get a sincere apology and if I think you won’t try this again, I’ll stay on as your lawyer. If not, I’m cutting you loose. Now back off, or my wife will go for the police.’ I looked at the wife and kid. They were staring at me like I was something in a horror movie. I felt like a lowlife piece of shit. I let him go, and I took off.”

“Were there any more . . . scuffles . . . between you and Mr. Delaney?”

“No, that was it. I ate crow when I seen him next day, and he stayed on as my lawyer. I swiped a nice bottle of Scotch and gave it to him as a peace offering. He probably still has it. Beau’s not much of a drinker. He got me as good a deal as I was going to get on the murder charge. I never seen him again till now.”

“Thank you, Mr. Theriault. The Crown attorney may have some questions.”

She did indeed. Gail Kirk rose to her feet. “Mr. Theriault, how long have you been in Renous prison?”

“Six years.”

“Have you had any other escorted outings or temporary leaves of absence during your time at Renous?”

“Nope.”

“So this is your first day away from the prison in six years?”

“Yeah.”

“You’d do or say anything to get out of prison for a day, wouldn’t you?”

“Yeah, maybe so.” I winced when I heard that, but it was a chance we had decided to take.

“Like, I coulda come down to Halifax,” Theriault continued, “and told Beau and his lawyer I’d say nice things about Beau, and then I coulda come in here and shit all over Beau’s case just for the hell of it, ’cause I got the day out anyway. But I didn’t. I came in here and told the truth about Beau because he’s a good guy, and a good lawyer, and he gave me a lot of help over the years. And he didn’t beat the piss out of me when I went after him all drugged up and tanked up, and he could have killed me, but he didn’t.”

I could have kissed him, but I didn’t. I assumed Gail Kirk had a lot more questions she wanted to ask, but she decided to cut her losses, and said: “No further questions for this witness, My Lord.”

“Mr. Collins? Anything arising out of that?”

“No, My Lord.”

“Thank you, Mr. Theriault. You may go. With your escort.”