Stolen Life

by Rudy Wiebe

  A factor that did not fit with Dr. Dowling’s conclusion that a ligature had been the primary cause of death was the broken hyoid bone. This “tiny bone […] which supports the voice box” is located “high up in the neck […] and is well protected” so that only a sharp blow would break it. Or possibly “some manual pressure by hands on the neck.”

  Besides numerous contusions to head and body, one other forensic fact was that “the anus was bruised,” an injury “consistent with the insertion of some blunt instrument […] not to a great depth, probably not more than one, one and a half inches.” This injury would not cause death; nor had it been made by a sharp instrument, like a knife.

  Dwayne Wenger and Shirley Anne Salmon had been legally sentenced in January 1991 for their responsibility in the Charles Skwarok homicide: Dwayne pleading guilty to second-degree murder and Shirley Anne pleading guilty to aggravated assault. On 19 March 1991, Madame Justice Nina Foster carefully instructed the jury that the guilt or innocence of each of the remaining accused, Yvonne Johnson and Ernest Jensen, must be considered separately. She reviewed the crucial definitions of legal terms:

  Manslaughter: causing the death of a person, though unintentionally and unplanned, while committing an unlawful act;

  Second-degree murder: when a death is

  a) caused by an unlawful act,

  b) the accused had the specific intent to do it;

  First-degree murder: when a death is

  a) caused by an unlawful act,

  b) planned and deliberate, and/or

  c) caused while committing or attempting to commit the offences of forcible confinement or sexual assault.

  A jury gives no reason for its verdict; in fact it is always instructed by the presiding judge to keep everything about its deliberations secret: “If you disclose [your deliberations and your votes], such disclosure constitutes a criminal offence.” The jury’s only duty is to come to a unanimous decision on the basis of the evidence it believes to be true “beyond a reasonable doubt.”

  There was strong physical evidence against Ernie Jensen in the case—shoeprints, blood on his T-shirt, hair samples, paint chips. But there was no physical evidence whatsoever against Yvonne. The Crown’s case against her depended solely on their “star” eye-witnesses, Shirley Anne Salmon and Lyle Schmidt. Shirley Anne had been in the basement during the beating, Lyle had been with Yvonne immediately after; the credibility of their verbal testimony would determine Yvonne’s sentence.

  From the trial record it would appear that Shirley Anne laid the basis in the jury’s mind for Yvonne’s first-degree-murder conviction; Yvonne insists that, in testifying as she did, her cousin lied over and over again.

  The first of what Yvonne considers Shirley Anne’s most damaging lies on the stand was that, when the four of them were drinking in the living room late in the evening and Chuck phoned and said he was coming over, Yvonne hung up and said, “Let’s do him in.” Then Shirley Anne immediately tried to temper the statement’s meaning by insisting that “no one took the words seriously.”

  Yvonne has explained to me that she does not speak that way; such an expression is not in her vocabulary. She would say, “Let’s do him,” meaning to beat him.

  Speaking about this critical matter in the cell-shot record, Dwayne told undercover agent Constable Harvey Jones that Shirley Anne “started it … and got us all worked up and then he [Chuck] phoned … and then, in a way we had it planned that we were gonna fuckin’ do this guy in.”

  Ernie Jensen added, “Gonna die.”

  “In a way we had it planned” could be seen as Dwayne’s careless surmise, with a general “we” that could mean anyone or all; the question is, which one of them actually said the key words, “Let’s do him in”? Yvonne has always insisted to me that Ernie said them; and his statement recorded in the cell shot, “Gonna die,” would seem to corroborate her.

  Now, whether Shirley Anne took the words seriously or not, her testimony asserted that they had been said by Yvonne. And so the jury could begin to believe that Yvonne was developing a plan for murder.

  Yvonne says Shirley Anne’s second lie on the stand was that, during the calls made earlier in the evening, Yvonne invited Chuck to come to her house—implying that by supper time Yvonne already had “a plan” to “do him in.” Yvonne insists she was then not capable of planning anything; she denies that she talked to Chuck at all on the phone before supper, and Ernie Jensen corroborates her denial. On 5 March 1994, Ernie wrote to Yvonne from Edmonton Prison, where he is serving his ten-year sentence.

  You did not talk to [Chuck] on the phone. You dialed the number and gave the phone to Shirley and told her, You talk to him, you are the single one, you talk.

  Yvonne says she and Ernie heard Shirley Anne try for half an hour to “sex-talk” Chuck into coming over, and then he said he was going fishing with his cousins and hung up; however, about five hours later, he called and said he was coming over. Alarmed and worried, Yvonne simply said, “Okay,” and in a few moments Chuck appeared alone with beer and a bag of sex magazines “to party.”

  The jury, if they found Shirley Anne convincing, could now begin considering a sentence of first-degree murder because the unlawful act was “planned and deliberate.”

  That “confinement” had taken place—another reason for a first-degree verdict—was stated by J. Barry Hill in his summation to the jury, but not spoken to by Brian Beresh in his jury address; apparently he thought it was evident that, if Skwarok was confined, there was no evidence to indicate that Yvonne had anything to do with it.

  However, there was a final reason for a first-degree verdict. Sexual assault. And Shirley Anne testified that it was Yvonne who sodomized Chuck Skwarok: “Yvonne says to me, she ordered, and she says, ‘Take his pants off, Shirley Anne,’ and I was scared. So without even thinking, I don’t know why I did it. I closed my eyes for a minute, and I took his pants off, and I looked and he was naked from the waist down.”

  [Yvonne writes on the trial record, an arrow pointing to these words, “I got first for this.”]

  And without any further directed question from Crown Prosecutor Scott Newark—the only time Hill did not present his witnesses—Shirley Anne immediately continued with her version of events:

  “So Yvonne picked up a wooden stool leg, and she was hovering over the deceased. I couldn’t see. She was blocking my view, and I couldn’t see exactly what she was doing, but I could see from the motion she was making with her arm what she was doing, and she says to the deceased, ‘This is how little kids feel.’ ”

  Q: What did she do with the table leg?

  A: She took it, and I assumed she shoved it up his rectum.

  Yvonne’s defence lawyer, Brian Beresh, interrupted immediately with “Well, let’s not assume anything.”

  One “wooden stool leg” was filed in court as evidence and labelled “Exhibit number 8”; later, “two small furniture legs” were added as “Exhibit number 31,” but no fingerprints to incriminate Yvonne were gathered from any of them; nor did the prosecutor distinguish between them as which might have been used. However, if Shirley Anne were to be believed, then death could have occurred while “committing a sexual assault” with the wooden legs.

  Both Dwayne’s and Ernie’s evidence support Yvonne’s contention that she did not assault Chuck with the leg. In the cell shot, Dwayne said it was he and Ernie who took off Chuck’s clothes and then “Ernie shoved that thing up his ass.” And Ernie writes Yvonne in his March 1994 letter: “One important thing to remember is that Shirley said that it was you that stuck that thing in Chuck’s ass when it was me.” It is for these and other reasons, Ernie concludes his letter, “I am going to do my best to get a perjury charge laid against her as soon as possible … if we just point out that Shirley lied we should get a new trial.”

  Shirley Anne did not testify about—nor was she questioned about—what Yvonne insists are the facts:

  1) that others, not Yvonne, did the minutes-
long strangling;

  2) that Ernie and Shirley Anne fought with and finally kicked Chuck long and hard enough when he was down that, according to Yvonne, there was a loud “snap” which possibly indicated the bone in his neck had been broken;

  3) that Shirley Anne was completely bloody from the beating she helped give Chuck.

  Instead, Shirley Anne testified that she mostly watched, that it was “the boys” who did the beating and it was Yvonne, “she says to all of us, ‘Knock him out’ and the boys are just bewildered and looking nervously, not knowing what to do […] so she picked up a telephone cord […] She took it and wrapped it around the deceased’s neck, and she pulled it.”

  Shirley Anne tempered her testimony immediately and in this she is, for once, in agreement with Yvonne’s account; she continued:

  “Like I had timed myself already. She pulled it for about ten seconds. Fifteen seconds would have been too long, ten seconds.”

  Q: What about the other two, Ernie and Dwayne? What were they doing while she’s doing this?

  A: They’re just standing there, and then she lets go, and he’s just laying there, and we all thought he was dead, and so the boys feel his pulse, and they said there was none.

  Q: Who was it felt his pulse?

  A: Both of the boys … and then I felt his pulse, and it was there.

  This is clearly contradictory testimony: Yvonne chokes Chuck, but only for ten seconds, which is not nearly long enough to cause death. Nevertheless, the boys find no pulse—so is he dead as a direct result of Yvonne’s choking? No, Shirley Anne says she found a pulse. The question arises: can this witness be believed at all?

  Under Brian Beresh’s relentless cross-examination, Shirley Anne admitted that she had, at her first questioning, lied to the police when she told them “she had seen nothing of the beating.” She lied, she said, “intentionally […] to a police officer,” but only, she insisted, because by lying she thought she could protect her cousin Yvonne, whom she loved. Consideration for herself had had, apparently, nothing to do with her lies. And she was now “so sorry I didn’t tell the truth” then, but “in the last eighteen months, I have learned to tell the truth.”

  “Well,” Beresh countered, “learned perhaps for a particular reason? Tell me, a judge heard the evidence at a Preliminary Inquiry and ruled it was sufficient to commit you to stand trial for first-degree murder?”

  A: Yes.

  Q: You met with your lawyer and, I take it, part of the discussion was that you might be a Crown witness?

  A: Yes.

  Q: You suggested that?

  A: Yes.

  Q: Right? So of course part of the arrangement would be that you would have to give a statement to the police?

  A: Well actually I didn’t suggest that. It was suggested to me.

  Q: By who?

  A: By my lawyer […] But I was at that point—I was still trying to protect Yvonne.

  Q: In a 70-page statement?

  “Yes,” Shirley Anne replied. “And I knew I was wrong.”

  She does not explain what she knows she was wrong about, but continues that whatever “arrangements” had been made after she had given those statements, they were deals made by her lawyer. “Stirling [Sanderman] didn’t notify me all the time about the deals he made.”

  Q: The deal was that you would be cut free from the charge, that you would get a slap on the wrists, is that right?

  A: In September, when he said that, I asked him if I could have more time […]. I wanted to be punished for the crime that was committed. I felt, I should have been punished.

  Q: Well, with respect, you were trying to get out of it, and—

  “You see,” Shirley Anne interrupted, “I’m not in control of the authority, and what kind of deals lawyers make. I just go along with them.

  Q: I’m suggesting, madam, that on the contrary […] you know very well what’s going on.

  A: Yes, I know that there’s deals that go on.

  Q: Well, what did your lawyer—

  And Shirley Anne interrupted him again: “But I’ll be honest with you. I’m going to acknowledge something. If it wasn’t for the power of God, I wouldn’t be here. I wouldn’t be standing here, and I will never be ashamed of him, because someday everybody is going to realize that there really is a living God.”

  Brian Beresh made no attempt to hide his sarcasm. “Well, let’s get back to this courtroom for a minute.”

  Shirley Anne had been made to confess that she lied to the police during much of the investigation into the case. In his cross-examination, Beresh had emphasized as strongly as he could that Shirley Anne, the confessed liar, was now lying again because of the “sweetheart deal of the century” the Crown had given her. The Crown had already kept its part of the bargain in January: a ludicrously light sentence of twelve months in prison and five years’ probation for aggravated assault. And now Shirley Anne was upholding her part of the deal by lying, though he offered the jury no direct counter-evidence to prove exactly how.

  Yvonne says now, sadly, “Shirley Anne was well coached. That cop Bradley flew from Whitehorse twice to interview her. And Brian just worked her over on all her contradictions.”

  It would seem that the two Wetaskiwin Crown prosecutors, J. Barry Hill and Scott Newark, knew their local jurors—four were farmers and the other eight were residents of two large neighbouring towns—very well. Shirley Anne’s ringing declaration of her personal conversion, of her faith in “a living God” without whose power, she said—rather oddly—“I wouldn’t be standing here,” and her repeated regret for what happened because of her admitted “exaggeration” and her repeated desire to be “punished enough,” these professions obviously carried the day. And so, despite the fact that her own original first-degree-murder charge had been reduced to a sentence of more or less time already served—evidence of a pretty good deal indeed—the jury now found Shirley Anne’s testimony not only believable “beyond a reasonable doubt,” but very likely, from their later conviction of Yvonne, believable in absolutely every detail. Believable in the most incriminating manner.

  And it would appear that local hang-about Lyle Schmidt helped to solidify their opinion. The one physical fact he had to contribute to the case—the knife—had already been ruled irrelevant to the death by the forensic expert; in any case, it revealed neither blood nor fingerprints. Therefore, all of Lyle’s evidence, like Shirley Anne’s, depended on his word. The core of his testimony was that:

  1) after they left the Wayside Inn, Yvonne made a phone call and then she told him she had killed somebody;

  2) the death had been caused by a knife;

  for the next four hours or so they “were just driving around, drinking beer, and the subject came out she wanted some help to get rid of the body, the murder weapon.” When they finally went into her house, he woke Ernie on the couch, who told them “that he had taken the person out to the garbage dump, at the time he was still alive and choking on his blood, and he had finished the person off with the power [gesturing with his fist].” Then, Lyle testified Ernie told him, “They buried him beside a group of trees that was out there, and burnt the car.”

  But almost all the physical facts that Lyle cited—concerning the knife, the burial, the burned car—had already been proven false in court by police and expert witness testimony. And Brian Beresh called no witnesses to further undermine Lyle’s version of events. What he did do was to make a thorough cross-examination to try to undermine Lyle’s credibility. Lyle admitted that for much of his life he had had a problem with drinking, and that his sister, whom he awakened at his mother’s house with a telephone call before five o’clock the morning of the murder, told him he was “pissed,” drunk. In response to that, Beresh asked:

  Q: Your sister, I take it, has known you for a number of years?

  A: My sister and me have hated each other for approximately twenty years.

  Beresh also made Lyle admit that he had been committed to Alberta Hospital
, Ponoka, by his mother when he was sixteen (i.e., over twenty years before) and while there been “diagnosed as having poor control of aggressive and hostile impulses”; he further presented a recent affidavit filed by Lyle’s former wife for her divorce from him: particularly apropos was his violence against her to the point where she twice attempted suicide and was hospitalized both for having been physically beaten and for psychiatric care.

  Then Beresh took up the detail, made in Lyle’s first statement to the police, that he was at the Wayside Inn “girl hunting.”

  Q: I take it that means precisely that, that you’re hunting […] That when you first talked to [Yvonne], sex was on your mind.

  A: Sex is always on my mind. I mean, I’m single.

  Q: You were then?

  A: Okay, [my wife’s] gone, and what am I supposed to do, become a monk?

  Q: Well, I suggest—

  A: That—that I can’t do. Like sex is always on my mind. If I’m gonna get it, I’m gonna get it.

  Q: I suggest that the way you got it that night was not with Miss Johnson’s consent.

  A: You’re suggesting I raped her?

  Q: You gather what you can from that, sir.

  A: Well, if it’s not with her consent, that must mean I raped her.

  For several hours, Yvonne says, she was forced to listen to the man who had first harassed, then taunted, and finally raped her—“an intimacy” was all he would admit to on the stand: Lyle Schmidt given a stage at last, complete with media reporters and a packed courtroom audience, pouring out details and smart responses that reflected so well on himself, on his brilliant deductive powers, details of that horrible night and what she in her blacking out, alcoholic despair had supposedly said. Most of it was distortion, Yvonne says, lies slanted to slam her, until finally he came to the matter of the knife.