by Rudy Wiebe
Though the forensic expert, Dr. Dowling, had stated a knife could only have been used to make “a superficial bruise” on the right wrist, nevertheless Crown Prosecutor Hill questioned Lyle about the knife in language that must have shocked the middle-class jury with the violence of an assault:
Hill: And you indicated there was conversation about a knife.
What was said about that, please? Schmidt: Okay, she mentioned how she shoved a knife up his ass, how she had cut his wrists with it and cut him up good.
Q: Was there any conversation about why any of this happened? […].
A: The reason why he—they were doing this to him was apparently he tried to molest her youngest daughter.
Q: In the course of using the knife, was anything said to you about the use of the knife, any conversation?
A: Just the fact that it was shoved up his ass and cutting his wrists and cutting him with it.
Q: And was anything said to you about anything she may have said when that was done, when the knife was shoved up the ass?
A: What she told me was that as she was doing that, she was asking the guy how that felt, having it up his ass, you know; and like the idea was that’s what it would feel like to, in the words, shove his prick in a little girl’s cunt.
It was then that Yvonne spoke in court; once, very loudly.
The Accused, Johnson: How do you know how that feels? I didn’t say that.
It stands on the court record that these eleven short words were “taken down in shorthand and transcribed from [her] notes to the best of [her] skill and ability” by Jackie Moore, Official Court Reporter. I wanted to hear from Yvonne what she meant by them.
To begin with, she told me, the record does not indicate the long pause between the first seven words and the final four.
“But what did you mean when you blurted that out, interrupted the court?” I asked. “How did it happen?”
“Lyle was up there for himself,” she tells me. “He had a platform and Hill was feeding him, whatever he felt like saying he said, and I wanted him to stop, all the terrible stuff, and I have to sit and listen, nobody’s concerned about the truth, just this court game going on day after day and I can’t move, I can’t speak, and I’m getting my heart tore out. I just looked at Lyle and the words came out. I was shocked at myself. I just thought out loud.
“And there was dead silence when I said it. Not a sound.”
I ask, “Lyle testified you said it while you were ‘doing that’ with the knife. Did you?”
“No, I never did anything like that with the knife, I only cut the cord with it and once touched his wrist. The medical expert said Chuck wasn’t hurt with a knife. And when I pretended I was doing it, with the leg, I never said a word. I had asked him earlier, right at the beginning in the basement, ‘Do you really know how it feels to be raped as a child?’ I wanted him to confess then, but not later.”
“So, I still don’t understand,” I tell her, “what you meant in court: ‘How do you know how that feels?”
“I was talking to Lyle, ‘How do you know, what it feels like.’ ”
“In the sense that, ‘You know how it feels, and you describe it accurately because you’ve abused kids yourself’?”
“No, more like ‘What could you possibly know about what it feels like for a little girl?’ I was looking at Lyle, he was grandstanding, making it up, talking ‘ass’ and ‘little girl’ and ‘cunt’ and it was all too much because I know what it’s like, and he’s up there with Hill, playing their games with my life, and I wanted him to stop! And he did. Dead silence.
“And when I spoke, Hill jumped and looked at me, and the judge and the whole jury were staring. All of a sudden I didn’t want to be seen, it was too awful. So I stuck my head down, to hide, but I had to face them so I said out loud, ‘I didn’t say that’—to the court, in the sense, ‘I never said what Lyle says I did.’
“And then I broke down, hiding behind my hair. Brian looked at me, and interrupted Hill who was gonna go on as if nothing had happened, ‘Excuse me, My Lady,’ he says to the judge, and something about have a little patience. And he come over and asked me, ‘Do you want to take a break?’ I shook my head, but he turned to the judge and there was a short adjournment.
Beyond the contradictions already noted between cell-shot and “star witness” testimony, at one point in the cell shot Dwayne flatly contradicted what Lyle and Shirley Anne said about Yvonne’s action in the possible sexual assault:
Wenger: Ernie and I took his clothes off and said, how do you like this? (Inaudible) fuckin’ diddling little kids. You’ll get your own medicine, and he [i.e., Ernie] shoved it up.
The jury did not hear this contradiction because on 8 March 1991, following a request from Glen Allen, the cell-shot evidence was ruled inadmissible by Judge Foster. She stated that, after Ernie Jensen was arrested, “Corporal Bradley was unhappy with the results of the interview [with him], and he arranged for Constable Jones to do an undercover operation […]. No court order was obtained […]. Jones persistently […] and actively attempted to elicit information from the accused […]. This undercover operation obviously and admittedly fails [as] acceptable police conduct […]. This, in my view, is a most unsatisfactory way to interview a person facing a charge of first-degree murder […]. The admission of these tapes as evidence would bring the administration of justice into disrepute. I therefore order their exclusion pursuant to Section 24(2) of the Charter.”
Therefore, though Beresh worked hard to prove that Lyle’s testimony was badly compromised by its factual errors and by his possible rape of the accused, the jury was not presented with direct alternative statements to some of Lyle’s most damaging testimony. Nor, apparently, was the jury at all influenced by defence counsel’s main argument that there was no evidence presented to prove Yvonne had, or could have, formed an intent to commit murder, though by calling no witnesses he had the right to address it last. Late in the afternoon of 18 March, he ended by exhorting them, “The test of ‘beyond a reasonable doubt’ [is] simply saying, Are you sure. Are you sure […]. And I ask that you conclude Miss Johnson’s involvement in this case is nothing beyond that of culpability for manslaughter. And that, quite frankly, is the verdict I request you bring back. Thank you.”
But, despite anything Brian Beresh said, after Shirley Anne Salmon’s and Lyle Schmidt’s contradictory testimonies, the jury in its collective wisdom “was sure” about Yvonne. It would seem every member was completely convinced by Crown Prosecutor Hill’s outline of Chuck’s death, which he based solely on Shirley Anne’s testimony:
–Yvonne said, “Let’s do him in—that’s planning murder;
–Yvonne kicked him, and he fell back into the basement—that’s confinement;
–Yvonne attacked him with the stool leg—that’s sexual assault;
–Yvonne choked him with a cord (for only ten seconds, Shirley Anne insisted, but Hill skipped over the small detail that his forensic expert had declared it would take three to five minutes of uninterrupted choking to cause death, and apparently the jury skipped with him)—that’s murder.
But perhaps, even more than his summary of the case, it was the particular rhetoric of Hill’s address that overwhelmed the jury with his argument against Yvonne. She remembers the repetition of his words: “these people … are very different from you and me,” and then repeating “these two … these two” while his long arm and pointing finger stabbed across the courtroom from the jury benches to the prisoner’s box: the sound, the tone of “these people,” remain branded into her memory.
In any case, a decision was reached in short order. At 1:42 p.m., on 20 March 1991, the nine men and three women from the judicial district of Wetaskiwin, chosen from the Sheriff’s list of some three hundred, returned to the courtroom, and the foreman, a farmer from nearby Leduc, stated their verdict.
Court Clerk: Your verdict as … the court hath recorded it is for Yvonne Johnson guilty as charged [first-degree murder]
. For Ernest Jensen guilty of second-degree. Do you all agree?
Peter Kopp: Yes.
Janet Sprague: Yes.
Trevor Rosland: Yes.
Finn Oleson: Yes.
Ralph Berquist: Yes.
Lorne Jobs: Yes.
James Schnepf: Yes.
Allen Walkey: Yes.
Brenda Stadler: Yes.
Ray Kuchnerick: Yes.
Dale Sherwood: Yes.
Bonnie Schwartz: Yes.
It was 16 September 1993, and Yvonne and I were circling through her life, as we had so often done. She had begun to tell me the on-going story of her lives and deaths in courtrooms because the month before the Alberta Court of Appeal had finally ruled on her appeal of her sentence of first-degree murder.
She gave me a copy of the thirty-four-page ruling. In it, Appeal Court Madame Justice Mary M. Hetherington wrote that several of Brian Beresh’s arguments were “without merit.” Then she analysed the entire case to refute his major argument that the sentence of “first-degree murder was unreasonable,” and she did so by depending solely on the evidence provided by Shirley Anne Salmon and Lyle Schmidt. She did not, at any point, raise a question about the credibility of that evidence nor the contradictions it contained. And finally, after discussing various relevant details of criminal law, including whether the trial judge had properly instructed the jury regarding Yvonne’s level of intoxication, she ruled that “no substantial wrong or miscarriage of justice has occurred in this case.… [Therefore] I would dismiss Johnson’s appeal.”
And the two other justices—Joseph Stratton and Ellen Picard—signed her ruling, “I concur.”
The three Appeal Court justices accepted the evidence of Dr. Dowling, the forensic expert, that the main cause of death was strangulation. They also accepted Shirley Anne’s testimony that Yvonne had pulled on the ligature cord for ten seconds. However, they completely disregarded his evidence that “for death to result from ligature strangulation, pressure would have to be applied for three to five minutes.” In other words, Judge Hetherington accepted that Yvonne participated in using the ligature on Chuck, but ignored the evidence that ten seconds could not possibly have killed him. As Clayton Ruby, one of Canada’s most respected criminal lawyers, said of this Appeal Court judment, “I think this is a shocking ruling, and an outrageous miscarriage of justice.” He said that in accepting one part of the evidence as significant but seemingly ignoring the other, it ignored crucial evidence and the weaknesses of the Crown’s case.
Nevertheless, in such a situation, only an appeal to the Supreme Court of Canada remained. And since Yvonne’s appeal had been turned down unanimously, the chances—her new lawyer, Felicity Hunter, advised her—of being accepted to be heard in Ottawa could be no better than five per cent.
While preparing a possible appeal to the Supreme Court, Hunter spoke to me several times. She was very disturbed, both by the Alberta Appeal Court ruling and the original trial. She felt that “clearly there should have been severance,” and that cell-shot evidence would have assisted Yvonne’s case. She was also convinced that Shirley Anne had perjured herself, and that sentencing Yvonne to “first” was a “gross travesty of justice.” It “smells rank,” she told me, and corroborates the reputation the Wetaskiwin Judicial District, from which Yvonne’s all-White, largely male jury were drawn, has in Alberta legal circles: for certain crimes “the chance of getting a fair trial there is almost nil.”
Now, Yvonne and I were deep inside the looming stone Prison for Women, not a window anywhere, only walls, the plate iron door, the neon light buzzing faintly as she talked. The bright curtain of the long black-brown hair which she has not cut since her grandfather John Bear died—she promised him she would never again cut it—muffled her voice, veiled her face into a narrow line of nose, nostril, lips, a touch of chin.
“Mom came to my Appeal in Edmonton last October, when I first wrote you,” she said. “Courts are never any good, but Mom came, she hadn’t seen me since I was first sentenced. Pauline Shirt, the Elder, came too from Toronto. She brought a pipe into the courtroom and the officers didn’t want her bringing anything in like that, holding it up to give me courage. But they let her stay, and when I said, ‘That’s my mother,’ they let Mom come up to the side of the box where I was shackled.
“And I looked at her, and she looked a hundred years older than I remembered. And I look at her. ‘Mom!’ I say, ‘I’m doing good, I go do the sweats, I smoke pipe, I do the ceremonies, and I sing on the drums, and you know what? I don’t sound half bad!’
“And she started crying. I leaned over and held her, and I cried too, and I took my hair—I had one side of my hair braided, tied in a wide cloth to signify my mind, body, and spirit, that it was together—and I left one side of my hair unbraided, hanging down, because it covered my heart, to signify sorrow and pity—but not pity in the sense of ‘pity,’ but just humbleness, the most humble way to be. And my hair that was hanging down, I took that hair nearest my heart and I wiped my mother’s tears with it. And I told her, ‘Mom, don’t cry.’ ”
After a moment Yvonne continues, though her voice is breaking:
“And all Mom could say to me was, ‘I don’t want to see you in here.’ Nothing else, she never told me, ’O, by the way we aren’t doing so good outside either; your brother just raped one of your sisters and nearly beat another to death. No, nothing—just ‘I don’t want to see you in here.’
“I held her, and she’s a sma-a-a-all woman, she’s a big woman but she’s sma-all, and she seemed to just need me, so I was strong for her. And I wouldn’t cry any more, I wouldn’t let her see me hurting.”
Her voice grows stronger as she remembers: “That’s why I didn’t cry in Wetaskiwin when they sentenced me for Chuck’s death. Mom was sitting there in court, every day she’d been there, beside her sister whose daughter Shirley Anne saved her own neck by lying on me, and with her lies finished me. I stood there waiting for the sentence and I wanted to scream, I wanted to run, I wanted to die. But if I broke—I thought of my father. ‘No matter what,’ he always said, ‘you hold your head up, and your shoulders back.’ So I put my arms behind me like a Marine would when they tell him to relax, and then I looked at the judge. And you could tell she didn’t like that jury decision, she didn’t want to pronounce it. I saw how her face changed when they said it, and I gave her a nod and I stood back further like, ‘Okay, I’m ready. Do it.’
“And a tear snuck out of my eye, it wasn’t for me, it was just to relax the tenseness of it. And I knew everybody was watching me so I wiped it away so they wouldn’t see it when more would come. And then the judge … she slammed me with twenty-five years.”
After a pause: “My first instinct was to put my head down and hang my hair in front of my face—but I didn’t. They led me out, I couldn’t look on either side of where I was walking. I just wanted to melt, to hide, but I found comfort in them throwing me into a little cell because I was out of the torture. They had finally decided.
“And I could have stayed in that little cell.” Her voice is thinned out almost to transparency. “I could’ve stayed in that cell, I could’ve set my mind to stay there for the next twenty-five years because I would have shut everything out, just let me dry up. But no.…”
16
Since the Time When the Earth Was First Born
The old man said, to have been born imperfect was a sign of specialness […]. The old man explained carefully that in the old days, if a child came with a hare-shorn lip, it wasn’t a terrible thing or a hurtful thing; it meant the child’s soul was still in touch with the Spirit World.
–Yvonne Johnson, Journal 9, Spring 1994
“WE ARE THE ABUSED,” Yvonne writes to me. “Which does not mean we are stupid. It means in our pain we are always thinking, and always alone.”
She is rereading Carl Jung’s Memories, Dreams, Reflections, and discusses with me the “natural mind” he describes: “the mind that springs from natural sources,
and not from opinions taken from books; it … brings with it the peculiar wisdom of nature.”
Sentenced at age twenty-eight to a lifetime in prison, she has to understand what her mind may demand of her:
“My mind is alive, and there is pain. A small word, ’pain—confusion, the unknown, aloneness—if pain could talk, could it identify any limits to what it is? If pain could say what it is, would it ask, ‘What do you think I look like? How do you think I smell, or feel?’ ”
She cannot answer that question directly; her writing, as she admits, is often “all over the place […] as I jump back and forth through time and space […]. [Because] I’m writing as if I’m reliving it as I am, and it tears me apart to do this.”
But reading Carl Jung has widened the language within which she can understand herself. “Jung has the White words,” she writes, “but to me he thinks like an Indian […]. He writes this which is me. I wish I could speak to him.”
He is certainly speaking to her in prison. On 19 December 1994 she concludes fifteen pages of her daily journal grappling with his Memories:
“He writes back then [1961, the year she was born] what is me right now. I become aware of affinity, I could establish ties with something, some one. As most of my life has been to let myself be carried along by currents without a notion of where it took me, or even consequence. My dear Jung as you are to me now. I now will sleep with this to ponder, though I feel I know it already. His new chapter begins, The Work’, on page 200 and the clock tells me it is 1:19 a.m. Time to try to lay it to rest.”
