Truth and Honour

by Greg Marquis

  Criminology and legal-studies literature suggests that in some instances investigators or prosecutors are simply out to get a specific individual. But in most cases, miscarriages of justice stem from a combination of incomplete police work, mistaken identity, stereotyping, and a weak defence. Identification errors can start at the scene of the crime and be amplified with police show-ups and lineups. As discussed earlier, the Reid Technique, favoured by most investigators for decades, has been criticized for provoking false confessions and false testimony by witnesses.8 In Canada prior to 1963, and in much of the United States where the death penalty remains in place (with more than seven hundred being executed between 1976 and 2001), the reality of wrongful conviction has meant that innocent people have been executed and many more sentenced to long prison terms for crimes they did not commit. It does not appear that any of the executed, or most of the nearly three thousand Americans on death row in 2016, were or are wealthy.9

  When these cases are reopened, usually after investigative reporting has raised public concern, a number of things can happen. New evidence or excluded old evidence, tying the actual perpetrator to the crime, comes to light. In some cases, the crime remains unsolved. Eyewitness and jailhouse informants, out of guilt or remorse, change their original incriminating testimony. New forensic evidence, notably DNA typing, is introduced to exclude the wrongfully convicted from the murder or sexual assault scene. Some of the best-known Canadian examples of overturned convictions are the cases of Steven Truscott, Donald Marshall Jr., David Milgaard, Guy Paul Morin, and Thomas Sophonow.

  According to criminologist D. Kim Rossmo (formerly a member of the Vancouver Police Department), the two leading contributing factors in two-hundred-and-forty cases of wrongful conviction identified by The Innocence Project were problematic forensic science and misconduct by police and or prosecutors. Rossmo adds his own category: “faulty investigative thinking.” Related to this was intuition, the “gut instinct” of investigators, which is often hasty, affected by emotion, and “prone to error.” “Tunnel vision” (the practice of police focusing on a single suspect early in the investigation to the exclusion of other possible leads) and “confirmation bias” (the tendency, often the result of police intuition, to find or interpret information based on a person’s pre-existing biases) were also problems. Another danger is “working backward from the suspect to the crime.” In the Steven Truscott case of 1959, for example, the Ontario Provincial Police appear to have “invented” the time of death of victim Lynne Harper because of their determination to convict fourteen-year-old Truscott who seemed to match what they were looking for in a suspect.10

  The SJPF has been associated with a number of actual or alleged cases of wrongful conviction, but not in recent years. The best known case is that of Erin Michael Walsh, featured in an episode of CBC’s The Fifth Estate, hosted by Linden McIntyre, in 2007. In 1975 Walsh, a petty criminal, visited Saint John to try to sell speed. He was convicted of second-degree murder for the shotgun slaying of Melvin Peters at Tin Can Beach in the city’s South end. The trial lasted four days and the jury deliberated for one hour before returning a guilty verdict. Prosecutor William McCarroll later became a judge.11 Walsh’s appeal attempt failed but almost three decades later he acquired the Crown’s full file, not available to his lawyer in 1975, from the provincial archives. It revealed several types of information, such as the jailhouse conversations of witnesses, which could have raised reasonable doubt with a jury. With the assistance of Canada’s Association in Defence of the Wrongfully Convicted, he applied to the federal Minister of Justice for a review of his case. The minister referred the matter to the provincial Court of Appeal which in 2008 quashed the conviction. A year later, Walsh, who had been suing the provincial government and the City of Saint John, reached a deal on compensation. In 2010, he died of cancer.12

  The second example, in this case an alleged wrongful conviction, was the trial of Bobby Mailman and Wally Gillespie for beating George Leaman with a shotgun butt and axe and setting him on fire in 1983. In 1984, the defendants had been represented by Wilber MacLeod, who, fourteen years later, pointed out that in the 1980s defendants did not benefit from full disclosure, such as statements given to the police. The first trial produced a deadlocked jury; a second trial ended with a conviction. Mailman, who had been prosecuted for murder three times in one case and for the attempted murder of a police officer and acquitted each time, was the type of offender the authorities wanted behind bars. In 1994, the Supreme Court of Canada denied the defendants leave to appeal. One of the complicating factors in reopening the case was that a number of exhibits from the trial had been destroyed.

  By 1998, Mailman and Gillespie were pursuing their case from prison. They had refused to admit guilt in order to be released earlier and had passed lie-detector tests. Two witnesses for the Crown, in a case where there was no forensic evidence linking the accused with the crime, claimed they had lied at the trial. Both had been given money by the SJPF—one to act as an informant—and the Crown dropped murder charges against the adult witness in return for her testimony. The provincial Justice Department and the police refused to release the files on the investigation and the provincial minister explained that the only hope for Gillespie and Mailman was to appeal to the federal Minister of Justice under section 690, the “last chance” clause, of the Criminal Code.13 Investigative reporting on the issue produced a somewhat unprecedented public statement by SJPF Chief Butch Cogswell, who had been a polygraph officer in the 1980s. Cogswell denounced coverage of the controversy in the Telegraph-Journal as characterized by “falsehood, misrepresentation and distortions” and tried to rebut various evidentiary issues identified by the convicted men, including the credibility of the two witnesses. The Crown attorneys in the original case also stood by the prosecution. The SJPF refused to release investigation files to the media or public but it did co-operate with the lawyer working on behalf of the Criminal Conviction Review Group of the federal Department of Justice. In 1998, the NB Court of Appeal refused to hear the new testimony of the male witness, who had been only sixteen at the time of the murder. Although both men were later released on parole, they were never exonerated.14

  The third example of a possible wrongful conviction by the SJPF was the attempt by George Pitt to reopen his 1994 conviction for the murder and sexual assault of six-year-old Samantha Dawn Toole. In 1993, she was found on the bank of the St. John River in the Indiantown area of Saint John’s North end. The girl, who had been sexually assaulted and suffered from trauma on her head, later died from drowning. Although her mother, Gloria, first called 911 at 12:48 P.M., it took the SJPF nearly four hours to respond. Police eventually arrested Pitt, her boyfriend. Gloria testified that when she returned from a night of drinking at 4:00 A.M. Pitt was laundering a comforter from the girl’s bedroom. Both George (who had a troubled upbringing and a record for assaulting women) and Gloria had been drinking. DNA from the victim was found in a bloodstain on the comforter, which also had particles of grass and leaves, suggesting it had been outside. Blood was also found on Pitt’s housecoat, pillows, and other items in the apartment. Pitt, who hid from the police before being arrested, said he had taken off because he was on probation and afraid of being penalized for welfare fraud. He was convicted by a jury after eight hours of deliberation. The chances of an appeal seemed promising when Butch Cogswell, then a senior officer, found a witness whose testimony could have shifted suspicion to Pitt’s friend Steve Miller. That witness changed her story, however, and the NB Court of Appeal dismissed the case (Gary Miller was involved in the appeal). In 1997, the Supreme Court of Canada refused to hear an appeal. In 2004, the Association in Defence of the Wrongfully Convicted became involved. It drew attention to hairs collected from the victim’s body and rape-kit type evidence, which, incredibly, had never been tested. DNA testing had advanced considerably since 1994, and in 2005 Justice Hugh McLellan ordered the testing of the hair samples, the victim’s n
ightgown, and vaginal and rectal swabs. The only DNA evidence detected from swabs of the body was that of the victim (who had been in the river before being discovered). The effort to exonerate Pitt came to a halt, and he remained in penitentiary.15

  The point of the three cases discussed above is not simply to uncover further evidence of the dark side of Saint John, but to indicate the typical case of proven, and alleged, wrongful conviction in our justice system. In each instance, the convicted person was criminally involved or had a police record; they were also poor and known to abuse drugs and alcohol. There may be examples of members of the economic or social elite being mistakenly convicted of murder or other serious crimes in Canada, but they have yet to be documented.

  There are two levels to understanding the claim of a wrongful conviction in the case of Dennis Oland. The first is that he is innocent and that someone else carried out the crime. Given the circumstances of the murder, this person was known to the victim and is out in the community. The second is that there was insufficient evidence to convict Oland, beyond a reasonable doubt, of one of the most serious offences in the Criminal Code, where the penalty can be up to twenty-five years in prison. When people attempt to solve mysteries as armchair detectives, they focus on forensic evidence and other physical clues. Yet in a criminal trial, especially one involving a jury, two factors that are not always quantifiable but hugely important are the perceived credibility and character of the witnesses, especially the defendant. Ultimately, because of legal rules that prohibit jurors from disclosing the reasons behind their verdicts, we will never know what the jury thought of Dennis on the stand. But given the verdict, balanced against the judge’s reminders of reasonable doubt and the burden of proof, it must have found major problems with his testimony on December 1 and 2, 2015, particularly compared to his original police statement. Although many observers considered him confident, sympathetic, and believable in the witness box, the verdict suggests otherwise. The defendant’s changed account of the number of visits to the office, the recollection of the workshop incident as an explanation for the victim’s DNA on his jacket, as well as the more positive spin he placed on the dysfunctional father-son dynamic, ending with the declaration that he “loved” his emotionally abusive father, may have been too much to bear. Perhaps the defence sensed that Oland’s lifestyle and perceived character were also on trial, which might explain its surprise decision to not call family members as witnesses. One important clue is found in a voir dire from November 2015, when Robert McFadden was in the witness box. With the jury absent, the defence objected to the Crown’s attempt to introduce evidence of Dennis Oland’s financial situation from 2009 as irrelevant and even prejudicial to its client because it was possible “evidence of bad character,” and related to motive. In fact, this was a core element of the Crown’s strategy, which was based not simply on Oland’s money problems, but the combination of inconsistent income, a pattern of living beyond his means, and a reliance on a temperamental father, who was also having an affair.

  The outcome raises the possibility that the Oland verdict may have been influenced by reverse class discrimination. The public (and presumably members of juries) can have an aversion to privileged defendants; this appeared to be the case with Americans Lyle and Erik Menéndez, convicted of the 1989 shooting deaths of their wealthy parents. The defence argued that the young men, twenty-one and eighteen at the time of the crime, had been physically and sexually abused by their parents. The motive for murder appeared to be greed, suggested by the brothers’ extravagant lifestyle after the crime. The first trial, broadcast on Court TV, resulted in deadlocked juries, but in 1994 a second prosecution succeeded. In 1998, an appeal court upheld the Menéndez brothers’ life sentence for first-degree murder and conspiracy to commit murder. While interviews indicated that jurors had some sympathy for the young men, their callousness and self-centred desire for a luxurious lifestyle were thought to be factors in the jury’s decision. The jury forewoman called them “spoiled brats.”16

  If the jury verdict is correct, then there are a number of disturbing implications in the Oland case. The first is the obvious one, that Dennis not only committed murder, but killed his own father and the grandfather to his three children. And if the visit to the wharf was an attempt to dispose of incriminating evidence, he used the excuse of visiting his children as a cover story. Two, given that there was no evidence of any weapon at the Far End Corporation office prior to the attack, it must have been brought to the scene, suggesting an element of planning, as investment advisers normally do not carry tools such as hammers on their person. Three, the defendant lied to his wife, his mother, and the rest of his family who have been so public in their claims of his innocence. In fact, if guilty, he spoke to Lisa on his cellphone within minutes of carrying out a brutal crime, then went shopping with her, speaking to his aunt, and sister of the victim, possibly one hour after the attack. Four, he benefited financially after the murder by serving not only as an executor of the victim’s estate, but as a trustee of his estate and director of two of his companies and president of a third. Five, he actually went to work in the very office where the crime had taken place, sitting at a desk just a few feet from where he had brutally murdered his father. Six, knowing since July 7, 2011, that he was the prime suspect in the murder, he not only appeared to live a normal life, he somehow, without having a full-time job, stabilized his financial situation, went on trips, and bought a new boat. Seven, far from keeping a low profile, he helped out at his wife’s new clothing store and socialized with friends, particularly on the river in the summer months. Eight, after he was arrested, it is reasonable to infer that he relied on support either from his mother, who had inherited the interest on a $36-million estate, or from other family members, to fund his legal defence. If the verdict is correct, then we are speaking of a macabre situation where a murderer possibly used his victim’s money to pay for his legal defence. The ninth implication is that loyal and well-meaning family members, friends, and associates have stood by a man who slaughtered his own father in a fit of rage. This includes close relatives who are associated with the Moosehead beer brand. As his character letters indicated, Oland is well thought of, and well connected. How many convicted murderers have senators show up at their sentencing hearing or remain, from behind prison walls, a senior member of the local yacht club—in this case, the same club where the victim’s sailing trophies are on display?

  Any major criminal investigation, and resulting trial, contains a number of difficult, contradictory, and unanswered questions. As criminologist D. Kim Rossmo reminds us, not all crimes, including many murders, can be solved.17 The rest of this chapter will focus on a series of problematic questions or issues, most of them interrelated, that can aid the reader in making up their own mind about the case. A number of these questions are not as relevant if Dennis Oland was not the actual killer.

  The purpose of the July 6, 2011, visit

  Starting at the beginning, what was the purpose of Dennis Oland’s visit to his father’s office? There is no record of him contacting Richard or Maureen Adamson in advance and according to Robert McFadden he only visited four or five times a year, despite working close by. Given his recent trip to England, where he had collected materials related to family history, it is plausible that Dennis, who appeared to leave at least one document in his father’s office, did drop by to discuss genealogy. Maureen’s testimony also supported this explanation. If so, the red bag was used to carry materials (and possibly to carry out the logbook and CDs), although there is no evidence to that effect other than the defendant’s testimony. During the trial the defence entered exhibit (D-16), a copy of a genealogical article entitled “W. O. of Marshfield” which dealt with a William Oland who had lived in Gloucestershire, England, in the eighteenth century. The document, found on the victim’s desk underneath the New York Yacht Club book, was proof for the defence that Dennis had carried family history materials to the scene. The prose
cution was unconvinced.

  The explanation that Dennis visited the Far End Corporation to pick up the island Camp log for his uncle is less convincing. As noted in Justice Walsh’s charge to the jury, the log was an important part of the explanation in Oland’s trial testimony but not in his 2011 statement. It was mentioned only twice in his initial statement (roughly at the one-hour-and-ten-minute point), and the transcript reads as though he was asked to take it home by Maureen Adamson (who did not know he would be visiting) after he arrived at the office. Maureen did testify that she asked Dennis, after he arrived, to take the book with him. Constance Oland told police that at some point Dennis had spoken to Jack Connell about picking up the logbook, but there was no record on court exhibit D-80 (the timeline) of any contact between the two on Dennis’s Cellphone on July 6. (He may have used his home phone or his office line.) Additionally, Adamson left the items with Richard and did not give them to his son when he appeared at the office. The importance of the logbook as a reason for the visit may have been inflated by its usefulness to the defence for showing that its client left the office before the crime occurred.

  According to the Crown, the real purpose of the visit was for Dennis to use a genealogy discussion as a pretext to revisit the “bank of Daddy.” There was absolutely no proof at the trial that the two men discussed financial matters that day. Friends interviewed for The Fifth Estate professed to be ignorant of Dennis’s financial situation, and it also seemed not to be on the radar of family members interviewed by the police. The financial issues behind motive were a real challenge for the defence. One was the figure itself: it was possible, although not entirely fair, to view the defendant as owing more than $700,000 as of July 6, 2011, with a negative cash flow, and ongoing automatic deductions for alimony and child support. Richard had helped his son in the past, but a discussion about money may have triggered an argument. Finally, the fact that Dennis was living beyond his means rather than altering his lifestyle, and downplaying his predicament under cross-examination, affected his credibility, a central factor in any determination of guilt.