Loss and freedom intertwined for 2 New Brunswick men cleared of 1983 murder
Walter Gillespie and Robert Mailman are left to wonder if they will ever see compensation
It has been one week since a judge cleared Walter Gillespie of a murder charge that hung over him for half his 80 years.
But as he looked around his dark, cramped apartment in Saint John this week, Gillespie said he still feels caged by the legal battle that came to define his life.
"It just looks like another jail cell," Gillespie said with a chuckle, his eyes sweeping over brown cardboard boxes stacked in a corner and a few clothes hung on pegs by the entrance.
"Just look at it. Everything's just crowded. You can't move in there."
Last Thursday, New Brunswick Court of King's Bench Chief Justice Tracey DeWare acquitted Gillespie and his friend Robert Mailman, 76, of the 1983 murder of George Gilman Leeman in Saint John. The pair served lengthy prison sentences after their 1984 convictions, but the federal justice minister last month overturned those convictions after new evidence came to light.
DeWare declared their case a miscarriage of justice.
Robert
Mailman and Walter Gillespie spoke to reporters last week after being
acquitted in the 1983 murder of George Gillman Leeman in Saint John. A
submission to the court from Innocence Canada highlighted a series of
failings in the prosecution of the two men. (Michael Hawkins/The Canadian Press)
The Canadian Press interviewed Gillespie in his apartment Tuesday, while Mailman, who has terminal liver cancer, joined the exchange by phone.
Gillespie, who had been living in a halfway house as a condition of his parole, moved into the $800-a-month former hotel room the day after he was declared innocent, bringing his life's possessions in five cardboard boxes, two small duffel bags and a white plastic bag for his toiletries.
He has taken up painting, and his works add a splash of colour to his new apartment. Mailman gave his friend a white tea kettle and a set of white, fluffy towels as a housewarming gift.
While Gillespie, known to friends as Wally, can find humour in his spartan living situation, his friend is angry.
"Wally shouldn't have to come out of the prison ... and to a halfway house all them years, only to go into a place that's even worse than he left behind. It's as simple as that," Mailman said.
Robert
Mailman, left, now has terminal cancer and said he has missed many of
the milestones of his family's life while he's been behind bars. (Michael Hawkins/The Canadian Press)
For nearly four decades, Gillespie and Mailman single-mindedly worked toward one goal: proving their innocence. Gillespie served 21 years of his life sentence in prison, and Mailman served 18 years.
After they were released on parole, the two men would meet up every day at a Saint John coffee shop to go over their case.
"He's very passionate," Gillespie said of his friend. "Before he got sick he used to dig open transcripts 24-7, all the time — just never gave up on it."
Do you not think after 40 years of pain and suffering ... after what they've done to me and Wally ... do you not think we should be compensated?
- Robert Mailman
Before Innocence Canada, an organization that fights for the wrongfully convicted, took up their case, Gillespie said he would use poker winnings to pay for documents — the courts charge $1.75 a page for copies — and other legal procedures.
While the two men are now free, they said they still feel marked by the 40 years spent under a cloud as convicted murderers. That period "is going to be in our system forever," Gillespie said.
Mailman, whose cancer has left him a shadow of his former self, said he wasn't there when his grandchildren were born or when they began school.
"I never met my great-grandchildren, and I refuse to see them now because of the shape I'm in," he said over the phone.
"You've seen a picture of me. That's not something I want them to remember — the picture of me."
Mailman's two sons died while he was in prison. "I can never get them back," he said in the interview. "I know they're probably looking down, seeing this and smiling, but I can't talk to them to say we finally won. ... My biggest loss is my sons."
Both men seeking apology
A submission to the court from Innocence Canada highlighted a series of failings in the prosecution of Gillespie and Mailman, including recanted testimony by key witnesses, evidence withheld from the defence, substandard forensic evidence and a disregard for the men's solid alibi.
Gillespie said he wanted to give federal Justice Minister Arif Virani "many, many thanks" for overturning their convictions, but both men want an apology from the Crown and the Saint John police. And time is running out.
"It's good, a relief that they found us innocent after 40 years," Mailman said. "But it was certainly overshadowed by the
fact that now I'm going to die."
They both fear the police and the province will stall until they have died, so the case can be shelved with no compensation awarded.
Provincial Justice Minister Ted Flemming has not commented since the court acquitted the men, and the police force has said it is awaiting a final report on the case from the federal Justice Department.
"Do you not think after 40 years of pain and suffering — my boys are in the grave, I lost my wife, I lost my freedom — after what they've done to me and Wally," Mailman said, "do you not think we should be compensated?"
David Amos
These men should mention my name to Jerome Kennedy and James Lockyer ASAP
Wilbur Ross
Reply to Wilbur Ross
Reply to Roger devry
Saint John men acquitted of murder almost 40 years after wrongful conviction
Robert Mailman, Walter Gillespie exonerated of 2nd-degree murder charges
Vindication has come for two Saint John men who maintained for 40 years that they were wrongly convicted of murdering another man.
Robert Mailman and Walter Gillespie walked out of the Saint John courthouse on Thursday as innocent men after Court of King's Bench Chief Justice Tracey DeWare ruled they were not guilty of the 1983 murder of George Leeman.
"I feel good," was Gillespie's response outside the courthouse when asked how he felt.
Mailman, who is thin and has been weakened by terminal cancer, declined to speak on Thursday but Ron Dalton, co-president of Innocence Canada who took up their case, spoke to reporters on his behalf.
"They've been 40 years waiting for this. As you can imagine, they're glad this day has finally come," said Dalton, who has also been exonerated for a murder he didn't commit.
"[Robert] wants to express his appreciation to his best buddy, Wally, who stayed solid for 40 years when he could have walked away any time and just pointed the finger at him."
Both maintained innocence
Gillespie and Mailman were originally convicted of murdering Leeman in May 1984 and were sentenced to life in prison, with no chance of parole, for 18 years.
The two always maintained their innocence.
Following unsuccessful appeals and efforts to get their case reviewed, federal Justice Minister Arif Virani announced last month he was overturning the convictions and granting Mailman and Gillespie new trials. Virani said new information led him to believe "a miscarriage of justice likely occurred."
Thursday was the first court appearance for Mailman, 76, and Gillespie, 80.
At the outset of the hearing, DeWare read out the charges the two faced in connection to the murder of Leeman and asked them how they planned to plead.
"Not guilty," said Mailman, in a frail voice, followed by Gillespie, who echoed the same but in a heavier tone.
Crown prosecutor Karen Lee then informed the court she had no evidence to present.
Given that, DeWare said she had no choice but to find them not guilty of the murder charges they originally faced 40 years ago.
"Mr. Mailman and Mr. Gillespie entered this courtroom today innocent in the eyes of the law as a result of Minister Virani's order," DeWare said. "They may leave the court today with that presumption of innocence maintained and forever confirmed by the fact they have been found not guilty of this charge."
"It is most regretful it has taken 40 years for this day to come."
Case against them 'a disgrace', says lawyer
Innocence Canada, an organization that advocates for and represents those wrongfully convicted, took on the men's case in 2018 and filed the request for a review by the Department of Justice.
Organization lawyers James Lockyer and Jerome Kennedy appeared in court Thursday, and they described problems with the case against Mailman and Gillespie.
Innocence
Canada lawyers Jerome Kennedy and James Lockyer represented Mailman and
Gillespie and described the issues with the criminal case originally
brought against the two men. (Graham Thompson/CBC)
They said those problems included failures by either the Saint John Police Force or Crown prosecutors to disclose all the information they had available to them ahead of the two men's trial.
"If full disclosure would be made at their trial, it would have been abundantly obvious that the only two Crown witnesses who said anything to implicate either of these men in the murder was not just unreliable, but false," Lockyer said.
The witnesses, who testified to having seen Mailman and Gillespie commit the murder, later recanted their testimony, saying they lied while on the stand.
Meanwhile, new information not uncovered in the original investigation helped prove the alibi that placed Mailman and Gillespie away from the scene of the crime.
"The Saint John police have a lot to answer for in my view," Lockyer said. "This case was a disgrace."
In a news release issued after DeWare's ruling, the Saint John Police Force said in order to better understand Virani's determination that a miscarriage of justice likely occurred, it will be seeking the final results of the Department of Justice's review of the case, and the rationale that led to Thursday's outcome.
"While we respect the judicial process, we are deeply concerned with the impact it may have on all parties involved," the police force said in its statement.
"We remain dedicated to upholding the highest standards of justice and will continue to work diligently to do so."
What comes next
Lockyer said the issues in this case mirror those of Erin Walsh, another man who was wrongfully convicted of murder in Saint John and later exonerated with help from Innocence Canada.
Lockyer said the next best steps would be to hold a public inquiry, or for his team to be allowed to work with New Brunswick's attorney general to identify other similar cases.
"Because I've no doubt they're out there," he said.
As for any compensation for the two men, Kennedy said it's too soon to say what might happen.
"Today is just an opportunity for Wally and Bobby, especially having regard to Bobby's health, that he can finally say, 'I told everyone I was innocent. No one listened and yet today here I am,'" Kennedy said.
While Mailman got out of prison after 18 years and Gillespie after 21, both men had been on parole, subject to strict conditions that could send them back to prison if broken.
Dalton said Mailman was diagnosed in November with terminal cancer and at the time given about three months to live.
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Saturday 23 December 2023
Innocence Canada
Innocence Canada struggling for funding for wrongfully convicted cases
'With reduced funding, it's going to take us longer,' says Ronald Dalton
A Newfoundland man who helps free the wrongfully convicted says his organization is struggling to find funding and could be in jeopardy.
Ronald Dalton was convicted of murdering his wife in 1989 and spent eight years in prison before he was found not guilty in 2000. Now, Dalton is the co-president of Innocence Canada.
- Jury frees Ronald Dalton
- N.L. compensates Dalton for 8-year prison wait
- Compensation doesn't buy back lost years: Dalton
He said with less money, the organization will struggle to review cases efficiently and help those who need it.
"We're not closing down, but it means that with reduced funding, it's going to take us longer," said Dalton on CBC Radio's St. John's Morning Show.
"When cases come in the door, we have to tell people that it could be 10 or 12 years before we can get to your case ... I'm always frustrated with how long it takes us to do cases, in any event, but this is going to slow us down even more."
I'm always frustrated with how long it takes us to do cases, in any event, but this is going to slow us down even more.
- Ronald Dalton
He said Innocence Canada is currently reviewing 85 files, and the group believes 16 of those are wrongful convictions.
Dalton said it is always a struggle for non-profit organizations to find funding, but now a donation of $1 million received from a retired judge in Ontario has dried up, making things more difficult.
"He just sent us a personal cheque one day for a million bucks and said 'you're doing nice work, we like what you're doing,'" he said.
"That's helped us do more work than we were able to do previously, but that was eight years ago, so that's trickling out, that funding."
Played significant role
Despite the struggle for funding, Dalton said the group has been able to do good work helping to overturn wrongful convictions.
"We've been around for 23 years now, there's been 26 exonerations in Canada and we've been involved in 21 of those," he said.
"We've played a pretty significant role in correcting some of those mistakes."
Innocence Canada receives significant funding from the Law Foundation of Ontario, and Dalton estimates the group gets $3.5 million a year in pro bono work from lawyers.
"It takes a lot of time to go through transcripts from 10, 15, 20-year-old cases and sometimes there's investigative work [that] has to be done, there's DNA analysis sometimes when we're lucky enough to have that evidence … it all costs money," he said.
But, Dalton said there's too much left to be done to give up.
"There's so much work to do and we know that there's people sitting around in prison who don't belong there, so you can't walk away from those cases."
New trial granted for 2 N.B. men convicted of second-degree murder in 1984
Robert Mailman and Walter Gillespie were sentenced to life in prison for killing George Leaman
A new trial has been granted to two New Brunswick men convicted of second-degree murder in 1984.
Justice Minister Arif Virani announced Friday that Robert Mailman and Walter Gillespie would be given a new trial because, "there is a reasonable basis to conclude that a miscarriage of justice likely occurred," according to a statement released by the Department of Justice.
"It's the best Christmas present I'll have this year for sure," said Ron Dalton, co-president of Innocence Canada, a non-profit dedicated to probing wrongful conviction cases.
Innocence Canada has been working with Mailman and Gillespie for the past 20 years. The two men were sentenced to life imprisonment with no eligibility for parole for 18 years for the killing of George Gilman Leaman, a plumber in Saint John.
Mailman and Gillespie's appeals to the Court of Appeal of New Brunswick were dismissed in 1988. In 1994, Gillespie sought and was denied leave to appeal to the Supreme Court of Canada.
The pair spent 18 years in prison, and both are now on parole and out of custody. They submitted their application for criminal conviction review in December 2019.
According to the press release, new and significant information, that was not submitted to the courts at the time of the pair's trials for appeal, calls into question the fairness of the process.
Ron Dalton, left, stands with Walter Gillespie, who is now awaiting a new trial. (Submitted by Ron Dalton)
"In this case, there was some misconduct in terms of testimony. There were alternate and better suspects that were never properly investigated. There was a lack of disclosure. All kinds of things that played into the errors that were made," said Dalton.
"It's very rare in any of these wrongful conviction cases that it's a single factor, one mistake alone. Normally, it doesn't lead to a wrongful conviction. It's usually a compounding of errors."
The case
Leaman was killed on Nov. 28, 1983. He was believed to be beaten to death, doused in gasoline and set on fire. His body was found in Rockwood Park by a jogger. Saint John police would go on to charge Mailman and Gillespie.
"Basically, these two gentlemen had a pretty solid alibi. They were not in the city of Saint John at the time this homicide happened. And we were able to document that 40 years later," said Dalton.
Robert Mailman spent 18 years in prison after being convicted of second-degree murder. (Submitted by Ron Dalton)
This case is personal for Dalton, who was wrongfully convicted and spent time in the same prison as Mailman and Gillespie.
"When my own case was resolved 10 years later, I knew there was other people like Bobby and Wally still left behind, and I looked around to find a way to try and help those people," said Dalton.
"It really gives me some satisfaction after … 39 years since I met them, to see their case finally overturned and have them returned to the presumption of innocence that we all enjoy. "
Ronald
Dalton, who spent eight and a half years in prison after being
wrongfully convicted of murder, is photographed standing in front of
photos of other people who have suffered a wrongful conviction. (The Canadian Press)
Gillespie is now 80 years old, and Mailman is 76. Dalton says Mailman has terminal cancer and he hopes Mailman will get the chance to see the trial happen.
"The onus is now on the crown to prove to a court that he murdered someone rather than for the last 40 years, the onus has been on Mr. Mailman and Mr. Gillespie to prove their innocence," said Dalton.
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Articling Student, Stacey Seward
This short film by Canadian Filmmaker Sammy Ray Welsh features Innocence Canada client Anthony Hanemaayer, Innocence Canada's Co-President and Exoneree Ron Dalton, Innocence Canada pro-bono counsels Marlys Edwardh and James Lockyer, University of Toronto Professor Kent Roach and Justice Fred Kaufman Commissioner of the Guy Paul Morin Inquiry.
You can watch the video here.
Guy Paul Morin
In 1995, after two trials and an appeal, Guy Paul Morin’s wrongful conviction was finally overturned thanks to irrefutable DNA evidence. Guy Paul Morin’s experience inspired a handful of individuals to create the Association in Defence of the Wrongly Convicted (AIDWYC), now Innocence Canada.
You can watch Guy Paul Morin speak to The Fifth Estate about his wrongful conviction in Beyond a Shadow of a Doubt.
In addition, the case of Guy Paul Morin was examined by journalist Kathy Kenzora in a three-part series of the podcast 1995.
Ron Dalton
Ron Dalton was convicted on December 15, 1989 for the murder of his wife, Brenda Dalton, who died on August 16, 1988 in Gander, Newfoundland. He was found guilty of second degree murder and sentenced to life imprisonment with no possibility of parole for a minimum of ten years. Ron waited eight years in prison to have his appeal heard and it took twelve years for the truth to come out, that no crime was committed and Ron was an innocent man.
Ron tells his story on Falsely Accused: Ronald Dalton's Struggle and how his wrongful conviction changed his and his family’s life forever.
David Milgaard
David Milgaard’s case is one of the most well-known wrongful convictions in Canadian history. David was 16 when he was arrested for the murder of Gail Miller. David would ultimately spend almost 23 years in prison and an additional five years waiting for the evidence to clear his name. On July 18, 1997, DNA evidence confirmed that David was innocent and on November 22, 1999, Larry Fisher, who lived in the area, was convicted of Gail Miller’s rape and murder.
The Fifth Estate investigated the truth behind Gail Miller's murder and David’s wrongful conviction in the documentary, Who Killed Gail Miller?.
Clayton Johnson
Clayton Johnson’s life was shattered on February 20, 1989. While Clayton was on his way to work, his wife, Janice, fell down a flight of stairs, hit her head, lost consciousness and died. At first, police agreed that Janice’s death was the result of an accidental but fatal fall. This finding was supported by the doctor who performed Janice’s initial autopsy. However, the investigation was reopened in the summer of 1989, and Clayton was charged, and ultimately convicted of murdering Janice.
In 2002, Clayton’s wrongful conviction was finally overturned. His application was supported by 22 forensic experts who found that Janice’s death was caused by an accidental fall.
You can learn more about Clayton’s wrongful conviction by watching The Fifth Estate’s Tide of Suspicion.
Steven Truscott
The name Steven Truscott is synonymous with wrongful conviction. Steven’s wrongful conviction is Canada's most famous criminal case involving a minor. Sentenced to death by hanging at the age of 14, Steven's conviction featured many of the systemic factors that are now known to lead to a wrongful conviction: tunnel vision, faulty forensics, unreliable witnesses, and a lack of disclosure.
In 2000, Steven spoke of his journey on The Fifth Estate's His Word Against History.
William Mullins-Johnson
William “Bill” Mullins-Johnson’s life was shattered when his 4-year-old niece, Valin, died of natural causes, and he was wrongly convicted of her murder. After many painful years, it would finally be shown that Bill and his entire family were victims of the criminal justice system and the flawed evidence of Charles Smith who was, at the time, revered as a paediatric forensic pathologist at Toronto’s Hospital for Sick Children. Bill’s application was supported by multiple forensic experts who agreed that Valin was not murdered.
The Fifth Estate's, A Death in the Family, explores Bill’s wrongful conviction.
Robert Baltovich
In 1992, Robert “Rob” Baltovich was wrongly convicted of murdering his girlfriend, Elizabeth Bain. Rob maintained his innocence throughout his trial and 8-year sentence, and his wrongful conviction was finally overturned in 2008. Elizabeth’s body has never been found and the real killer has yet to be brought to justice.
In 2019, Rob spoke about his wrongful conviction on the Murder Was The Case podcast.
Maria Shepherd
In 1991 Maria Shepherd was a 21-year-old mother, with two young children and pregnant with her third child when she was charged with the murder of her three-and-a-half-year-old step-daughter, Kasandra. An integral part of Maria’s conviction was the flawed evidence of Charles Smith who was, at the time, revered as a paediatric forensic pathologist at Toronto’s Hospital for Sick Children. Faced with the prospect of a lengthy trial and sentence, as well as losing access to her remaining children, Maria made the most difficult decision of her life and pled guilty in order to keep her family together.
Maria shared her story and the impact of her wrongful conviction on CTV’s The Social.
Glen Assoun
In 1999 Glen Assoun was wrongfully convicted of murdering his girlfriend, Brenda Way. Glen spent the next 17 years in prison relentlessly fighting to prove his innocence. His wrongful conviction was overturned in 2019 and Innocence Canada is honoured to count Glen as our 23rd exoneree.
Glen's story was profiled on CTV's W5 Railroaded.
Also, in Season 7 of the CBC podcast Uncover, reporter Tim Bousquet investigates the wrongful conviction of Glen Assoun. The podcast recounts Glen's trial and appeal, his experience in prison, the investigation and destruction of evidence.
Brian Anderson
In 1974, 19-year-old Brian Anderson, from Winnipeg, was convicted of murder. Forty-five years later Brian continues to assert his innocence. In early January 2019, Innocence Canada submitted a s.696.1 application for Ministerial Review to the Criminal Convictions Review Group (CCRG). The application consisted of 9 parts, 34 volumes and 7,000 pages of documentation. A second application was submitted on behalf of Brian’s co-accused, Allan Woodhouse, in February 2020.
In the W5 documentary, Breaking Free, correspondent Avery Haines investigates Brian Anderson's conviction through the lens of Innocence Canada's application to the Minister of Justice.
Crown Prosecutor George Dangerfield
George Dangerfield holds the unfortunate title of being the Crown prosecutor responsible for the most wrongful convictions in Canada. Four that have been proven include Thomas Sophonow, James Driskell, Kyle Unger and Frank Ostrowski, and two more, Brian Anderson and Allan Woodhouse, await a decision from the Minister of Justice.
How could one man be responsible for sending at least six innocent men to prison? Find out on The Fifth Estate’s The Wrong Man.
Wrongful Conviction social media campaign in collaboration with Warner Bros. Canada
The
film Just Mercy chronicles the real-life story of Bryan Stevenson, an
American wrongful conviction advocate, and stars Michael B. Jordan, Brie
Larson and Jamie Foxx. In December 2019 Warner Bros. Canada and
Innocence Canada launched a digital campaign which features the Just
Mercy cast and wrongful conviction advocate George Stroumboulopoulos, in
a series of videos which raise awareness about wrongful conviction in
Canada.
You can watch the videos here: Michael B. Jordan, Brie Larson, Bryan Stevenson and Jamie Foxx.
R. v. Mailman; R. v. Gillespie, (1988) 84 N.B.R.(2d) 439 (CA)
| Judge | Angers, Hoyt and Ryan, JJ.A. |
| Court | Court of Appeal (New Brunswick) |
| Case Date | February 10, 1988 |
| Jurisdiction | New Brunswick |
| Citations | (1988), 84 N.B.R.(2d) 439 (CA) |
R. v. Mailman (1988), 84 N.B.R.(2d) 439 (CA);
84 R.N.-B.(2e) 439; 214 A.P.R. 439
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
....................
Walter Gillespie (appellant) v. Her Majesty the Queen (respondent)
(128/84/CA)
Robert Mailman (appellant) v. Her Majesty the Queen (respondent)
(132/84/CA)
Indexed As: R. v. Mailman; R. v. Gillespie
New Brunswick Court of Appeal
Angers, Hoyt and Ryan, JJ.A.
February 10, 1988.
Summary:
Two accused convicted of murder applied under s. 610(1)(b) of the Criminal Code and rule 63.20(1) of the Rules of Court (N.B.) to adduce fresh evidence. The evidence was a purported admission by a witness to the murder that he falsely testified that he saw the accused commit the murder.
The New Brunswick Court of Appeal dismissed the application, because the fresh evidence was not credible in the sense that it was reasonably capable of belief.
Practice - Topic 9031
Appeals - Evidence on appeal - Admission of new evidence - The New Brunswick Court of Appeal stated the four prerequisites to the admission of fresh evidence: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this general principle will not be applied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Cases Noticed:
R. v. Palmer and Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (S.C.C.), appld. [para. 5].
Statutes Noticed:
Criminal Code, R.S.C. 1970, c. C-34, sect. 610(1)(b) [para. 3].
Rules of Court (N.B.), rule 63.20(1) [para. 3].
Counsel:
Henrik G. Toning, for Walter Gillespie;
W. Stephen Wood, for the Crown;
A. Wilber MacLeod, for Robert Mailman.
This application was heard on March 12, 1987, before Angers, Hoyt and Ryan, JJ.A., of the New Brunswick Court of Appeal.
On February 10, 1988, Ryan, J.A., delivered the following judgment for the Court of Appeal.
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