Wrongfully convicted Canadian Indian honored in death

But was justice done in the end?

Holding an eagle feather above Donald Marshall's coffin on Monday, Alan Knockwood came to say goodbye to his friend. Knockwood joined hundreds of mourners at Marshall's funeral service, remembering the man whose wrongful murder conviction led to a royal commission on the state of the justice system.

"The eagle is the one who is closest to the Great Spirit," explained Knockwood, who held the feather over the coffin as it was carried into St. Anthony Daniel Roman Catholic Church. "He is also our protector and when I raised the feather up it was to ask him to look after all who came beneath it and to protect Donald on his journey home."

Marshall, sometimes called a reluctant native activist, died at the age of 55 last week after complications linked to a double lung transplant six years ago. He was sentenced to life in prison for the stabbing death of a friend in 1971, but maintained his innocence throughout his 11 years in prison.

His acquittal in 1983 brought sweeping changes to the justice system, which the commission found was plagued by incompetence and racism. Anne Derrick, now a provincial court judge who represented Marshall as his lawyer at the inquiry, said she was able to spend a few hours with him in hospital before he died last Thursday. "He was a man with a lot of depth and a lot of resilience," she said outside the church under a grey sky. "I will never forget him and I feel fortunate to have been his friend and to have gotten to know him as a person."

Derrick said Marshall's wrongful conviction and his court battles over native fishing rights have left a lasting legacy. "He was not a man who sought fame, which he did acquire. But when the fight came to him he would see it to the finish."

Marshall's funeral was attended by judges, MPs, members of the Nova Scotia legislature, Premier Darrell Dexter and Lt.-Gov. Mayann Francis. Shawn Atleo, chief of the Assembly of First Nations, remembered Marshall as a figure who motivated others. "I feel so inspired, like so many others, inspired by a man who knew who he was, where he came from, and for what he believed in," Atleo told the funeral service. "A man who carried himself in a humble and dignified manner. A man who believed in his people."

Rev. Donald MacGillivray said Marshall was not embittered by his wrongful conviction. "Donald, during his years in jail, would have had to be about what he knew to be true, the truth that he was not guilty, his truth had to be his anchor," he said. "Donald, I think, can be an example of what it means to stand for truth, perhaps that will be one of his most important legacies, to be able to stand for what one believes to be true."

Marshall was 17 when he was charged with the violent murder of Sandy Seale, a friend who he met up with while walking through a park in Sydney one night in 1971. He was sentenced to life in prison but maintained his innocence and was eventually acquitted of the stabbing death in 1983. His case became one of the first high-profile wrongful convictions in the country.

The inquiry that followed produced a seven-volume report that found fault with the police, judges, Marshall's original defence lawyers, Crown lawyers and bureaucrats.

Roy Ebsary was eventually convicted of manslaughter in Seale's death and spent a year in jail. [Only a year?? When Marshall served 11?]

Marshall was one of 13 children of Caroline and Donald Marshall Sr., grand chief of the Mi'kmaq nation. Later in life, Marshall was arrested and convicted of violating federal fisheries laws for catching 210 kilograms of eels out of season and without a licence.

In 1999, the Supreme Court of Canada upheld a centuries-old treaty between Mi'kmaq natives and the British Crown in acquitting Marshall of the charges. The ruling also found that natives have the right to make a moderate living by hunting, fishing and gathering. For Marshall, who led the fight with 13 native chiefs, the case represented a final vindication of native claims that ancient treaties still entitle them to fish, hunt and gather independent of government control.

Original report here

More background

"On January 26, 1990, the Royal Commission of Inquiry on the Donald Marshall Jr. Prosecution released its much-anticipated report on Mr. Marshall’s wrongful conviction for murder. (Commissioners’ Report – Findings and Recommendations 1989) For the Mi’kmaq community the most significant finding of the Inquiry’s three years of work (public hearings, roundtables and independent research studies) was the conclusion reached by the Commissioners that Donald Marshall Jr. was "convicted and sent to prison, in part at least, because he was a Native person." The Commissioners described the evidence supporting this “inescapable conclusion” as “persuasive” and said, “That racism played a role in Marshall’s imprisonment is one of the most difficult and disturbing findings this Royal Commission has made.”

On May 28, 1971 Donald Marshall Jr., walking through Sydney’s Wentworth park, met up with Sandy Seale, a Black youth from Whitney Pier. Marshall and Seale were casually acquainted. Proceeding through the Park together they encountered two men who struck up a conversation. One of these men, Roy Ebsary, described by the Commissioners’ Report as “an eccentric and volatile old man with a fetish for knives” with no provocation or warning, fatally stabbed Sandy Seale in the stomach. He died on May 29, 1971. On June 4, 1971, Donald Marshall, only 16 and still living at home on the Membertou reserve was arrested and charged with non-capital murder. The Royal Commission of Inquiry found that the fact that “Marshall was a Native is one reasons why John McIntyre [the Sydney Police Chief heading the Seale murder investigation] singled him out so quickly as the prime suspect without any evidence to support his conclusion.”

Donald Marshall’s journey through the criminal justice process proceeded with breath-taking speed, unthinkable today. Arrested on June 4, 1971, his preliminary inquiry occurred in one day on July 5, 1971 and his trial was heard over only three days from November 2 – 5, 1971. The justice system took only that short time to convict Mr. Marshall, by then just 17, and sentence him to life imprisonment for a murder he did not commit.

Mr. Marshall’s wrongful conviction occurred because of police and prosecutorial misconduct, the incompetence of his defence counsel, perjured testimony, jury bias and judicial error. It took 12 years for his wrongful conviction to be overturned and a total of nearly 20 years to exonerate him because, as the Royal Commission of Inquiry found: “The criminal justice system failed Donald Marshall, Jr. at virtually every turn, from his arrest and wrongful conviction in 1971 up to – and even beyond – his acquittal by the Court of Appeal in 1983.”

Original report here




(And don't forget your ration of Wicked Thoughts for today. Now hosted on Wordpress. If you cannot access it, go to the MIRROR SITE, where you can find out what is going on. During prolonged downtimes, posts will appear on the mirror site instead of the primary site)