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Deacon trial lull of “mental gymnastics”□ Judge guarantees guilty verdict when cautioning jury which version of events to believeLawrence Deacon is buried in the St. James CemeteryEditor’s note: This week we present part two of a three-part story.■A handful of the people executed in Manitoba died protesting their innocence. Almost all were unquestionably guilty, and their refusal to accept responsibility for what they did likely a last act of defiance. In only one case did an obvious and egregious miscarriage of justice occur.The tragic events that ended in the execution of an innocent man started with an anniversary party held on the last day of March 1946. By the time the evening ended, Helen Berard had grown so angry at her husband she twice fled their home. What happened next is in dispute. She said she and Lawrence Deacon, the boyfriend of her husband’s sister, met a street over and flagged down a taxi.The longer she was held by police as a material witness the more Berard remembered. After a few days in custody she told investigators she recalled that shortly after she and Deacon, who she kept referring to as Lome, got into Johnson’s cab, Deacon started touching her. When she told him to stop the two argued and he called her a whore.“I grabbed the door handle to jump out when I saw Lome raise his arm up. I was scared and closed the door after me,” When she looked into the cab “I didn’t see the driver behind the wheel and saw he was lying down on the seat.”After more prodding by her interrogators she agreed that yes, she did recall seeing the murder weapon while she and Deacon were sitting in the backseat of the cab. “I saw something lying behind the driver’s seat on the floor of the taxi and immediately in front of Deacon’s feet. It was a long narrow thing and was wrapped in white paper... I am also sure it was his left arm that was raised when I was getting out of the cab.”At Deacon’s preliminary hearing, Berard changed her account. She now said nothing about a package on the floor of the cab, or seeing a taxi driver slumped over in the front seat, perhaps because for the first time sheCharles Dale Brawntold her story without detectives telling her what to say.She testified that after she left Deacon in the cab she ran towards a spot where streetcars turn, and noticed a second taxi standing about a quarter of a mile away. She moved towards it, and as she got closer noticed its interior light was on.“I had come up behind the car, and I put my hands below the back window. I looked up and I saw this fellow in the front seat lying down and I hollered: ‘What the hell have you done?”’ Asked who she hollered at, she said, “This fellow who was in the back seat. I don’t know who it was. He had a hat on.” But of one thing she was certain - the man was not Deacon.During the preliminary hearing, Berard was asked about the various statements she gave while in custody. How were they obtained? “They were obtained by Manning and Nicholson (her interrogators), and if I didn’t answer the questions, and I said I didn’t know, they said: ‘You must know it was Lome in the taxi. It must have been Lome in the taxi.’” Questioned whether she made the statements voluntarily, she said “No I didn’t, because I wasn’t sure of the story. I knew it couldn’t have been Lome,”While testifying at the preliminary hearing, Berard recanted her earlier written statements, and said she had been coerced into implicating Deacon. The presiding magistrate did not believe her, and committed Deacon to trial. It got underway in late October 1946. All the evidence against him was circumstantial, and other than the various allegations made by Helen Berard, nothing tied him to Johnson’s murder.One of the first to testify was the police officer who found a Department of Veteran’s Affairs memo nearJohnson’s body. Under cross-examination, the constable was asked why he had not said something about the note during the preliminary hearing, particularly in view of the fact it was obvious the memo had been dropped around the time of the killing. His answer: “It slipped my mind.”When David Schwab, the man to whom the memo was addressed, was called he denied its existence - not that it never existed, but that it did not exist when Johnson was murdered. “I destroyed it.” He admitted though, that he had eaten at the Exchange Cafe the day before the cab driver was beaten to death. Ironically, so had Johnson.By the time the last crown witness testified, it was apparent to participants and spectators alike that no physical evidence linked Deacon to the crime, and other than Berard’s statements, nothing else did either. Hopes of an acquittal, however, were dashed during the judge’s direction to jurors.William Major was a former provincial attorney-general with a stern countenance and well-deserved reputation as a harsh judge. He told jurors that if Berard’s statements to the police were true, Deacon was guilty, but if her trial testimony refuting those statements was taken at face value, he was innocent. The judge made sure jurors were clear about which version they should believe.Major rejected the argument advanced by Deacon’s lawyer that “Every bit of real evidence offered against the accused is actually consistent with his innocence”, He said that Berard’s statements to the police were true, and jurors should accept them as such. “As to her subsequent statements, they constitute one of the remarkable exhibitions of mental gymnastics ever displayed in a court of law or elsewhere.”That was good enough for the jury. After about three hours of deliberation they returned a verdict of guilty. Deacon did not flinch as Major, wearing the traditional black death cloth on his head, sentenced him to hang. When the judge stopped speaking, the only sound heard in the hush of the courtroom was a soft moaning from the condemned man’s mother.Deacon’s lawyers immediately filed an appeal. A week after the hearing ended, but before the appellate court announced its decision, two taxi drivers appeared in their offices, saying they had something important to say.Just before dawn on Sept. 16, six weeks before Deacon’s trial started, one of them picked up a woman who smelled strongly of liquor. As she climbed into the back of his cab, the woman asked the driver if she knew who she was. Without prompting she continued, “I’m the chief witness against Deacon.” Deacon, she said, was not guilty, and was never in a cab with her.The woman told the driver that she had a fight with her husband just before Johnson was killed, and when she ran out of her house, she hailed the first cab that came along. “It stopped, and when I got in there was a man in the back with his coat collar turned up and his hat brim down,” After the taxi drove for a bit the man told the driver to stop and made her get out.She started to run from the cab, but when she realized she had no way of getting home she circled back. The taxi was still standing where she had gotten out. By the time she reached it, the mysterious looking passengerwas standing outside the vehicle, and the driver was slumped over in the front seat. Told to ‘beat it’, she did.When the taxi driver listening to the woman’s story stopped at 1215 Parker, a man came out. She asked him to get Joe, but was told that Joe no longer wanted anything to do with her. With that, the man turned and walked back into the house. The driver’s shift was now over, and when he asked where the woman wanted to go and did not get a response, he drove to his company’s office and passed the cab, and its passenger, over to his relief driver.The second man knew nothing of what had just transpired, and drove the woman to the Parker street address she requested. On the way, she told him the same story moments earlier she told his partner. Just before she got out of the car she said “They say Lome killed him, but he didn’t. Lome was not in the car at the time,”Deacon’s lawyers immediately sought permission to bring the new evidence before the province’s appellate court. It denied the request, and voted 3-2 to dismiss Deacon’s appeal. The condemned man’s lawyer had an inkling the vote was not likely to be in favour of his client. Thirty minutes into his presentation, the oldest member of the panel looked up, confused. “Young man, are you appearing for the Crown or the defence?”Because the court of appeal had not been unanimous, Deacon had the right to ask the Supreme Court of Canada for a new trial. One week before the former soldier was to hang, it ruled in his favour. The written statements Helen Berard gave the police should never have been admitted at trial.Conclusion next week ■Dale Brawn practiced law in Shoal Lake in the 1980s before entering graduate school, and is now teaching in the Department of Law and Justice at Laurentian University in Sudbury, ON His father Charles is a resident of Brandon.Sandy Lake Auto Service320 Railway Ave., Sandy Lake, MBM©§ l?[?(§°®™®(o] W®Mlt;sD(§g fee3FINANCING WARRANTY FOR ALL VEHICLES IS AVAILABLE!!!2006 Dodge Caravan 2000 GMC Sierra 1500 4x4Silver, 39,000 kms, cloth, 8 passenger, air,■vith cap, 5.3 L engine, 4 dr., ext. tilt, cruise, pwr. window/locks, CD, am/fm cab, air, tilt, cruise, pwr window/locks, CD,radio. 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Erickson South Mountain Press
Erickson, Manitoba, CA
Sat, Sep 27, 2008
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