Stolen Life (52 page)

The trial of Yvonne Johnson and Ernest Jensen began on 4 March 1991 in the Wetaskiwin Court of Queen’s Bench before the Honourable Madame Justice Nina L. Foster—who had already tried Dwayne—and a selected jury. The charge against the two remained first-degree murder to which they pleaded “Not Guilty.” The Crown’s case against
Yvonne rested primarily on the testimony of Lyle Schmidt and Shirley Anne Salmon, though they were both, to state it in the acceptable legal language of the defence lawyers, witnesses whose credibility “was greatly at issue.”

Instead of pleading “Not Guilty” to one of the severest charges in the Canadian criminal code, why did Yvonne and Ernie not plead “Guilty,” as Dwayne and Shirley Anne had, to a lesser charge such as manslaughter or even second-degree murder? According to Brian Beresh, he and Ernie’s defence lawyer, Glen Allen, had several discussions with Crown Prosecutor Hill and Judge Foster to accept a plea of “Guilty” to manslaughter. But Beresh remembers Hill as having “a punitive attitude” towards both the accused, and towards Yvonne in particular. He recalls: “The judge was on our side in this matter but Hill would not budge.” And without his agreement no change of charge was possible.

Hill was also adamant that Yvonne and Ernie’s trial must be by jury as well as judge. It seemed to Beresh that Hill felt that such a brutal crime—beating to death an almost complete stranger—should “be judged by the community.” Beresh and Glen Allen had at first elected to go with a judge and jury because, like all defence lawyers, they were apprehensive about having a hard-nosed judge preside over the trial. But when they learned that Judge Foster was to preside, a magistrate well known for her fairness and understanding, they requested a re-election to a trial by judge only. But Hill “would not back off” and allow re-election.

The defence lawyers had good reason to be apprehensive about defending such a widely discussed murder before a Wetaskiwin district jury. One of the accused was Native, and racial and social difficulties with the Hobbema reserves were well known. Also, Native people rarely accept jury duty, especially when a Native person is one of the accused. Generally speaking, they do not wish to sit in judgement on one of their own people, nor do they like to be seen as cooperting with a legal system that is so often pitted against them. To add to this, the area, which includes the densely populated, farming- and oil-based communities of Leduc, Camrose, Thorsby, Ponaka, and many others, is seen as deeply conservative, and a Bible belt of Christian practice and morality.

At every turn, then, the letter of the law as enforced by the Prosecutor, seemed to leave Yvonne no choice.

Besides the trauma of the trial itself, Yvonne faced several difficulties. By March 1991 she had been in prison for eighteen months. She writes: “I saw Xmas activities through the window bars of Remand for two years. I watched the people moving on the streets in dress for Klondike days. I lived through a strike there.” Her three children were living together in one foster family, and if the charge had been minor, she would have simply said, “Yes. Guilty,” and hidden and endured until she was let out.

As a child she had been trained and beaten to play the shadow, to be a rubber doll or an emotionless statue and take everything done to her; or to cry and so perhaps avoid somehow whatever brutal thing was happening to her. As an adult she had sometimes tried to evade problems either by fighting physically, with rage the only acceptable emotion, or by running away, or by hiding behind a bottle and all “the false bullshit and dreams” she could convince herself into. In short, from her cell in the Remand Centre she had come to consider the first twenty-seven years of her life to have been one jagged sequence of “ducking, hiding, dodging, diving, lying, fighting, running.”

But none of these strategies was possible now. She would be taken to Wetaskiwin in chains—walk or be carried, it made little difference to officials—and the rest of her life would be decided for her.

The question remained: why not leave the Edmonton Remand Centre dead? Perhaps it was born-again Christianity, the moments of consolation she found in being convinced she was “saved.” “Christianity,” she would write later, “fooled me so well in prison for a while. It saved me from facing a lot of my reality.”

But there was something more: her looming past which she could not yet order in her mind, nor speak of in any sequence of words because she did not yet know how to turn towards it; and if she could have so turned, it would have been impossible for her yet to face. Nevertheless it was there, and a small articulation of it began in the image of a poem she wrote on 16 June 1990:

In April 1993, I first talked to Brian Beresh in Edmonton several times on the telephone; he was efficiently courteous and professional, he returned my calls, he invited me to meet him in his office and gave me various boxes he had, full of the court records. At that time, the case was still before the Alberta Court of Appeal and, as he said, the decision was taking very long. But he would be happy to talk to me about it; it was, he said, “one of the saddest cases I’ve ever had.”

It stands in the court record that Beresh requested that Yvonne’s trial be severed from Ernie’s, but Judge Foster’s first ruling in the trial was: “I am not convinced that there is a need for severance. I will deal with that problem when it arises.” As Beresh explained to me, severance is very difficult to get in cases where two persons are accused of the same crime. The law generally holds they should be tried together. Beresh also applied for a change of venue, largely due to the “emotive” language used by the local press, and that request also was rejected. Beresh then decided that his trial strategy would be to call no witnesses whatever: his defence would consist of his cross-examination of Crown witnesses.

As Beresh indicated to me later, he had an “ethical obligation” not to call witnesses who he thought might prove to be “unreliable.” There are two different rules of professional conduct that he may be hinting at here: one is the “ethical” rule that you cannot call a witness who you believe will not tell the truth; the other is a rule of good practice, which is not to call a witness if you don’t know what he will say, or how he will stand up to cross-examination.

“I had lots of good reasons,” Beresh insists, and so no one was called to the stand to testify on Yvonne’s behalf, or to challenge or contradict
any of the statements made about her and her actions. Nor could she testify herself. Like her ancestor Big Bear at his trial for treason-felony in 1885, she did not speak a word in her own defence.

When I asked Beresh why he had not put Yvonne on the stand, he gave me two reasons. The first was that the two co-accused “agreed that neither would testify.”

It is conventional wisdom, in trials with co-accused, that there is nothing a Crown attorney likes better than to have the two defendants pointing a finger at each other. Good legal advice would involve advising your clients of the fact that they could sink each other—either because their memories vary, or because they may implicate each other by finger-pointing on the stand. Unless their stories are congruent or mutually supportive, they can have a negative effect on the jury. Given the confusion and violence in that basement room, Yvonne and Ernie might remember things quite differently. And from his erratic comments in the cell shot, there was no telling what Ernie might say on the stand.

The second reason Beresh gave me for not wanting Yvonne to testify was “Yvonne does not present well, [she] does not look too good.”

Yvonne herself says that at the time of the trial, “I was just totally shut down.” Even in June 1997, she wrote of her reactions at that time in the third person.

It seems quite possible that a Wetaskiwin jury would have been unsympathetic to the kind of woman she presented herself as at the trial.

In the end, Beresh said, a court decision depends on what the jury accepts. And the jury in this case was “mostly White men, local people.” In fact, they were all White, nine of them men.

The jury of twelve Wetaskiwin Judicial District citizens retired to deliberate at 11:53 a.m. on 19 March; they returned to the courtroom at
1:42 p.m. on 20 March. Despite all defence cross-examination to the contrary, and despite Brian Beresh’s concluding address, in which he emphasized that there was no credible evidence of intent to kill on Yvonne’s part, and no evidence linking her to the injuries that caused Skwarok’s death, the jury found Lyle Schmidt and Shirley Anne Salmon most believable witnesses. They also ignored Beresh’s assertion that Yvonne could be guilty of nothing worse than manslaughter. Yvonne remembers:

Throughout the trial, one source of support for Yvonne had been Cecilia and other family members who sat in court every day. On 21 March 1991
The Edmonton Journal
reported: “Two relatives of Yvonne Johnson ran from a Wetaskiwin courtroom in tears after a jury convicted her of first-degree murder […]. Johnson wiped away tears but remained relatively composed after the verdict and sentence.”