Stolen Life (67 page)

Beyond the contradictions already noted between cell-shot and “star witness” testimony, at one point in the cell shot Dwayne flatly contradicted what Lyle and Shirley Anne said about Yvonne’s action in the possible sexual assault:

The jury did not hear this contradiction because on 8 March 1991, following a request from Glen Allen, the cell-shot evidence was ruled inadmissible by Judge Foster. She stated that, after Ernie Jensen was arrested, “Corporal Bradley was unhappy with the results of the interview [with him], and he arranged for Constable Jones to do an undercover operation […]. No court order was obtained […]. Jones persistently […] and actively attempted to elicit information from the accused […]. This undercover operation obviously and admittedly fails [as] acceptable police conduct […]. This, in my view, is a most unsatisfactory way to interview a person facing a charge of first-degree murder […]. The admission of these tapes as evidence would bring the administration of justice into disrepute. I therefore order their exclusion pursuant to Section 24(2) of the Charter.”

Therefore, though Beresh worked hard to prove that Lyle’s testimony was badly compromised by its factual errors and by his possible rape of the accused, the jury was not presented with direct alternative statements to some of Lyle’s most damaging testimony. Nor, apparently,
was the jury at all influenced by defence counsel’s main argument that there was no evidence presented to prove Yvonne had, or could have, formed an intent to commit murder, though by calling no witnesses he had the right to address it last. Late in the afternoon of 18 March, he ended by exhorting them, “The test of ‘beyond a reasonable doubt’ [is] simply saying, Are you sure. Are you sure […]. And I ask that you conclude Miss Johnson’s involvement in this case is nothing beyond that of culpability for manslaughter. And that, quite frankly, is the verdict I request you bring back. Thank you.”

But, despite anything Brian Beresh said, after Shirley Anne Salmon’s and Lyle Schmidt’s contradictory testimonies, the jury in its collective wisdom “was sure” about Yvonne. It would seem every member was completely convinced by Crown Prosecutor Hill’s outline of Chuck’s death, which he based solely on Shirley Anne’s testimony:

But perhaps, even more than his summary of the case, it was the particular rhetoric of Hill’s address that overwhelmed the jury with his argument against Yvonne. She remembers the repetition of his words:
“these
people … are very different from you and me,” and then repeating “these two … these two” while his long arm and pointing finger stabbed across the courtroom from the jury benches to the prisoner’s box: the sound, the tone of
“these
people,” remain branded into her memory.

In any case, a decision was reached in short order. At 1:42 p.m., on 20 March 1991, the nine men and three women from the judicial district of Wetaskiwin, chosen from the Sheriff’s list of some three hundred, returned to the courtroom, and the foreman, a farmer from nearby Leduc, stated their verdict.

Court Clerk: Your verdict as … the court hath recorded it is for Yvonne Johnson guilty as charged [first-degree murder]. For Ernest Jensen guilty of second-degree. Do you all agree?

Peter Kopp: Yes.

Janet Sprague: Yes.

Trevor Rosland: Yes.

Finn Oleson: Yes.

Ralph Berquist: Yes.

Lorne Jobs: Yes.

James Schnepf: Yes.

Allen Walkey: Yes.

Brenda Stadler: Yes.

Ray Kuchnerick: Yes.

Dale Sherwood: Yes.

Bonnie Schwartz: Yes.

It was 16 September 1993, and Yvonne and I were circling through her life, as we had so often done. She had begun to tell me the on-going story of her lives and deaths in courtrooms because the month before the Alberta Court of Appeal had finally ruled on her appeal of her sentence of first-degree murder.

She gave me a copy of the thirty-four-page ruling. In it, Appeal Court Madame Justice Mary M. Hetherington wrote that several of Brian Beresh’s arguments were “without merit.” Then she analysed the entire case to refute his major argument that the sentence of “first-degree murder was unreasonable,” and she did so by depending solely on the evidence provided by Shirley Anne Salmon and Lyle Schmidt. She did not, at any point, raise a question about the credibility of that evidence nor the contradictions it contained. And finally, after discussing various relevant details of criminal law, including whether the trial judge had properly instructed the jury regarding Yvonne’s level of intoxication, she ruled that “no substantial wrong or miscarriage of justice has occurred in this case.… [Therefore] I would dismiss Johnson’s appeal.”

And the two other justices—Joseph Stratton and Ellen Picard—signed her ruling, “I concur.”

The three Appeal Court justices accepted the evidence of Dr. Dowling, the forensic expert, that the main cause of death was strangulation. They also accepted Shirley Anne’s testimony that Yvonne had pulled on the ligature cord for ten seconds. However, they completely disregarded his evidence that “for death to result from ligature strangulation, pressure would have to be applied for three to five minutes.” In other words, Judge Hetherington accepted that Yvonne participated in using the ligature on Chuck, but ignored the evidence that ten seconds could not possibly have killed him. As Clayton Ruby, one of Canada’s most respected criminal lawyers, said of this Appeal Court judment, “I think this is a shocking ruling, and an outrageous miscarriage of justice.” He said that in accepting one part of the evidence as significant but seemingly ignoring the other, it ignored crucial evidence and the weaknesses of the Crown’s case.

Nevertheless, in such a situation, only an appeal to the Supreme Court of Canada remained. And since Yvonne’s appeal had been turned down unanimously, the chances—her new lawyer, Felicity Hunter, advised her—of being accepted to be heard in Ottawa could be no better than five per cent.

While preparing a possible appeal to the Supreme Court, Hunter spoke to me several times. She was very disturbed, both by the Alberta Appeal Court ruling and the original trial. She felt that “clearly there should have been severance,” and that cell-shot evidence would have assisted Yvonne’s case. She was also convinced that Shirley Anne had perjured herself, and that sentencing Yvonne to “first” was a “gross travesty of justice.” It “smells rank,” she told me, and corroborates the reputation the Wetaskiwin Judicial District, from which Yvonne’s all-White, largely male jury were drawn, has in Alberta legal circles: for certain crimes “the chance of getting a fair trial there is almost nil.”

Now, Yvonne and I were deep inside the looming stone Prison for Women, not a window anywhere, only walls, the plate iron door, the neon light buzzing faintly as she talked. The bright curtain of the long black-brown hair which she has not cut since her grandfather John Bear died—she promised him she would never again cut it—muffled her voice, veiled her face into a narrow line of nose, nostril, lips, a touch of chin.

“Mom came to my Appeal in Edmonton last October, when I first wrote you,” she said. “Courts are never any good, but Mom came, she hadn’t seen me since I was first sentenced. Pauline Shirt, the Elder, came too from Toronto. She brought a pipe into the courtroom and the officers didn’t want her bringing anything in like that, holding it up to give me courage. But they let her stay, and when I said, ‘That’s my mother,’ they let Mom come up to the side of the box where I was shackled.

“And I looked at her, and she looked a hundred years older than I remembered. And I look at her. ‘Mom!’ I say, ‘I’m doing good, I go do the sweats, I smoke pipe, I do the ceremonies, and I sing on the drums, and you know what? I don’t sound half bad!’

“And she started crying. I leaned over and held her, and I cried too, and I took my hair—I had one side of my hair braided, tied in a wide cloth to signify my mind, body, and spirit, that it was together—and I left one side of my hair unbraided, hanging down, because it covered my heart, to signify sorrow and pity—but not pity in the sense of ‘pity,’ but just humbleness, the most humble way to be. And my hair that was hanging down, I took that hair nearest my heart and I wiped my mother’s tears with it. And I told her, ‘Mom, don’t cry.’ ”

After a moment Yvonne continues, though her voice is breaking:

“And all Mom could say to me was, ‘I don’t want to see you in here.’ Nothing else, she never told me, ’O, by the way we aren’t doing so good outside either; your brother just raped one of your sisters and nearly beat another to death. No, nothing—just ‘I don’t want to see you in here.’

“I held her, and she’s a sma-a-a-all woman, she’s a big woman but she’s sma-all, and she seemed to just need me, so I was strong for her. And I wouldn’t cry any more, I wouldn’t let her see me hurting.”

Her voice grows stronger as she remembers: “That’s why I didn’t cry in Wetaskiwin when they sentenced me for Chuck’s death. Mom was sitting there in court, every day she’d been there, beside her sister whose daughter Shirley Anne saved her own neck by lying on me, and with her lies finished me. I stood there waiting for the sentence and I wanted to scream, I wanted to run, I wanted to die. But if I broke—I thought of my father. ‘No matter what,’ he always said, ‘you hold your head up, and your shoulders back.’ So I put my arms behind me like a Marine
would when they tell him to relax, and then I looked at the judge. And you could tell she didn’t like that jury decision, she didn’t want to pronounce it. I saw how her face changed when they said it, and I gave her a nod and I stood back further like, ‘Okay, I’m ready. Do it.’

“And a tear snuck out of my eye, it wasn’t for me, it was just to relax the tenseness of it. And I knew everybody was watching me so I wiped it away so they wouldn’t see it when more would come. And then the judge … she slammed me with twenty-five years.”

After a pause: “My first instinct was to put my head down and hang my hair in front of my face—but I didn’t. They led me out, I couldn’t look on either side of where I was walking. I just wanted to melt, to hide, but I found comfort in them throwing me into a little cell because I was out of the torture. They had finally decided.

“And I could have stayed in that little cell.” Her voice is thinned out almost to transparency. “I could’ve stayed in that cell, I could’ve set my mind to stay there for the next twenty-five years because I would have shut everything out, just let me dry up. But no.…”