Children in the Morning (25 page)

She launched into a solo version of the Pink Curlers song “Love of My Life,” and rocked for two hours solid after that.

The radio, newspaper, and television coverage the next day was everything a public relations person could hope for. I hadn’t planned it. Beau swore he hadn’t planned it either, that the idea originated with Angie and Jack. But whatever the case, I pleaded in my mind,
Potential jurors, take note!
Beau stopped by my office to give me a copy of the
Righteous Defender
video, and I watched it the night before the trial. My client’s heroics were an inspiration. If only I could play it for the jury and say: “My Lord, I rest my case.”

†

Delaney sat beside me at the defence table as the trial got underway on Thursday, May 7, 1992. He whispered: “All right, counsellor, let’s get this show on the road. Or, get this showboat in the water.” But he knew enough not to dress like a showboat for the trial. He wore a sedate navy suit with white shirt and soft blue tie. I nodded approvingly at his ensemble.

“Hmmph! I have to say I feel naked here without my robe on, Monty.”

“I suppose you do, after all these years.”

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The prosecutors and I were decked out in our barristers’ black gowns and white neck tabs, but Beau was just a civilian for this event.

At the table in front of us were the Crown attorneys, Gail Kirk and Bill MacEwen, facing Justice Kenneth Palmer’s bench. The jury box was to our left, farther up the courtroom. The seven-woman, five-man jury had been selected, after much whispering, nudging, and note-passing on the part of Delaney, and it was time for the Crown’s line-up of witnesses.

The charge was second-degree murder. There was no way this could be painted as a planned and deliberate killing. The Crown’s theory, as presented by the police and the Crown’s expert witness, a pathologist, was that Beau killed Peggy by hitting her on the back of the head with a heavy rock, fracturing her skull. The rocks were at the foot of the stairs because the Delaney children had intended to use them to build a fort. After the deadly assault, they said, Beau carried his wife down the stairs, laid her on her back, and arranged the rock under her head so the wound would match the murder weapon.

Their backup theory was that Beau pushed her down the stairs, but this was so much like a fall — an accident — that they stressed the clubbing theory at the trial. The Crown dismissed out of hand any idea that Peggy tripped and fell down the stairs. If she had tripped, she would have fallen face first. The Crown, whose formal role is to pursue the truth, could not avoid calling the medical examiner, who candidly admitted in his report and on the stand that his findings were inconclusive: it could have been an accident or a homicide. But the lead Crown attorney, Gail Kirk, got him out of the way quickly, before welcoming her second opinion, Dr. Heath MacLeod, to the stand and spending nearly two hours eliciting his evidence. I got the pathologist to admit, on cross-examination, that it was possible the skull fracture was caused by Mrs. Delaney falling on the rock.

The autopsy showed a bruise on Peggy’s left arm, with one mark on the front-facing part of the arm and multiple marks on the back.

In other words, this was a mark left by a hand gripping the victim’s arm. Dr. MacLeod acknowledged that this appeared to be the result of someone being face to face with Peggy and holding her arm. My point was that this was inconsistent with an attack from behind.

I got the police officers who examined the scene to acknowledge 154

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that there was no blood at or near the top of the stairs where the fatal blow was said to have been struck. And no blood on Delaney himself. Or, as the officer said: “Not on the clothing he was wearing when we saw him.”

Sergeant Chuck Morash testified about being called to the scene and finding Peggy Delaney’s body lying undisturbed on the floor.

There were no signs of forced entry into the house. Morash asked Delaney if he had moved her. No. Touched her. No. The sergeant went on to describe how little Delaney said at the scene, apart from stating that he had not been home when his wife died and had arrived from Annapolis Royal around twelve thirty in the morning.

Delaney had not asked any questions, rhetorical or otherwise, about what might have happened to his wife. The detective with the degree in psychology left the impression that Beau had been cool and calcu-lating at the death scene. I had nothing to gain, and much to lose, by prolonging his testimony, so I did not cross-examine him.

The Crown’s last witness was Harold Gorman, the elderly neighbour who told police he had seen Beau outside his house the night Peggy died. Mr. Gorman was dressed in grey flannel pants, white shirt and tie, and a blue cardigan sweater. He shivered as if from the cold when he took his place in the witness box, was sworn in, and identified himself.

“Mr. Gorman, please tell the court what you saw on the night of January fifteenth.”

“Certainly. I looked out the window and saw Mr. Delaney in his driveway.”

“And what was he doing?”

“Just having a look around the place, as far as I could tell.”

“I see. What time would this have been?”

“I’m not sure. It was pretty late.”

“Can you give us an estimate?”

“No, I just can’t remember.”

“Was it dark?”

“Oh yes, it would have been after midnight. At least I think so, but I’m not sure.”

This was good for us, bad for Gail Kirk. Gail exchanged a glance with her fellow attorney.

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“Why are you not sure?”

“Well, it was quite a long time ago.”

“Mr. Gorman, did you give a statement to the police in connection with this matter?”

“Yes, I did.”

“Would you like to read a copy of the statement to refresh your memory?”

“Okay.”

Gail handed him the pages.

“Take your time. Read it over.”

He read through it, and then looked up.

“Does that help you remember better?”

“I guess so, yes.”

“So what time did you see Mr. Delaney that night?”

“Well, according to this, Lloyd wasn’t on yet at the time I saw Mr.

Delaney. And then I fell asleep and didn’t see Lloyd come on.”

“Who were you referring to when you said ‘Lloyd’?”

“Lloyd Robertson, anchorman for the late-night news on ctv.”

“And, to your knowledge, what time does the ctv news come on?”

“Eleven o’clock.”

“So your evidence is that you saw Mr. Delaney outside his house before eleven o’clock on the night of January fifteenth?”

“That’s what it says here, but when I think of it now, I —”

“Thank you, Mr. Gorman. When did you give that statement, do you recall?”

“Right afterwards.”

“Right after Mrs. Delaney was killed?”

“Objection, My Lord,” I said dutifully.

“I’ll rephrase that, My Lord. Mrs. Delaney died on January fifteenth. And you gave your statement shortly afterwards.”

“Must have been the following day.”

“Would you agree that your memory of the events of that night would likely be more clear closer to the time of those events than it would be now, four months later?”

“I tend to doze off and wake up a lot, you see, so —”

“Please answer my question, Mr. Gorman. Would you like me to repeat it?”

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“No. But let me tell you this. My memory of being in a landing craft on the sixth day of June, 1944, is crystal clear in my mind, much more so than my memory of what time I went out for groceries two days ago!”

The jury laughed at that, not in mockery but in sympathy with Mr. Gorman,
war veteran
Gorman, who had fought for our country in the Second World War. I suspect that squelched any plan Gail might have considered to have Gorman declared a hostile witness, so she could cross-examine him on his prior inconsistent statement. She let him off the hook. The jury had heard that the witness had previously stated that Delaney was home before eleven o’clock. Gail would have to be content with that for the time being.

I, however, had a witness lined up to speak to the Environment Canada weather summary for that day, so I wanted Gorman clearly on the record about the snowfall.

I stood and asked him: “Mr. Gorman, do you recall what the weather was like that night?”

“Snow blew up overnight, I remember that.”

“Did you take a look, to see what it was doing outside?”

“Oh yes, I got up and looked out. It was really loud against my window. I had work done on my windows just for that reason, to keep the weather out. They held up just fine.”

“That’s good. When you looked out to check the weather, did you see anyone around?”

“Well, I saw Beau.”

That was as good as it was going to get for us, so I moved on to another thing I wanted the jury to hear.

“Did you see anybody else around that night, Mr. Gorman?”

“Yes, I did. I saw some young fellow skulking around.”

“Where exactly was he?”

“He seemed to move around. He was over by Delaney’s, then he was at the house next door to Delaney’s, then he disappeared.”

“How long was he out there, that you could see?”

“A few minutes.”

“What was he doing?”

“Just loitering and peering around, at the time I caught sight of him.”

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“Can you describe him for us?”

“Skinny and wearing a hooded sweatshirt. I couldn’t see his face or his hair, or anything, so I wouldn’t know him again if I fell over him.”

“Those are my questions. Thank you, Mr. Gorman.”

After two days of testimony, the Crown rested its case.

†

Court would be sitting for only three days the following week, because Justice Palmer was booked to attend a conference in London.

If all went according to plan I would have everybody but my star witness, Beau Delaney, wrapped up in those three days. So I opened the case for the defence on Monday with a silent but fervent prayer that all would go according to plan. No surprises.

The first thing I did was call a meteorologist with Environment Canada, who brought his records for January 15 and 16, 1992. The snow started just after midnight. So if Mr. Gorman saw Beau when he got up to check out the storm, this corroborated Beau’s own estimate of the time he arrived home, and not the earlier time asserted by the Crown.

After that, we presented our version of how the fatal head wound was incurred. Our pathology expert, Dr. Andrea Mertens, testified in exacting detail about the shape and depth of the skull fracture, and had no hesitation in concluding that the wound was consistent with Peggy falling and hitting the back of her head on the rock. We went further than that, and had our engineer, Wes Kaulbeck, give us all kinds of impressive evidence on body weight and the velocity of a fall, and the forces in play, and the strength of the materials involved

— rock and skull bone. In the engineer’s expert opinion, Peggy’s fall down the stairs could well have resulted in the skull fracture that caused her death. Gail Kirk and Bill MacEwen spent a couple of hours trying to chip away at our witnesses on cross, but they didn’t do us any serious harm.

I went into overdrive the next day with a throng of character witnesses on Beau’s behalf. I called his parish priest, the president of the Kiwanis Club, the woman in charge of the food bank where Delaney 158

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and his family regularly volunteered. I called the president of the Nova Scotia Barristers’ Society. I called Peggy’s sister, Sheila, and her brother-in-law, Angus. They both spoke glowingly of Beau, who, along with all his other fine qualities, had never shown any inclination towards violence. I could have called hundreds of witnesses who could speak to Delaney’s good character, but we had to be reasonable.

Our next witness was in town as the result of a conversation I had had with my client a couple of weeks before the trial began.

“We’re certainly going to build you up, Beau, with all our character witnesses. And I assume the Crown has not been able to find anybody who has ever seen you become violent under any circumstances.”

“Exactly.”

“And we could call an endless parade of witnesses of our own who can say you’ve never been violent, but then why would you be violent, unless you were provoked? Which of course is the Crown’s theory.”

“How about somebody who can say I did not react with violence even when I
was
provoked?”

“Wouldn’t that be nice!”

“Did you ever hear about the incident with Wayne Theriault?”

“Who’s he?”

“An old client of mine. He ambushed me outside my office one night. Jumped me when I was heading to my car. I got him calmed down. Beau Delaney, cool and non-violent in a potentially explosive situation.”

“Any witnesses to this incident?”

“None living.”

“What?
What are you saying?”

“I mean Peggy was in the car.”

“Oh. No other witnesses?”

“A baby too young to remember. The only other witness was Theriault himself.”

“What are the chances he’d give evidence in your favour, if he was that pissed off at you?”

“Try him and see.”

“Where is he?”

“Renous.”

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“He’s sitting in a maximum security prison making crafts for the annual Defence Lawyer Appreciation Day.”