Friday 23 December 2011

The trial in 1884 was outrageous

Even in this modern era we are in, we hear about trials that are farces and innocent persons who are convicted of crimes they didn’t commit and judges who interpret the law erroneously and prosecutors who have hidden agendas. And yet, if you are accused of a crime and are facing a trial nowadays, you have a better chance now of getting a fair trial than you would have over a century ago. This article is about a trial of two men that took place in 1884 in Ontario. Calling what they went through a trial is like describing a skunk’s smell as perfume created by Estee Lauder.

The story began around 10 p.m. on December 21st, 1883, at Gilbert and Margaret Jones’s farmhouse near Bloomfield, six miles west of Picton, when two armed men pounded on the door, one wearing a mask, the other a hat and what looked to be a false beard.

The prosecution’s theory was the men had come to rob Jones of $555 he had been paid earlier that day for a load of hops. There was a scuffle after the intruders forced their way into the house and Peter Lazier, a relative who was staying overnight with the Joneses, was shot in the heart and died. The two robbers fled.

Margaret Jones ran to the neighbours, who set out into the night, trying to track the killers through footprints in the snow. The footprint evidence was crucial but flawed. There were large gaps where the trail had broken off and nobody could follow the tracks all the way. As they tramped through the snow carrying lanterns, the searchers left footprints of their own, a confusing pattern of as many as 12 to 15 different boot markings.

This reminds me of a break-in that I as a private investigator was asked to investigate. The burglar tramped through the snow in the backyard of the premises so his footprints would give me some idea of the size of his boots. Unfortunately, by the time I arrived on the scene, there were five more sets of footprints in the backyard. They were the footprints of five cops. Needless to say, no one could differentiate which footprints belonged to the burglar.

The victim’s brother-in-law had arranged for the Belleville police chief, Hugh McKinnon, to come to Picton to head up the investigation. McKinnon obtained boots from the suspects and attempted to compare them with the footprints by placing them directly into tracks in the snow, hopelessly contaminating the evidence. The chief of police was once described as part Wyatt Earp, part security guard, but hardly a Sherlock Holmes.

In 19th century Canada, once the public had decided someone was guilty of a crime, there were few opportunities for changing their minds. An accused person was not permitted to tell his or her side of the story by testifying in their own defence and the law did not allow convicted persons a right of appeal.

The rule against an accused person testifying was meant to protect the right to silence, the thinking being that if a person charged with a crime were permitted to get in the witness box, anyone who didn’t do so would appear to have something to hide and be presumed guilty.

Nowadays, defendants have the right to testify on their own behalf. If they are tried by a judge and jury and they don’t wish to testify at their trial, the judge is obligated to inform the jury that the defendant is not required to testify at his own trial and that they are not to presume from him exercising that right that he is guilty of the crime he is being tried for.

However, if the defendant chooses to be tried by a judge alone and he chooses not to testify and the judge has heard the testimony of an eyewitness that he believes, the judge can make the comment that it would have been helpful if he had heard the defendant’s side of the story from his own lips.

The judge, Christopher Patterson, knew the town of Picton well because he had lived and practiced law there for many years before being appointed to the Ontario Court of Appeal. As was the case then with appeal judges, Patterson had ample free time and often took on extra duties as a trial judge.

Though considered a good judge, he failed miserably at keeping decorum in the courtroom, where the unruly crowd jeered the defence and applauded the prosecution. Mr. Justice Robert Sharp who wrote a book about this trial (The Lazier Murder) said in part;

“The atmosphere in the courtroom at the trial was actually, I think, disgraceful. The jury could not avoid knowing this community wanted these men convicted and desperately wanted that to happen. And that had to have an impact on the result.”

I agree with Mr. Justice Sharpe when he said in an interview, “This was a terrible crime. It shook the community to its core. And there was even talk of lynching the men who had been arrested. Their convictions may have been a miscarriage of justice, the product of amateur detective work and a rush to judgment by a police chief determined to make his name as a crime buster and by a community bent on revenge.” unquote

I would be less than honest if I didn’t point out that we still hear on occasion of similar cases where the convictions were a miscarriage of justice for the same reasons as stated by Mr. Justice Sharp.

Many years ago, I was charged with knocking out a retired boxer with a 14-inch flashlight. I didn’t even have the flashlight with me when I entered the building where that man lived. The cop presumed that I had the flashlight in my hand even though the man I knocked out said he only saw my fist coming towards him. The prosecutor offered me a deal saying that she would reduce the charge to simple assault if I would plead guilty to that charge. She made that deal after she had already spoken with the man, his wife and adult daughter who all told the prosecutor that they never saw a 14-inch flashlight in my hand. Needless to say, I pleaded not guilty and the judge ruled that I was not guilty because I was rightfully defending myself when the man was attempting to drag me back to his apartment after I served his wife with a multi-million dollar claim while I was working as a process server. If the judge had been anything like the prosecutor in my case, I would have been convicted of a crime I hadn’t committed.

It took the jury just over an hour to reach its verdict. They found the two accused men, Joseph Thomset and George Lowder guilty of capital murder.

All these years later, there are lessons to be learned from the case, said Sharpe, who said that judges and lawyers should be ready to rethink how they dispense justice. “When we look back on this case through modern eyes, we see all kinds of things that seem odd,” he added. The case is also a powerful reminder of the potential for wrongful convictions and how the mood of a community can influence the result.”

With respect to Thomset’s and Lowder’s sentences of death, it fell to some leading citizens to plead with the prime minister, John A. Macdonald, to spare the two men’s lives, pleas that were denied despite the tenuous nature of the case against them.
Newspaper reporters were allowed into the jail in the days before the execution and Sharpe uncovered poignant accounts of the men’s final hours. A church bell began to toll at 7:45 a.m. as they were led from their cells. Standing side-by-side on the trap door, they grasped each other’s hands. “Goodbye, Joe,” Lowder said, while Thomset remained silent.

But the tragedy didn’t end just there. The hangman was obviously an amateur. When a condemned man is hanged, he is supposed to drop far enough so that his neck will be broken which will bring about instant death. When the trapdoor was sprung under these two men, they didn’t die right then and there. They were seen kicking violently while they slowly stangled at the end of their ropes.

The hangman’s bill was $40 plus $6.50 for “refreshments,” which seems strangely self-indulgent given how the executions were botched. Actually the entire incident from the time of the investigation, and the trial and the execution was botched to say the least.

Later, it fell to others to speak for them. In the pauper’s section of Picton’s Glenwood cemetery, someone recently found a gravestone, crudely inscribed with Lowder’s name, followed by the words ‘Hanged. 1884. Unjustly.”

Justice is indispensable for the benefit of all members of society. Even the most wicked who live by crime are entitled to their share of it.


As a gift to my readers, I am going to give you four Christmas stories that I have written in which three of them are in two of my books of short stories. On Saturday, the story will be THE VISIT BEFORE CHRISTMAS. On Sunday, the story will be UNEXPECTED GUESTS. On Monday, the story will be SANTA'S GIFTS and on Tuesday, I will tell you the real story of Jesus' birth. Meanwhile, I wish you all season's greetings.

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