N.B. wrongful convictions: A story of undisclosed evidence, recanting witnesses

Robert Mailman, left, and Walter Gillespie, speak to media shortly as Ron Dalton, right, co-president of Innocence Canada, looks on after their hearing at Saint John Law Courts in Saint John, N.B., January 4, 2024. The two men recently had a 1984 murder conviction overturned and have now been found formally not guilty. THE CANADIAN PRESS/Michael Hawkins

The story behind two New Brunswick men's wrongful convictions for murder contains classic elements of how things can go terribly wrong in Canada's justice system, say the lawyers who fought to prove their innocence.

A written submission presented to the court by Innocence Canada lawyers on Thursday argues that "police tunnel vision, the non-disclosure of important evidence, recantations by the two key Crown witnesses," as well as a disregard for the men's strong alibis, were key factors in Robert Mailman and Walter Gillespie's 1984 murder convictions.

Mailman, 76, spent 18 years in prison, while Gillespie, 80, served 21 years. On Thursday, the province's chief justice found them innocent, following the federal justice minister's Dec. 22 decision to overturn the 1984 convictions for second-degree murder.

The court document goes back to Nov. 30, 1983, when George Leeman's partially burnt body was found by a jogger in a wooded area in the Fisher Lakes area in Saint John, N.B. There were 20 blunt force wounds to his head and face, and a hospital pathologist concluded he had been dead for at least 24 hours.

The investigation was stalled until Jan. 18, 1984, when a 16-year-old named John Loeman Jr. signed a statement — handwritten by police — that he had seen Mailman striking Leeman on the head with the barrel of a shotgun on the evening before the body was found. The witness claimed to have been about five or six metres away, hiding in the woods.

According to the summary, Loeman said Gillespie was nearby, holding "a white bucket with a golden liquid in it," and that he also saw a woman, Janet Shatford, hit Leeman with an axe.

Shatford, who was arrested on Jan. 19, 1984, pleaded guilty to a reduced charge of manslaughter and in exchange agreed to testify for the Crown against Mailman and Gillespie, the document says.

It says she testified that she had known Leeman for several years and that on Nov. 29 she encountered Gillespie and Leeman in a 1972 Buick that belonged to Marjorie Mills, Gillespie's girlfriend.

She originally testified that Leeman was discussing how he would come up with money to pay off his debts, and that — after Leeman and Mailman got out of the car — she witnessed Mailman hitting Leeman on the head with the butt of a shotgun and that he told her to strike Leeman with an axe.

However, in its brief, Innocence Canada outlines serious problems with these witnesses. The group's lawyers also describe how Mailman and Gillespie had strong alibis that police and the Crown wouldn't accept — a problem Innocence Canada says has been noted in four public inquiries into earlier wrongful convictions.

Both men had testified that at the time they were alleged to have committed the murder, they were repairing Marjorie Mills's Buick. They said that when Loeman alleged they were attacking Leeman, they were actually on the way to pick up a part to fix the windshield wiper. Mills corroborated the story, and a receipt was located to a shop where a car part was purchased on Nov. 29, says the court document.

Innocence Canada's submission says that after Gillespie and Mailman's first trial, which resulted in a hung jury, police investigated the alibi. It notes, "unknown to the defence," the Saint John police confirmed a recent repair of the windshield wiper on the car.

Nonetheless, the Crown urged the jury in the second trial to find the alibi was a fabrication "despite the ample evidence to the contrary," says the document.

Then there were the recantations of the two key witnesses. Innocence Canada noted it happened five times in the case of Loeman: to his own lawyer, to a journalist, in two letters and to a federal Justice Department lawyer looking into Mailman and Gillespie's wrongful conviction case in 1998.

"He (Loeman) said that he had given false evidence in court and was coerced to do this by Inspector Al Martin and Deputy Chief Charlie Breen of the Saint John Police," said the brief. In his first statement to police in December 1983, which was never disclosed to the defence, Loeman had said the last time he saw the victim was about a week before the killing.

The Saint John Police said in an email they are declining comment on the case as they wait to receive a copy of the federal Department of Justice's review of the case and rationale that led to the ordering of a new trial and the acquittals of Mailman and Gillespie.

The Innocence Canada brief also says that since the convictions, Mailman and Gillespie learned that the Saint John police had provided a total of $1,800 to Loeman, in addition to hotel and relocation costs, and this wasn't disclosed during the trial.

"For a 16-year-old living in poverty in 1984 this was a lot of money by any standard," says the brief, which argues this information should have been made available to the defence during the trial — allowing them to challenge Loeman's motives in testifying.

The Innocence Canada affidavit argues that in dealing with recanting witnesses like Loeman and Shatford, "it becomes impossible to determine when they are telling the truth and when they are lying," and that without corroboration, police and the Crown should have rejected their accounts.

This report by The Canadian Press was first published Jan. 6, 2024.

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