“We are more civilized.”[4] Marshall was taken to prison. Pratico returned to the Nova Scotia Hospital just before Christmas in 1971. He would continue to be in and out of psychiatric hospitals for the next decade.
Ten days after Marshall was convicted, a guilt-ridden Jimmy MacNeil went to the Sydney Police to tell them the wrong man was behind bars for Seale’s murder. He never thought Marshall, an innocent man, would be convicted. On November 15, 1971, he told MacIntrye that he had witnessed the stabbing. Roy Ebsary was the real killer. Ebsary was a vegetable cutter who had served with the Royal Navy during the Second World War. Under questioning, he admitted that he was in Wentworth Park that night but denied that he stabbed anyone. Police also interviewed Ebsary’s common-law wife, Mary, and son, Greg. He told police that his father was fascinated with knives and often carried one with him. They didn’t interview his sister, Donna, who had witnessed her father washing blood from a knife after Seale’s murder.
On November 17, a criminal-records check revealed that MacNeil had no prior convictions. However, Ebsary had one breach of liquor laws and a conviction for possession of a concealed weapon — a knife. The file with MacNeil’s statement was sent to assistant prosecutor Lewis Matheson. He informed Deputy Attorney-General Robert Anderson and handed the file to the RCMP. (At a public inquiry, Anderson admitted that during a private conversation with Marshall’s lawyer Felix Cacchione in 1984 he may have said, “Felix, don’t get your balls caught in a vise over an Indian.” He claimed at the inquiry that his comment was based on Marshall’s reputation rather than his race.)[5]
RCMP Inspector Ernest A. Marshall (no relation) and Constable Eugene Smith arrived in Sydney on November 16, 1971, and conducted a brief investigation. Inspector Marshall had been on the force for thirteen years and had developed a friendship with MacIntryre during the six years he worked in the Sydney area. He and Constable Smith spoke to MacIntyre, who was convinced that he had the right man. Constable Smith administered polygraph tests to Ebsary and MacNeil at a motel on November 23. Smith had been trained in polygraph science at New York’s National Training Centre of Polygraphic Science but he wasn’t yet certified as a technician. They concluded that Ebsary was being truthful but MacNeil’s test was inconclusive. Constable Smith put an end to it because MacNeil was shaking badly from alcohol detoxification. However, he didn’t resume the test when MacNeil’s problems disappeared. The RCMP closed the case without further investigation. They never re-interviewed Donald Marshall Jr. or any of the witnesses who testified at Marshall’s trial. As Constable Smith later admitted before an inquiry, they simply rubber-stamped the Sydney Police’s investigation.
While the investigation cast doubt on Marshall’s involvement in Seale’s murder, his lawyers, who were appealing the teenager’s conviction to the Nova Scotia Court of Appeal, were not informed about the new evidence. They also failed to raise a legal error that the trial judge had made when he stopped them from questioning Pratico about recanting his evidence. They lost the appeal in January 1972.
Marshall languished in county jail until June 20, 1972, when he was finally sent to maximum-security Dorchester Penitentiary in New Brunswick. He was transferred to the medium-security prison in Springhill in January 1975. While in prison, inmate 1997 went back to school and earned a certificate as a plumber. He passed the time playing hockey and baseball and running. Throughout his incarceration in Dorchester and Springhill penitentiaries, Marshall continued to maintain his innocence. A chain around his neck with an inscription from Isaiah, “No weapon formed against you shall prosper,” helped give him hope that one day the truth would set him free.
An application for a three-day pass to spend Christmas 1977 with his family was turned down. Marshall believed it was because he refused to admit that he had killed Sandy Seale. They also refused to allow him to attend his grandmother’s funeral. MacIntyre, who by then had become Sydney’s police chief, was against allowing Marshall to receive unsupervised temporary absences. He said he was concerned that Marshall would seek revenge against witnesses.
For their part, prison staff continued trying to get Marshall to admit to the murder. Marshall refused. He wrote letters to politicians trying to get his case reopened, to no avail. In a 1972 report, while Marshall was incarcerated at Dorchester Penitentiary in New Brunswick, a staff member wrote, “Marshall is a typical, young Indian lad that seems to lose control of his senses while indulging in intoxicating liquor.”[6]
In October 1979, he escaped while returning to Springhill Penitentiary from a wilderness camping trip for prisoners near New Glasgow, Nova Scotia. He made his way to his girlfriend’s house in Pictou and was recaptured there several days later. He was charged with being unlawfully at large and sent to the maximum-security Dorchester Penitentiary in New Brunswick. While he was in prison, Marshall broke his wrist in a hockey game, but the prison doctor told him it was just a ganglion. Eight years later, an X-ray at a civilian hospital in Springhill revealed two broken bones in his wrist that had rotted away and died. He had surgery to repair the damage.
Marshall’s incarceration also took an emotional and financial toll on his family. His parents were devastated and his father had nightmares. Marshall Sr. had to get an unlisted telephone number after his son was arrested because of threatening phone calls. His drywall and plastering business suffered. Each time he and his wife visited their son, they spent about $200 to travel more than 500 kilometres from the Membertou reserve to Dorchester, New Brunswick. At one time, the family had to rely on welfare to get by.
Meanwhile, the Sydney Police Department continued to receive information that they had the wrong man behind bars. In 1974, martial-arts instructor Dave Ratchford went to police a day after Ebsary’s sixteen-year-old daughter Donna told him that her father was Seale’s killer, not Marshall Jr. But Detective Urquhart said the case was closed.
While Marshall was imprisoned at Dorchester, a friend came for a visit and brought along a young man who had boarded with Ebsary. He said Ebsary admitted that he killed Seale. Marshall wrote Ebsary a letter. Ebsary replied that he knew Marshall wasn’t Seale’s killer and promised that he would get Marshall out of prison. Marshall sent copies of the letter to the parole board and the Sydney Police. He also contacted Halifax lawyer Stephen Aronson. On December 5, 1981, another stabbing occurred in Sydney. Ebsary was charged and convicted of the offence.
The RCMP began reinvestigating the case in February 1982 after Aronson wrote to the RCMP telling them that Mitchell Sarson of Pictou, Nova Scotia claimed Ebsary had committed the Seale murder. Staff Sergeant Harry Wheaton and Corporal James Carroll carried out the investigation under the supervision of Inspector Don Scott, commanding officer of the Sydney detachment. They were assigned to the case on February 3, 1982.
They met with MacIntyre, who produced two witness statements from Harriss and her boyfriend, Terry Gushue. A comment that MacIntyre allegedly made also raised eyebrows. MacIntyre said he wasn’t able to get a blood sample from Marshall because Marshall removed his own stitches from the minor knife wound he sustained during Ebsary’s attack. Wheaton asked why MacIntyre failed to ask Marshall’s doctor, Dr. Mohan Virick of Sydney (who was East Indian), for the sample. MacIntyre replied, “Those brown-skinned fellows stick together.” [7] MacIntyre also claimed that Marshall had escaped prison in 1979 by paddling a canoe more than 250 kilometres to Pictou, Nova Scotia. In fact, Marshall walked and hitchhiked.
Wheaton and Carroll were stunned by what they uncovered. Pratico, Chant, and Harriss all recanted their testimony, saying that they had been pressured by the Sydney police to lie. Chant, a born-again Christian, had told his parents and his pastor that he lied during Marshall’s murder trial. He was relieved to finally tell police the truth. Wheaton and Carroll interviewed Marshall at Dorchester Penitentiary on February 18, 1982, and March 3, 1982. The two concluded that Marshall was innocent.
When Wheaton and Corporal Herb Davies went to MacIntyre’s office in April 17, 1982, to question him about his original 1971 investigation, the burly detective was less than forthcoming. When the two RCMP officers left MacIntyre’s office, Davies
