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 told Wheaton that he had seen MacIntyre slip papers under his desk. Wheaton returned and confronted MacIntyre, who handed over the first statement that Patricia Harriss made to police in which she exonerated Marshall. But it wasn’t the first time that MacIntyre had told the RCMP that he had handed over the entire contents of the file when in fact he hadn’t.
Investigators finally found the murder weapon when Ebsary’s estranged common-law wife allowed the police to search the basement of the home they once shared. Fibres from the clothing that Seale and Marshall were wearing the night of the fatal stabbing were found on the knife. The RCMP also interviewed Ebsary’s daughter, Donna, who had seen her father wash the blood off his knife the night that Seale was stabbed. There was finally enough evidence to cast doubt on Marshall’s conviction.
On March 26, 1982, the parole board informed lawyer Aronson that Marshall would be released. After spending nearly eleven years behind bars for a murder he didn’t commit, Marshall walked out of Dorchester Penitentiary on March 29, 1982. He was twenty-eight years old. His parents were waiting to drive him from Moncton to Carleton House, a halfway house in Halifax. One of his first requests was to visit the fishing village of Peggy’s Cove to see the ocean. The following day, on March 30, 1982, Ebsary, then aged sixty-nine, was sent to the Nova Scotia Hospital in Dartmouth to undergo a court-ordered psychiatric exam before being sentenced for the December 1981 stabbing.
Aronson appealed to federal Justice Minister Jean Chrétien to grant Marshall a full pardon, which would recognize that Marshall never committed the offence. Under what was then Section 617 of the Criminal Code, Chrétien could order a new trial, refer the matter to the appeals court, or ask the appeals court to rule on specific questions related to the case. Chrétien was apparently outraged about Marshall’s wrongful conviction, but he was advised by his staff to refer the matter to the Nova Scotia Court of Appeal. In June 1982, Chrétien referred the case to the appeals court on the basis that new evidence uncovered by the RCMP had come to light. The court could order a new trial, declare Marshall not guilty or uphold his conviction. “All I want,” Marshall told The Globe and Mail reporter Michael Harris, “is what belongs to me, my freedom.”[8]
The Appeal Division of the Nova Scotia Supreme Court held a hearing on October 5, 1982, to consider the new evidence. Marshall sat quietly, dressed in a blue V-neck sweater, blue-gray slacks, a shirt, and tie. He had moved into an apartment and gotten a job as a Native education counselor with the federal Indian Affairs Department. The evidence was presented before Chief Justice Ian MacKeigan and Justices Gordon Hart, Malachi Jones, Angus L. Macdonald, and Leonard Pace, who was attorney general when Marshall was convicted in 1971. It included affidavits from John Pratico and Maynard Chant admitting they didn’t witness the fatal stabbing and weren’t even at the scene when it happened. Patricia Harriss recanted her testimony as well. She said her first statement to police about seeing Marshall with two men the night of the murder but not seeing Seale was the truth. The Sydney Police detectives filed affidavits saying the second statements from the witnesses were obtained because they believed Marshall had influenced the witnesses in their initial statements. The five justices heard applications from Crown Prosecutor Frank Edwards and defence lawyer Aronson. They decided to hear evidence from seven witnesses on December 1 and 2, 1982, including Marshall, Maynard Vincent Chant,