When the court hearing resumed on February 16, 1983, Crown prosecutor Frank Edwards and defence lawyer Aronson argued for just forty-five minutes that the five Supreme Court judges quash Marshall’s conviction and acquit him of murdering Sandy Seale. Aronson argued that a miscarriage of justice had occurred. But Edwards argued that Marshall was “the author of his own misfortune to a very large degree.”[9]
On May 10, 1983, more than a year after Marshall was released from prison, lawyer Stephen Aronson phoned the band office at the Membertou reserve to announce that the five judges of the Supreme Court of Nova Scotia unanimously acquitted Marshall of the murder of Sandy Seale. The band office emptied as people ran from one house to another to share the news that Junior was free. Marshall learned the news from his tearful mother when he went to Victoria General Hospital in Halifax to visit his father who was suffering from kidney failure. For Caroline Marshall, “It was the best Mother’s Day present I’ve ever had, even if it was late.“[10]
But in a portion of the sixty-six-page decision that would hinder Marshall’s efforts to obtain compensation from the province, the judges picked up on the Crown’s argument and blamed him for being the author of his own misfortune. They said that any miscarriage of justice in his case was more apparent than real. “In attempting to defend himself against the charge of murder Mr. Marshall admittedly committed perjury for which he could still be charged. By lying he helped secure his own conviction.… By planning a robbery with the aid of Mr. Seale he triggered a series of events which unfortunately ended in the death of Mr. Seale.”[11] The judges made no reference to the perjury committed by three witnesses in Marshall’s original trial. They also exonerated the police and the Crown while convicting Marshall for an offence for which he was never charged.
Aronson and Marshall were pleased with the decision but wanted a public inquiry to be called to determine how an innocent man came to be convicted of murder. Marshall had also amassed a legal bill of $79,000 for his acquittal, which he was unable to pay. Aronson said the Union of Nova Scotia Indians and the federal government both told him the bill would be paid. For its part, the provincial government refused to pay despite the fact that the administration of justice is under provincial jurisdiction. Having run out of money, Aronson left private practice and took a job with the federal government. But he didn’t regret the work he did for Marshall’s release. “I will always look forward to seeing this guy. What he’s done in the last year, after spending 11 years behind bars is absolutely amazing. During the last year he’s remained normal while I’ve grown less trusting and more cynical about the workings of the system.”[12]
On May 12, 1983, two days after Marshall was acquitted, Roy Newman Ebsary was finally charged with second-degree murder in the death of Sandy Seale — twelve years after Seale was stabbed to death. The charge was reduced to manslaughter at his preliminary hearing in August 1983. Ebsary pleaded not guilty on the grounds of self-defence. On September 12, 1983, his lawyer, Luke Wintermans, tried to have the charges dropped on the grounds that too much time had elapsed between the offence and Ebsary’s trial. Justice Lorne Clarke of the Nova Scotia Supreme Court dismissed the motion. Before a jury of eleven men and one woman, Wintermans claimed that Ebsary was defending himself when he stabbed the unarmed Seale. After a one-day trial and ten hours of deliberations, the jury couldn’t come to a decision. Ebsary was released on his own recognizance pending a new trial. This was in contrast to twelve years earlier, when Marshall was taken from the courtroom in handcuffs and shackles. Noel Doucette, then president of the Council of Nova Scotia Indians, and a fourteen-year member of the provincial Human Rights Commission, was upset. “It’s a sad irony. Twelve years ago Donald Marshall (a Micmac) came into this same courtroom in shackles. It took a white jury only 45 minutes to convict him. Then you see Ebsary, a white man just walk in and out of here as if he had done nothing at all. It’s justice for the white man and for the Indian; it’s the law.”[13]
Ebsary’s second trial began two months later, on November 4, 1983, before Mr. Justice R. McLeod Rogers of the Nova Scotia Supreme Court. This time, prosecutor Edwards played a tape recording of a twenty-minute conversation between Ebsary, seventy-one, and Corporal James Carroll, a twenty-three-year veteran of the RCMP. In it, Ebsary described the sequence of events that occurred in Wentworth Park on May 28, 1971, and how he stabbed Seale and slashed Marshall’s arm, then went home, fired up a barbecue, and cooked up some steaks. Ebsary claimed Marshall had fatally stabbed Seale to “finish him off.” He was found guilty of manslaughter. Donald Marshall Sr. raised a clenched fist in victory. After years of public shame about his son’s conviction, the right man was finally convicted. On November 24, 1983, Ebsary was sentenced to five years in prison in the same courtroom where Marshall was sentenced to life behind bars twelve years earlier.
But it was not over. Ebsary was released on bail pending an appeal of his conviction. The Nova Scotia Supreme Court Appeals Division ordered a new trial on September 11, 1984. Chief Justice Ian MacKeigan ruled that the trial judge in November 1983 gave the jury incorrect instructions on whether Ebsary acted in self-defence when Seale and Marshall confronted him. Ebsary’s third trial got underway in January 1985 before Justice Merlin Nunn. As Ebsary was found guilty on January 17, 1985, Marshall sat in the back of the courtroom and wept quietly. On January 30, 1985, Ebsary was sentenced to three years in prison but his lawyer appealed. On May 12, 1986, the Nova Scotia Supreme Court upheld Ebsary’s manslaughter conviction but reduced his sentence from three years in prison to one year in county jail. The Supreme Court said it reduced the sentence because of Ebsary’s advanced age and failing health and because there was an element of self-defence. On October 9, 1986, the Supreme Court of Canada refused Ebsary leave to appeal the conviction. He served his one-year sentence at the Cape Breton County Correctional Centre near Sydney. The tiny, frail eccentric lived the final years of his life in Sydney rooming houses, estranged from his longtime common-law wife and their two children.
Compensation for Marshall’s eleven years behind bars and a public inquiry into his wrongful conviction proved to be another battle he would have to fight. The federal government argued that it was up to the Nova Scotia government to compensate him since the administration of justice is under provincial jurisdiction. Nova Scotia’s attorney-general initially said that Marshall’s Aboriginal status made him a federal responsibility. Marshall wanted $1 million in compensation, taking into account his loss of freedom and pain and suffering during his incarceration. During negotiations with the provincial government, which began in June 1984, Marshall’s lawyer, Felix Cacchione, also cited a New Zealand case in which a wrongly convicted person received $1.3 million in government compensation and an American case in which $1 million in compensation was paid. But the provincial government’s position was to pay Marshall as little as possible. The final settlement wouldn’t take into account the botched police investigation. They didn’t believe that a miscarriage of justice had occurred.
Cacchione was denied access to the provincial government’s files on Marshall’s case, giving the government an advantage during compensation negotiations. As Reinhold Endres, the government’s chief negotiator, later testified at a royal commission into Marshall’s wrongful conviction, the province wanted a settlement that was as low as possible. “My concern was not that justice be done for Mr. Marshall,” he said. “The way I approached it was how far down we could come from that figure.”[14] In the appeal that acquitted Marshall, the Nova Scotia Supreme Court justices said that a miscarriage