Marshall’s family hired Sydney criminal lawyers Moe Rosenblum and Simon Khattar. Donald MacNeil didn’t give them copies of the contradictory witness statements. The defence lawyers weren’t aware that Chant, Pratico, and Harriss had given two different statements to police. For their part, Marshall’s lawyers were dubious that their client was telling the truth about the events that led to Seale’s fatal stabbing, including meeting two men who were dressed like priests. Although they were paid enough money to mount a proper defence, they didn’t check out Marshall’s story about being stabbed by an older man in a long coat, nor did they interview any of the Crown’s witnesses before the trial or investigate their stories and backgrounds. Had they done so, they would’ve learned that Pratico was sent to a psychiatric hospital after the preliminary hearing and Chant was on probation when police interrogated him. Instead, they relied on an incarcerated Marshall to give them leads.
On November 2, 1971, Junior Marshall was brought, handcuffed, to the Cape Breton County Courthouse, just blocks from Wentworth Park where Seale was stabbed. People had lined up on the steps of the law courts hoping to snag one of the hundred seats in the second-floor courtroom where he would be tried. His trial for non-capital murder got underway in the Supreme Court of Nova Scotia before Mr. Justice J.L. Dubinsky.
Before Pratico, the Crown’s star witness, was put on the stand in the Sydney courthouse, he made a last-ditch effort to tell the truth about what he really knew about the stabbing. During a recess, Pratico walked over to Marshall’s father. Donald Sr. called over County Sheriff James MacKillop and the defence lawyer Simon Khattar to hear what Pratico had to say. They were soon joined by Detective MacIntyre and the prosecutor, Donald C. MacNeil. They all went into a small room to discuss the evidence. Pratico said that Marshall didn’t stab Seale. But moments later a frightened Pratico went back into the courtroom and lied. He said that he was drinking beer behind a bush when he heard Marshall and Seale argue before Marshall pulled out a shiny object and plunged it into Seale’s abdomen. Rosenblum tried to discredit Pratico’s story by pointing out that he was drunk at the time of the murder and that he had said on other occasions that Marshall hadn’t stabbed Seale. But when MacNeil and the defence tried to question Pratico about recanting his story in the courthouse hallway, Justice Louis Dubinsky told them to confine their questions to the night of the stabbing. Khattar wasn’t able to find out why Pratico lied. That may have left the jury with the impression that Pratico had been intimidated by Marshall and his father into saying he hadn’t seen the stabbing. Little did they know that Pratico hadn’t been near the crime scene.
Harriss was having second thoughts, too, but police led her to believe that she would go to jail if she didn’t stick to the second statement she gave police, which said that Marshall and Seale were the only ones she saw in the park before the stabbing. Chant, a fifteen-year-old grade seven student from nearby Louisbourg, who had repeated a couple of grades, said that was heading home when he saw Pratico behind a bush watching two people on Crescent Street and witnessed the stabbing. Under cross-examination he admitted that he couldn’t positively identify Marshall as Seale’s assailant. He was declared a hostile witness.
Marshall was the only defence witness that Rosenblum called to the stand. The judge had to repeatedly remind the soft-spoken Marshall to speak up and stop covering his mouth with his hand. He testified that he was talking to Seale in Wentworth Park at about 11:00 p.m. when two men in long coats or cloaks approached asking for a cigarette and a light. They said they were priests from Manitoba and asked if there were any women in the park. Then the older man said “we don’t like Niggers or Indians,” pulled out a knife and stabbed Seale in the abdomen. He then slashed Marshall’s left arm with the knife. The trial was an ordeal for the young Marshall, who had just turned eighteen behind bars. He asked for and was given medication to help him through.
Jurors deliberated for four hours. Despite the absence of a murder weapon and the lack of motive, they ultimately chose to believe Pratico’s testimony and the Crown’s contention that Marshall’s wound — next to a tattoo of the words “I hate cops” —was self-inflicted. On November 5, 1971, Marshall was found guilty of non-capital murder. He sobbed as he was convicted that afternoon and sentenced to life in prison.
Racial prejudice was an issue for at least one juror. In an interview with The Toronto Star more than a decade later, one juror said there was no racism at play during the trial, but he also told a reporter, “With one redskin and one Negro involved, it was like two dogs in a field — you knew one of them was going to kill the other. I would expect more from a white person,” he said. “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.