Marshall was a fighter to the end

Donald Marshall died last week. I first heard of him in the 1980s.
The royal commission into his wrongful incarceration had just concluded. It was the first public investigation into a wrongful conviction in Canada. It would not be the last.
I certainly hadn't heard about Marshall's conviction and incarceration in the early 1970s. His conviction would have been minor news outside the province, but by 1989 it was major news. And it would go on to have echoes far beyond the lives of those involved at the time.
To me the story of Donald Marshall was incredible because it said the legal system is not always just and that sometimes justice is a long time coming, if it comes at all.Marshall was a young native man who was arrested after his friend Sandy Seale was fatally stabbed in Wentworth Park in Sydney on May 29, 1971. The two were 17, and the stabbing occurred after a teenage dance at a church hall.
The boys had met after the dance at a local park. They were standing on a bridge talking when a white-haired man approached them and asked for a cigarette and a match. When Sandy said he had none, the man said he didn't like blacks or Indians, and stabbed him in the stomach and slashed Donald on the arm.
This story would become lost, and not resurface for a dozen years. The rest is history, as they say, but history has a way of not going away.
Local police Sergeant MacIntyre investigated, but the crime scene was not secured, and statements were not taken at the scene or at the hospital.
Witness accounts which corroborated Donald's version of events were discounted in favour of accounts which pointed to his guilt.
Juvenile witnesses were interrogated in the absence of their parents and threatened with charges if they did not corroborate. One witness who was coerced was a 14-year-old girl.
On June 5 Marshall was charged with murder. Police would not elaborate on the break in the case that allowed them to lay charges, but at trial a teenager said he saw Donald stab Sandy in an argument.
We now know that witness was coerced to testify to events he did not see.Crown prosecutor MacNeil pursued a case based on shaky witness testimony, and the defense was, by all accounts, weak. When one of the witnesses attempted to alter his testimony, the prosecutor made it apparent he could be charged with perjury. Judge Drubinsky made it clear the defense had to stick to the agreed-upon statement of facts about what happened that night in the park.
We now know that statement was false, but a case built on lies could never arrive at the truth. It took four hours for the jury to convict.
The case was appealed, but weakly, because attorney Rosenblum didn't really expect the outcome to change. However, he was operating without full disclosure of the facts.
Evidence arose which affirmed Marshall's version of events and pointed to Roy Ebsary as the mystery assailant. Furthermore, evidence collected by RCMP Staff Sergeant Wheaton showed that eyewitness testimony had been perjured, and that Ebsary was probably responsible.
When the case did go to appeal in 1982 the deputy attorney general tried to prevent the acquittal. And a prosecutor on the original case sat on the appeal, raising issues of conflict of interest.
However, in the end, the appeal court judges concluded that Marshall was responsible for whatever injustice had happened. And the Supreme Court ultimately decided that those judges could not be questioned about their decision.
In a stinging indictment of that decision, the royal commission said there had been a grievous miscarriage of justice, which meant all those people involved in the investigation and prosecution were part of the injustice. Yet none of them went to jail or suffered in any way - not the police, the lawyers or the judges.
Marshall was finally exonerated during the inquiry and he went on to win another fight, in his appeal against being charged for fishing eels in 1993. The 1999 Supreme Court decision recognized native sovereignty based in historic treaties.The wrongful conviction case opened up a new understanding of problems in the criminal justice system. And the fishing case opened up new opportunities for natives in Canada.
Would he have picked these fights if he had a choice? Probably not, but he didn't back away from them either.
He might not have chosen it, but he had quite a life.

This article originally appeared in the Daily Gleaner, Aug 11, 2009