Death in the Yukon: Chapter 5 and 6

Sometime ago I wrote a short story about a notorious murder trial I was involved in. An old prospector Al Kulan, had been killed in a bar in Ross River Yukon with a single shot from a .357 revolver. He had been killed by his old friend John ‘Jack’ Rolls, my client.

These were my ‘John Grisham’ years. I was a character in one of his legal thrillers complete with villains, beautiful women and a compelling crime story. They didn't last long which upon reflection is just as well. I'm not sure I could have taken much more of it but at the time it was fast paced living at its best. This is a fictionalized version of that story. The killing in a remote winter bound Yukon settlement was real. The characters are made up. This is Chapter 5 and 6.

For as long as Beau could remember he had wanted to be a criminal lawyer and he had been single minded about that well before law school, reading all he could about great lawyers like F. Lee Bailey and Alan Dershowitz, following the career of Canada’s top criminal lawyer Ed Greenspan. Even as a young lawyer defending shoplifting and impaired driving cases he had thrilled to the fight, engaging in the courtroom contest as though he was born to it. What he didn’t know until it was too late, was the personal price he would pay and the price those who loved him would pay as he indulged his dream to become known as a great criminal lawyer.

His mentor Ed Horembala had taken Beau under his wing in the mid 70’s, just a couple of years after he had been called to the bar. It was an unusual match, the odd couple of criminal lawyers. Ed lived in Vancouver and had a small law firm in the resurgent Gastown area and he was well known in defence circles.

Beau had come to Ed’s attention after a letter he received from some unknown lawyer from Kelowna offering his services for free as junior counsel on criminal jury trials for the next two years. Beau had sent that same letter to forty prominent and experienced criminal lawyers in the province. It was brash and precocious and Ed loved it.

“Ed Horembala here, is this the Beau Jackson who wants to learn about jury trials. Are you crazy?” he offered, the sarcasm softened with the warmest laugh Beau would ever hear.

Beau was thrilled. This was the Ed Horembala. He knew that Horembala had been junior counsel in the defence of Steven Truscott, a fourteen year old Ontario boy who had been tried and convicted for the sexual assault and death of Lynn Harper, his classmate. The case is to this day one of Canada’s most notorious prosecutions. Beau had studied the case in law school. Truscott had been tried as an adult and sentenced to death, at a time when Canada still had the death penalty. It was infamous and Beau knew every detail about it. This was that Ed Horembala on the other end of the phone.

“So tell me about yourself,” he said.

“Well I’m only called two years but I know what I want and I can’t get there defending shoplifters in Kelowna.”

Ed laughed. “Well yes, I get that from your letter. What I mean is tell me about your personal life.”

‘So I’m 26, I’m married and my wife is pregnant with our first.”

“Does she know about this letter you sent out?”

Beau thought that was a strange question, “For sure, why do you ask.”

“Well, if you do go down this road, the people in your life have to be on board. They all pay a price.”

Beau didn’t have a clue what Ed was talking about but he wasn’t about to push back, “She’s all in Ed, it’s good.”

Many years later Beau would understand why Ed had asked those questions. He was already on his second marriage and had learned what Beau did not yet know: there was a price to be paid to become a great criminal lawyer and that bill would come due later, when it was too late.

So Ed mentored Beau through the next few years, initially a generous and invaluable legal resource and adviser, later a friend. When he travelled to the interior on his own cases Ed would make a point of spending time with Beau, watching him in court, advising, debriefing and always asking after his personal life.

He was a big bluff man with a silver white shock of hair and a bushy white moustache. He was charismatic in court and would light up the room with a magnificent smile. In the courtroom he was the centre of attention, his easy friendly manner with sheriffs, cops and court clerks an engaging cover for a tenacious, relentless, take no prisoners defence lawyer. Win or lose, you knew you were in for a fight when Horembala showed up. That was exactly what Beau wanted to be.

Beau spent as much time as he could with Ed. Early in his career he had a case go to the Federal Court: the Federal Court of Canada in Ottawa, that is! Beau was just three years in and was off to the Federal Court of Canada. He was good with over reaching but for this he knew he was completely out of his depth. He asked Ed to co counsel with him.

In the fall of 1977 the unlikely pair found themselves staying in the Four Seasons Hotel on Parliament Hill, directly across the quadrangle on the hill from the parliament buildings and the Federal Court itself. Beau had done well at law school but no one, not one person in his class would have bet on him being the first in the UBC Law Class of ‘73 to make it to the Federal Court. It always made him laugh.

But bravado aside, nothing had prepared Beau for this. All lawyers were required to be in Ottawa by the Sunday of the week your case was scheduled. Each day the Clerk of the Court announced the cases to be heard the next day. You simply had to be ready to go. So from that Sunday on, Beau had anticipated being called and each day the case was put over. That was fine but for one small issue.

Ed snored. But to say ‘Ed snored’ is to craft an understatement of epic proportions. He didn’t just snore he actually made the kind of sound that Beau had only ever heard when a train would wind its way through the canyons of the Kicking Horse River near Golden BC, blasting its horn every few seconds. The word ‘loud’ was simply inadequate.

So knowing this and knowing he had to be sharp when the call finally came, Beau arranged to go to sleep each night, one hour before Ed. And of course, falling asleep, which had never been a problem for Beau, was just not going to happen when he had to fall asleep before Ed.

Each night, on schedule the Ed Train drove through the canyons of their room at the Four Seasons on Parliament Hill. By Thursday when the call finally came through Beau was bone tired. Ed said, his huge disarming smile covering his round face, “By the way Beau, I’ve booked another room. I’ll sleep there tonight.”

The entire week was one of Beau’s happiest memories of his years with Ed.

Beau and his wife had two glorious children. His career was going full tilt, he’d bought his first house, he had a condo up at Big White ski resort; without a doubt his best days lay ahead.

But what Ed had known and Beau had not was that this path Beau was on was a trail made for just one person. Years later when Beau tried to piece together the wreckage and understand the pain he had caused the people he had loved, he could see that he simply had no idea what was coming his way. To be a criminal defence lawyer, at least for someone like Beau, was to be completely and utterly self absorbed and narcissistic, unmindful, even unaware of the pain he was causing at the time.

The worst of it all as Beau later came to think, is that he had been so single minded, so lacking in empathy, so unaware of the pain, that even had he known the damage he was doing, he wondered if he would have changed anything.

He would never forgive himself. Beau always wondered, had he known the full price he would pay, and others in his life would pay, would he have gone down the same path? It’s not inevitable for all criminal lawyers but it had been for Beau. Ed had understood that but knew it was just something that lay ahead; any warning would have been neither understood nor heard.

Brilliant and ambitious, hard working and insatiable, kind and loving Beau was nevertheless flawed. Like water looking for the opening, this flaw would flood Beau’s world with profound damage and hurt the very people who loved him the most. When he finally came to understand that, was when he finally became a man.

By the time Beau landed in Whitehorse for the second Stokes trial in 1982, he had two beautiful children and had separated from Faith.

Ed’s foreboding had become Beau’s reality.

Beau sent his paralegal to the airport. Dr. Pringle needed to be picked up. It was unusual but Beau had asked the Judge to permit Pringle's testimony on hate, rage and the dissociative state to be video taped on the first day of evidence. The prosecution would be able to cross examine the psychiatrist but the jury wouldn’t see the testimony until after the prosecution rested its case.

When Roberta returned with Dr. Pringle she was spitting mad exclaiming with the fury of an accosted woman, “He stuck his tongue down my throat!” Beau had met Jonathan Pringle in his Vancouver office a few weeks earlier and came away very impressed. He had an extraordinary mind and was one of the world’s leading authorities on the human capacity for violence. But that said, it turns out he came with considerable baggage which would eventually see his career ruined and his reputation destroyed.

Beau knew none of that when Roberta stood before him as angry as he had ever seen her and she was looking to him for support.

That she had good reason was not in doubt, but if it meant confronting Dr. Pringle less than an hour before he testified, that was just not going to happen.

Jury trials are a fascinating strategic contest between the prosecutor and defence lawyer, both battling for the minds of each and every juror. Of course, in criminal trials the defence doesn’t need to win over the minds of each and every juror.

Just one would do.

The presumption of innocence, the foundation upon which our criminal justice system rests, means the jury must decide unanimously on the facts presented and beyond any reasonable doubt that the defendant is guilty of the crime charged. It is a high test, intentionally so, and it has for the most part ensured that very few innocent defendants have been convicted in Canadian legal history.

From his earliest years as a criminal lawyer Beau had thought the contest was unfair, that the system was stacked against the defendant. On the one side a highly trained police force, on demand forensic resources at the disposal of the prosecutor, resources that would be unavailable for all but a few rich defendants, expert prosecutors and judges and a system which Beau had always thought was systemically biased in favour of conviction; why would the police charge this guy if he wasn’t guilty? If you’ve been charged with a crime in this country, you’re probably guilty right? It was stacked against any defendant.

On the other side, the defendant’s side, the defence lawyer.

In any event, it had driven Beau from the beginning. In court he had become an uninhibited interrogator of witnesses, often incurring the wrath of prosecutors and judges alike. He had gained a reputation as a fearless, powerful and fierce defender of his clients.

It was where his nickname ‘Bear’ came from. One day, not long into his career, a sheriff’s deputy escorting Beau’s scared client into court turned to him and said, “Don’t worry son, you have a bear defending you. You’ll do just fine.” And so it was, Beau ‘Bear’ Jackson.

Beau believed all that stood between his client and an unfair verdict, was him. He would not be told to be more courteous or have more decorum in a court of law, not if it meant the evidence would not be tested. With each case Beau steeled himself for the battle ahead, this righteous sense of purpose and fairness, driving him on.

Joe Stokes was flat out not guilty of first degree murder, not in Beau’s mind, not on these facts. He had killed Hank Woods, and he had acknowledged that fact. But this was a crime of rage and hate, not of planning and premeditation. This was second degree murder. That was the proper, fair result. Beau knew it was critical to have a sharp focus on an achievable goal in any trial. Second degree was a fair achievable goal.

Beau trusted juries. He had done many jury trials and had come to trust that a good jury, with a good foreperson, always returned a correct verdict. There is something powerful at play when twelve men and women weigh the evidence, argue its merits, argue and fight inside the jury room, something powerful that works. Beau had often thought judges by themselves made the wrong decision in his cases. He had never thought any jury had.

The first order of business with every jury is to introduce your defence, in a simple understandable way. This is a jury, not a bunch of lawyers, they’re everyday people with common sense, and everyday people with the wisdom of the group. Beau trusted that. He rose to address the jury that first morning.

“Ladies and Gentlemen of the jury, I know the weight upon you right now is enormous and you probably wish you weren’t here today. I know as well that some of you, maybe all of you have already decided in your mind’s eye what the verdict should be.

I know Hank Woods was well liked and I know that most people in Whitehorse are outraged at this death, maybe even some of you are angry that he was given a second trial, when this has already been decided.”

He continued, “I know that you will have heard or read many opinions, some of them I have read myself in the Whitehorse Star, probably capturing what the good people of Whitehorse think about all this. Think about Joe Stokes.

Joe fixed his eyes on every member of the jury, moving from each one of the twelve men and women, deliberately and without words imposing the full weight of their responsibility on them,

“So all I can do is this. I’m going to ask you to do whatever you can to be fair. That is all we can ask of any of us, wherever there’s a tough decision to be made. Do what you can to scrub your mind of what you think right now, before you have heard any evidence, before it has been tested, scrub your minds clean. Let what you learn over the next few weeks lead you to a verdict. Let the power harnessed with any jury of twelve good men and women lead you forward.”

It was time to let this jury know his defence, “Joe Stokes killed Hank Woods. There is simply no disputing that he walked up to Hank in a bar in Ross River and shot him dead. That is not at issue and we will not waste your time arguing otherwise. There is only one question for you to decide.

Why?

Why did Joe Stokes kill Hank Woods? How is it that an otherwise law abiding citizen, someone many of you will have known over the years, a man who had never broken the law, how did this man get to the point where all of the controls that stop us from doing bad things, all of them failed to control Joe that night? What happened to his mind?”

Beau was at the heart of his opening.

“Joe Stokes was in such a rage, had accumulated such hatred over the years, he wasn’t in his right mind. You’ll hear from one of the world’s leading forensic psychiatrists, an expert on rage and hatred and the human mind. He’ll speak in complicated ways about research and dissociative behaviour and quite frankly I won’t be surprised if you don’t get it. I’ve spent many hours with Dr. Pringle and more hours researching dissociative behaviour and I still don’t get it. But I think you will. Let me put this in a way we can all understand: Joe Stokes was out of his mind with anger.”

Beau was deliberate now. He needed to make sure the jury understood what the key question was, the only question they would have to wrestle with.

“Joe Stokes was out of his mind, when he shot Hank Woods with that revolver. What else could explain it?” he exclaimed, more statement than question.

Beau needed to be careful. He knew he had to establish a relationship with this jury and as with all relationships it had to be built on respect and trust and he had to let this jury know that he trusted them. Any disrespect, any perception of disrespect, even if it was unintended would undermine that. If they thought he was talking down to them, he would lose them.

As he spoke, not three feet from the front row of the jury box, forcing them to look at him, Beau scanned each face, trying to read their minds. Beau sat down. He didn’t need all the members of the jury to think about what he had just told them. He just needed one. He scanned each person, looking for any sign, a nod, a smile, a gaze, anything signalling ‘Okay, you have my attention.’ That’s all he needed.

Beau had set in play another piece of his strategy and he knew that even the prosecutor had missed it. He’d introduced the Whitehorse Star to the jury. He had no idea if it would come to anything but he had come to think the newspaper would become part of the second trail at some point.

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"I'm a storyteller. Once in a while, I express an opinion but mostly I just observe. Turns out, as the American writer David Sekaris says, "Human beings are hilarious!". He's right, we offer no end of good material. My stories come from the long journey of a 72-year-old man." Tony Peyton

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