Walter (Wally) Gillespie, left, and Robert (Bobby) Mailman in the south end neighbourhood where the two men grew up in Saint John, N.B. on Aug. 18, 2020. After already serving life in prison for a murder conviction in the 1980s, the two men are clinging to hope that their names will be cleared through a new federal review of their case.Darren Calabrese/The Globe and Mail
Canada’s Justice Minister has ordered a new trial for two New Brunswick men in their 70s who were previously convicted of murder and spent almost 40 years trying to clear their names, nearly half of it in prison.
Robert Mailman and Walter Gillespie were convicted of second-degree murder in 1984 in the grisly killing of a Saint John plumber named George Leeman, and sentenced to life in prison. Since the beginning of their convictions, they insisted on their innocence, and began an exhaustive campaign to overturn them that started in custody and continued once they were out and living back in Saint John.
On Friday, Arif Virani, Minister of Justice and Attorney-General, announced that after an extensive review, he has quashed their convictions over concerns that “new and significant information” was not submitted to the court at the time of their trials or appeals. In a statement, he said there’s “a reasonable basis to conclude that a miscarriage of justice likely occurred” as a result.
Mr. Mailman and Mr. Gillespie, whose appeals to the Court of Appeal for New Brunswick and the Supreme Court of Canada were dismissed in 1988 and 1994, submitted their application for a federal criminal conviction review in December 2019. This special provision of the Criminal Code allows a person who has been convicted of an offence and who has exhausted all rights of appeal to ask the justice minister to consider one last look at their case.
The announcement of a new trial is bittersweet for Mr. Mailman, who’s now 75. Last month, he was given a terminal cancer diagnosis and told he has just a few months left to live. He has lost more than 50 pounds since he became ill, and said he hardly has the energy to celebrate.
He said he was frustrated that he had to wait until he was on his deathbed, hooked up to an IV and without the stamina to sit up, before a court would finally consider his long-held belief his conviction was affected by police misconduct, flawed prosecution, judicial bias and false testimony.
“I’m planning my funeral, and I’m overwhelmed with so many emotions,” he told The Globe and Mail, from his apartment in Saint John. “I had to go through 40 years to get this. I just want to know if they’re going to finally apologize.”
Mr. Gillespie, 79, could not be reached. But in a joint statement with Mr. Mailman issued by Innocence Canada, an advocacy group for the wrongfully convicted that has worked extensively on their case, said he was grateful for the minister’s decision.
“It has taken 40 years. Today we are happy that justice is being done for us. Neither of us had anything to do with Mr. Leeman’s murder. We have always been innocent and we thank the Minister for what he has done,” he said.
The pair’s case was put in the spotlight by Ottawa Citizen journalist Gary Dimmock, formerly a reporter with the Saint John Telegraph-Journal, who spent years examining lingering questions surrounding the investigation and trials that put Mr. Mailman and Mr. Gillespie in prison. The Globe and Mail also probed the case in 2020, after the men had served their time, but were still fighting to prove their innocence.
Ron Dalton, co-president of Innocence Canada, said the men deserve credit for refusing to end their campaign to erase their murder convictions.
“I spent nine years in prison for a murder that I did not commit and much of that time I spent with Bobby Mailman and Wally Gillespie in a maximum-security penitentiary. They never gave up hope that one day justice would be done for them. Today is that day and I congratulate them on their perseverance and courage,” he said.
The organization said it was grateful to Mr. Virani for realizing the urgency of the case, and it hoped Mr. Mailman will be well enough to appear in court in Saint John soon as a result of the minister’s order.
Although the quashing could result in a new trial, the Crown attorney’s office has yet to say whether it intends to move forward with such a proceeding, and may decide it’s not in the public interest. A judge may “do the right thing” and decide to throw the whole thing out, Mr. Dalton said.
“It is welcome news for both Mr. Mailman and Mr. Gillespie. Both are in their senior years and Mr. Mailman is gravely ill. This is the best news they could have, and Innocence Canada is privileged to have been helping them,” said Jerome Kennedy, a Newfoundland-based lawyer who worked on their file, in a statement.
Mr. Virani said the decision to order a new trial is not a decision about the guilt or innocence of the applicants, but an order to return the matter to the courts where the new legal issues identified by the review can be resolved. One of the issues involves a receipt from a car shop, which would have given the men an alibi at the time of the murder, but was never disclosed by investigators. Both Mr. Mailman and Mr. Gillespie had numerous prior run-ins with the police, and have long claimed that coloured the investigation.
“All people living in Canada must have confidence that the justice system is there to protect them and that it can be trusted. A fair justice system must also be compassionate and balance the needs of victims while guarding against potential miscarriages of justice, which is why we have a process in place to review such cases,” Mr. Virani said.