Robert Mailman, left, and Walter Gillespie, speak to media shortly after their hearing at Saint John Law Courts in Saint John, on Jan. 4.Michael Hawkins/The Canadian Press
The Chief Justice of New Brunswick’s superior court apologized Friday to the two elderly Saint John men wrongfully convicted in a gruesome murder case nearly 40 years ago in what is now the second such case in the province involving the Saint John Police.
“The justice system in this case failed Mr. Mailman, Mr. Gillespie and Mr. Leeman. For that, as Chief Justice of the Court of King’s Bench of the New Brunswick, I offer my sincere apology,” wrote Chief Justice Tracey DeWare in her decision on Friday.
Walter Gillespie, 80, and Robert Mailman, 76, were convicted of second-degree murder for the killing of a Saint John plumber named George Leeman, whose charred, beaten body was found by a jogger in a park in Nov. 30, 1983. An appeal was dismissed in 1988.
The pair always remained steadfast in their declarations of innocence. Weeks ago, after decades of wearing the label of convicted killers, federal Minister of Justice and Attorney-General Arif Virani ordered a new trial for the two men, concluding that mistakes were made and a miscarriage of justice likely occurred.
During an emotional hearing on Thursday, the Crown offered no evidence, leading Chief Justice DeWare to acquit the pair.
“I must infer that serious mistakes were made and the miscarriage of justice that occurred as a result of these mistakes have had the direst of consequences for these two men,” wrote Chief Justice DeWare in her decision, released Friday. Mr. Mailman served 18 years in prison while Mr. Gillespie served 21.
Chief Justice DeWare also expressed “profound regret” to the family and friends of Mr. Leeman, who have been deprived of answers as to the circumstances of his homicide.
“None of this can be accepted in a free and democratic society based upon the rule of law,” she wrote.
She said the administration of justice owes a debt of gratitude to the men and their counsel at Innocence Canada, a group that fights for the wrongfully convicted, who spent thousands of hours poring over the case prior to applying for a federal criminal conviction review in December, 2019.
New Brunswick’s Justice Minister Hugh (Ted) Flemming declined an interview about the case.
His department also declined to respond to questions from The Globe about Innocence Canada founder James Lockyer’s demand for a public inquiry into other potential wrongful conviction cases in the province.
Mr. Lockyer has said this case revealed the same issues – the non-disclosure of evidence, pressuring of witnesses and recantations – that came up in the miscarriage of justice case of Erin Walsh. He was convicted of second-degree murder in Saint John in 1975, but acquitted in 2008 with help from Innocence Canada.
“New Brunswick Public Prosecution Services doesn’t have anything further to add to what was stated in court on Thursday,” wrote the province’s Justice and Public Safety spokesman Allan Dearing.
Mr. Dearing did not respond to a subsequent request asking whether the province would apologize to the men.
Saint John Police also declined to apologize to the pair.
“The Saint John Police has no further comment at this time beyond what was released in yesterday’s statement,” wrote Staff Sergeant Sean Rocca in response to questions from The Globe.
Sgt. Rocca said the force is still waiting to learn how the federal Justice Minister concluded a miscarriage of justice likely occurred in this case.
The men’s counsel, Jerome Kennedy of Innocence Canada, said the court’s apology is significant because it shows a willingness to acknowledge that mistakes were made and recognizes that steps can be taken to avoid this from happening again.
But what’s missing, he said, is an apology from the Crown and the attorney-general of N.B., which he said were swiftly offered in court last summer during the wrongful murder conviction case of two men in Winnipeg.
He said it indicates “a reluctance to accept responsibility and to acknowledge the mistakes that are clearly present.”
“It’s the absence of the apologies that to me is striking when I compare it to Winnipeg.”
Mr. Kennedy, who is also a former minister of justice for Newfoundland and Labrador, said the apology from Chief Justice DeWare was “very nicely received” by the two men, with whom he spoke by phone.
“Mr. Mailman actually seemed full of energy compared to the way he’s been feeling the last few months,” he said.
Mr. Mailman is battling terminal liver cancer and is expected to live only a few months. He has lost contact with his family, including his five grandchildren and two great grandchildren, because of the stigma of his murder conviction.
Mr. Gillespie’s only family is a daughter. Most of his family died in a house fire when he was 20 years old.