Ross Mackay, The Saga of a Brilliant Criminal Lawyer is great true-crime read for people who love Perry Mason’s courtroom drama and the Better Call Saul’s criminal subculture. Two murder trials were held in Toronto in the spring of 1962, only nineteen days apart. The accused man in each trial, one a pimp accused of stabbing a fellow pimp to death, the other a thief who killed a policeman in a shootout, were the last two men to be hanged in Canada. Toronto criminal lawyer Ross Mackay was the counsel for the accused in both trials, a mere thirty years old when he lost them both to the gallows. But the trials were far from the last times that Mackay defended accused murderers in the most horrendous circumstances. Author Jack Batten tells the story of Mackay’s dedication to the maxim that every man is entitled to a defence — a a story of Mackay’s courage and the harsh penalties he paid for the daring and controversial choices he made in life and in the courtroom.
About the author
Jack Batten practised law in Toronto for four years before turning to a life of writing. He has written for all the major Canadian magazines and is the author of thirty-three books including four crime novels. Five of his nonfiction books dealt with real-life Canadian lawyers, judges, and court cases; a biography of John Robinette was among these books. Batten's books have also dealt with sports, Canadian history, and biography. He has reviewed jazz for The Globe and Mail, movies for CBC radio, and still writes a column on crime fiction for the Toronto Star. His biography of Tom Longboat won the $10,000 Norma Fleck Award for best children's nonfiction in 2002, and the book is being made into a feature film. His most recent book is The Annex: The Story of a Toronto Neighbourhood, published in 2004.
Excerpt: Ross Mackay, The Saga of a Brilliant Criminal Lawyer: And his big losses and bigger wins in court and in life (by (author) Jack Batten)
The first words that Ross spoke in a courtroom in the course of the Lucas case were intended to stall his client’s trial. He was making his argument on March 26 at the case’s Preliminary Hearing before Magistrate Thomas Elmore in one of the courtrooms on City Hall’s first floor set aside for Magistrates. The Preliminary Hearing was pretty much exclusively Bull’s show, an occasion when the prosecution was required to present to the court just enough evidence to convince Magistrate Elmore to send the case on to Ontario’s Supreme Court for a full-scale trial in front of a High Court judge. But before Bull began his pitch to Elmore, Ross rose and argued his request that the Magistrate postpone the Preliminary Hearing for at least a month. Elmore, anxious to push the case along, wanted reasons from Ross. Why should Elmore take an urgent and widely publicized murder hearing off its fixed schedule? Why in the world would he make such an unlikely ruling?
Ross offered two arguments. He told Elmore he had taken over Lucas’s defence just two weeks earlier. He needed many more weeks to analyze the Crown’s case, interview witnesses, and build his defence. Elmore listened attentively enough, but when Ross finished, Elmore shook his head. The rush to trial might be tough on Ross, he said, but that wasn’t sufficient reason to bring the process to such a long halt. Ross would just need to work faster and harder. These weren’t Elmore’s exact words, but it was what he implied in ruling that the Preliminary Hearing would get along as scheduled.
Ross tried out his second argument on Elmore. He reminded the Magistrate, as if anyone in the criminal law business needed reminding, that a highly publicized Royal Commission on Crime was sitting during those very weeks, taking testimony and compiling files on the ever spreading and deeper penetrating volume of crime in Ontario. Ross’s point was that the Lucas hearing needed to be postponed until the air was cleared of the Commission’s unceasing chatter about murder and drugs and prostitution, much of it supposedly generated by American gangsters. It was media reporting of this sort that whipped up a public bias against the much put upon Arthur Lucas. Magistrate Elmore shook his head again. Nice try, Mr. Mackay, he said in effect. He ruled against Ross’s argument, and directed Henry Bull to call his first witness.
Preliminary Hearings were meant to be speedy and efficient, and Bull squeezed the Lucas case into one day, March 26, and most of the morning of the next day. Bull put more than a dozen witnesses on the stand. He began with Frank McGuire, the Post Office employee who discovered Crater’s body, and continued on through Michael Lundy, the manager of the Waverley Hotel who placed Lucas in Toronto on the night of the murders. Bull called several police officers from both Detroit and Toronto who had interviewed witnesses and uncovered such potentially meaningful physical exhibits as the battered Ivor Johnson revolver found on the Burlington Skyway.
Among the other witnesses, Bull drew testimony from Morris “Red” Thomas. Ross looked on Thomas as especially dangerous for Lucas’s cause, the only witness who tied Lucas into the drug trade and one of the two witnesses, along with Wesley “the Kid” Knox, who identified the Ivor Johnson revolver as Lucas’s gun. For the Crown, linking Lucas to commerce in drugs was, if not crucial to the case, then at least helpful in the extreme. According to the theory Bull and the cops were depending on, Crater was murdered to prevent him from testifying against Gus Saunders in the Saunders trial on drug trafficking charges in Detroit. It made sense to assume that the murderer, assigned to the killing job by Saunders, came from Detroit’s drug culture. Hence, the tighter Bull’s prosecution could fit Lucas into the world of heroin and cocaine, the stronger the case against Lucas grew. All of which made Red Thomas, as well as Kid Knox, key witnesses at the Lucas trial. Thomas was a guy Ross needed to cut down to size. (One irony in the connections of all the Detroit underworld characters was that, even without Crater testifying at the eventual trial of Gus Saunders in June 1962, the jury in the case found him guilty, and the judge thumped Saunders with a hefty sentence of twenty years.)
It was with Ross’s cross-examination of Thomas that he rang up a small success. Ross’s principal business during the Preliminary Hearing was, overall, to absorb the gist of the case Bull intended to make later in much more detail at the trial and, in particular, to take careful note of Bull’s list of witnesses. For the most part, Ross left the Crown witnesses alone throughout the Preliminary, not cross-examining them, just soaking up their answers to Bull’s examinations-in-chief and jotting down the occasional note of the answers. But when Thomas testified and brought up the subject of his supposed heroin-peddling expedition to Chicago with Lucas, Ross chose to take a whack at Thomas’s strength as a witness.
After Bull finished his questions for Thomas, Ross rose, gathered himself and got right into his cross-examination at Thomas’s most vulnerable point of attack. Ross read out in court the man’s spectacular record of criminal convictions, his list of sentences served for such crimes as possession of narcotics, parole violations and pieces of thievery. Ross asked Thomas if he recognized this wicked catalogue of transgressions? And did he think it reflected well on a witness who was asking to be believed in his testimony in court against another man? Thomas got fidgety under the persistence of Ross’s cross-examination. He retreated a little, moderating his testimony around the edges. He finally admitted that maybe he misremembered the Chicago trip, maybe Lucas wasn’t a participant in that particular drug deal after all. Thomas continued to insist that Lucas bought and sold drugs, though not during the time in Chicago. This was more than good enough for Ross. He ended the cross-examination and sat down. With the concession from Thomas, Ross had notched a confidence-lifting success, nothing colossal, but all successes counted for something.
Nobody who knew the stolid-faced Arthur Lucas would ever accuse him of giving in to fits of euphoria, but on the second morning of the preliminary hearing, he seemed unusually happy to see Ross. Lucas said he had very good news. Earlier that morning, he had spotted a familiar face in the corridor outside the prisoners’ cells in City Hall though he had no idea what the man’s name was. Lucas asked a duty guard to identify the guy Lucas pointed at. No problem, the guard said, the man Lucas was indicating happened to be a police sergeant by the name of John Fallis. Lucas told Ross he knew where and when he had seen Fallis before; it was in Wong’s Restaurant on Dundas Street early at breakfast time on November 17, the morning of the murders. Fallis was eating there, and he couldn’t have missed Lucas who was the only black man in the place that morning.
Ross had already pumped the waiter who served Lucas at Wong’s on the November morning, asking if he recalled Lucas ordering breakfast at seven or just after. If anyone could place Lucas in the restaurant around that time, the sighting could provide an alibi for Lucas at the moment of the killings or very close to it. But Ross drew a blank with Wong’s waiter. This waiter, a Chinese man who up until that moment spoke perfect English, seemed suddenly to have forgotten the language.
Now Ross had a second possible alibi witness. He approached Sergeant Fallis and explained his mission on behalf of his client. Ross wanted Fallis to testify for Lucas in court.
“I can’t help you,” Fallis said, giving Ross a dead-eyed look.
oss took a shot at making his argument one more time, but Fallis had already turned away. Ross gave in. Fallis wasn’t going to come to the aid of an accused murderer, a man Fallis’s fellow police investigators were all set to convict of the crime. Ross knew it was pointless to subpoena Fallis for an appearance before Magistrate Elmore. Fallis would only claim he couldn’t remember where he had breakfast that morning way back in November. He’d be as useless as the waiter.
The Preliminary Hearing ended on the morning of March 27 in just the way everybody in the courtroom expected it to. Elmore ruled that the case of Regina v Lucas would proceed to the Supreme Court of Ontario. The trial would begin on Monday, April 30, before Chief Justice James McRuer.
As Ross prepared for the trial, interviewing his client at the Don multiple times and in multiple particulars, he grew convinced that Lucas was presenting a totally believable account of himself in relation to the murders, something that could play well in court. Lucas struck Ross as no dummy. Though almost totally uneducated, he had an intuitive kind of intelligence that placed him several rungs above the “moron” category that the American prison psychologist had consigned him to years earlier. There was no hesitancy in Lucas’s recital of his story. Even better, the account Lucas gave Ross deviated not at all from the version he first told the Detroit Police Inspector, Russell McCarty, at the cop shop on Beaubien Street. Lucas wasn’t making the story up as he went along, trimming the narrative to fit new or changing facts. He had one version, and he repeated it exactly the same way each time he was asked to explain what happened at 116 Kendal Avenue.
Ross had his own theory to explain the events of the murder, its motive, execution and all other related factors and elements. There was nothing complicated about the theory, just an accounting that cast Lucas in the tale as an unwitting stalking horse. The theory began in the same place as the Crown’s story of the murders, with Gus Saunders’s need to remove Crater’s potential for testifying against him in the drug dealing case. But, as Ross reasoned things, Saunders had no idea where Crater and his prostitute girl friend were hiding out. The only person Saunders was aware of who stayed in touch with Crater was Arthur Lucas. Saunders cooked up a plot, putting a couple of his gangster heavies on Lucas’s tail when he set off on the drive on November 16 from Detroit to Toronto in Eloise Saunders’s Impala. The heavies hung in back of Lucas, trailing him as he led the way to 116 Kendal. They waited outside the house until Lucas finished his hours of drinking and planning with Crater and Newman, and finally left the apartment. With Lucas out of the way, the heavies went into the Kendal apartment where they stabbed and shot the pair inside. The bloody assignment carried out, they scrammed back to Detroit.
Ross developed an adjunct to his basic theory, an addition to his account of the murders that might be the ultimate persuader of Lucas’s innocence. The way Ross looked at the huge volume of evidence that the cops had gathered in the case, the killer or killers must have been efficient, ruthless and anonymous. But Lucas was none of those, not in relation to these murders. Anonymous? Just the opposite, Lucas was all too visible and identifiable. On the day of Crater’s and Newman’s murders, Lucas plastered his name all over Toronto. He signed it on the Waverley Hotel’s register, on the Waverly’s record of phone calls from the hotel to 116 Kendall Avenue, on another phone call on the same early morning from Kendall Avenue to Lucas’s duplex in Detroit. If he wasn’t making phone calls in his own name, then he was putting in appearances in person, as he did when he paid the thirty cent phone charge for two calls at the Waverley early on the Friday morning. What sort of assassin did these highly visible and traceable transactions make Lucas out to be? Just about the most careless assassin anyone could imagine. The cops were claiming that the actual killing of Crater and Newman, the slicing of their throats, must have been carried out by an expert in the arts of murder, but how could such an adjective as “expert” be applied to a man like Lucas who left clues to his identity strung out everywhere in his wake.
Ross had no independent evidence to support the notion of Lucas as a supremely inefficient villain, no witnesses who could testify from their own knowledge of Lucas as a dunderheaded murderer. But the facts of the case as the Crown put them together indicated by themselves that Lucas was no smoothie in the role of the imagined killer of his two friends.
Ross wasn’t obliged, as counsel for the defence, to present an alternate theory of the murders, but it was straightforward enough for him to offer a different interpretation of the established facts. Overall what Ross intended to do in defending Lucas was to pick whatever holes he could find in the Crown’s case, then put Lucas on the witness stand and steer him through the story that the man had been telling so consistently and persuasively all along. Ultimately, as a final fillip, Ross would argue, weird and perverse as it might sound, that Lucas was too inept to fit the role of accomplished hitman.
The prosecution lavished forty thousand dollars on the case it compiled against Lucas, a sum that would bring a staggering 54 witnesses and 105 exhibits into the courtroom. Compared to this massive operation, Ross ran a stony broke defence. Though he was officially handling Lucas’s case as an agent of the province’s Legal Aid system, Legal Aid was as yet unfunded and provided no backup support in any form. Ross had no source of cash, and he knew he would likely emerge from the case even more destitute than he was when he took it on. Nevertheless he planned his defence on the scale he knew it required, developing ideas for witnesses as if he could actually afford the ideas and the witnesses. This was an approach that inevitably slammed him into disappointment and disillusion.
Typical of Ross’s poverty-stricken defence, his intention to call Paul Brown as a witness collapsed in fiasco. Paul Brown was the Cleveland pimp, a witness who might verify Lucas’s presence in the city on the Friday morning of the murder. Even though the two men never managed to hook up, Paul Brown might at least testify to an arrangement Lucas had made to call on Brown. Ross could make valuable use of Brown, but he had no funds to hire a lawyer or an investigator in Cleveland to locate the man on Ross’s behalf and ask him some questions. For sure, Ross couldn’t afford to drive to Cleveland and spend his own days searching for Brown.
Ross settled for working the long distance phone lines. But locating a black guy named Brown in the fairly populous city of Cleveland? An underworld figure? A pimp? A man who might not care to involve himself in a murder trial in Toronto? Ross realized the whole idea was pretty much preposterous, but he took a crack at getting Brown on the line. In phone calls more hilarious than helpful, Ross hit a bunch of dead ends in his run through the “P. Browns” in the Cleveland phone book. As far as Ross could tell, he never came close to reaching the man in person.
Even more desperate and almost as risible was Ross’s last minute trip to Detroit in search of a few words with any witness who might be available, Wesley “the Kid” Knox for one essential example. The date was Saturday, April 28, two days before the trial opened. Ross drove a car he borrowed from a man named Russ Castle who ran a bootlegging business out of his house on Spruce Avenue in Cabbagetown, a working-class neighbourhood on Toronto’s east side. Castle was a large gregarious guy, a flashy dresser who wore glittery rings and paid his dentist a fortune to insert a diamond in one of his upper front teeth. Castle made booze available at outrageous prices by delivery on any day at any hour. He wasn’t a man normally given to acts of generosity, but he allowed Ross to help himself to the Castle vehicle because Ross was a devoted customer. Castle knew he would earn from Ross’s regular booze purchases more than whatever the cost of lending the car amounted to.
In Detroit, driving through areas of the city where Ross’s was the only white face for blocks, things seemed to be breaking his way. Lucas had supplied him with a Detroit contact, yet another man named Brown, Joe Brown in this case, and Joe Brown followed through by not only keeping his appointment with Ross but leading him to Wesley Knox. The potentially revelatory meeting took place at a bar for a black clientele called the Twenty Grand Club.
Without the need of much analysis, Ross caught on right away to two things about the Kid. One, he was already drunk, and, two, he was in a cheeky frame of mind. Or maybe cheeky was the Kid’s perpetual state of existence. Nevertheless, Ross quizzed him relentlessly on the subject of Knox’s crucial identification of the Ivor Johnson handgun that the cops found below the Burlington Freeway. The Kid swore the gun was identical to the revolver Lucas kept under his mattress. Ross told Knox his memory had holes in it, that Lucas’s gun was actually a snub-nosed revolver with a white handle. Knox wavered a little, but ultimately refused to give up his position. Ross, the Kid and Joe Brown closed the bar that Saturday night and met again Sunday afternoon on Joe Brown’s front porch. The Kid, still drinking, still drunk, stuck cheekily to the same story.
By then, Ross felt sure that Detroit’s black underworld was hanging Lucas out to dry. Whether or not Gus Saunders, the drug kingpin, was still in the picture or not—he probably wasn’t, not after the courts ordered him held on a high-figure bail while he waited for his own trial—it was better all round for Detroit’s drug scene if Lucas took the fall for the murders in Toronto. That left the rest of the city’s dealers to operate in a more relaxed and orderly atmosphere. When Ross speculated along these lines, sitting with Joe Brown on the front porch, Brown confirmed that Ross had correctly nailed the continuing state of Detroit’s drug affairs. Brown told Ross about James Spencer, a man whose name Ross recalled from conversations with Lucas. Spencer was the man who stayed at Delores Chipps’s apartment on the day and night after the Detroit cops arrested Lucas. Spencer told Joe Brown that he saw nothing supposedly left behind by Lucas in Delores’s apartment, no bloody clothes, no handgun, nothing else that might have incriminated Lucas in somebody’s murder. Spencer had that kind of first-hand information, but he made it clear to Joe Brown that he was damned if he was going to testify in some Canadian court about what he knew. He refused even to speak to the white boy lawyer who had come to Detroit looking for witnesses.
Though Ross was enlightened by the information from Joe Brown, he had run short of time to chase after James Spencer. He had to be on his way back to Toronto. He climbed into Russ Castle’s car, and when he arrived at Castle’s Cabbagetown home several hours later, the day had already turned into dark night. The trial of Arthur Lucas would begin in just twelve hours
“Lawyer-author Jack Batten immediately captures the reader’s attention in identifying the demons facing Ross Mackay, a superb and committed counsel dedicated to justice but plagued. Batten leaves no stone unturned in his research and his highly readable account of Mackay’s struggle and its outcome.” — Hon. John C. Major QC CC, Retired Justice of The Supreme Court of Canada
“A compelling and insightful chronicle of a brilliant, eclectic and charismatic maverick. With his impeccable eye for detail, Jack Batten has also captured the temper of the times—when the collegiality of the ‘bar’ referred to a place not a profession and when the road to respectability for most criminal lawyers remained challenging. Despite the roller coaster of his life described with candor and compassion, it is Ross Mackay’s unfailing dedication and steadfast commitment both to his clients and to justice for all which will remain his lasting legacy.” —Brian Greenspan, Criminal Lawyer, Greenspan Humphrey Weinstein, Toronto, Ontario
“When tragedy hits the gifted, the loss is hard to explain. But Jack Batten succeeds. He marries journalism and law, meticulous fact-driven research, to give us this riveting book on the talented Ross Mackay, who flew too close to the sun.” —Hon. Nancy Morrison, Former Judge of The Supreme Court of British Columbia
“An excellent and easy read for anyone interested in Canadian legal history. Ross Mackay was an exceptional criminal lawyer, who has the dubious distinction of representing the last two persons to be executed in Canada for murder. As the book correctly shows, his personal demons, which the pressures of those two cases exacerbated, never impaired his interest in the human condition, his empathy for his clients nor his unflagging desire for justice.” — John Rosen, Rosen & Company, Barristers, Toronto, Ontario.