What Happened to Mickey?. Peter McSherry
end, Jack McDermott pointed accusingly at Mickey and emphatically charged, “He was the gunman.”[13] A few seconds of silence followed, during which Mickey stared coldly at his accuser.
After McDermott’s testimony, Magistrate Browne announced, “I have heard sufficient evidence to commit the accused for trial.”[14]
This got both Isadore Levinter and Frank Regan to their feet in protest.
The purpose of the preliminary hearing, of course, was to determine whether or not there was a strong enough case against the MacDonalds to send them to trial. This meant, in the matter at issue, that the Crown had to disclose enough of its evidence before an inferior-court judge or magistrate for that trier of the facts to determine that there was, in substance, a case that might reasonably result in a conviction. Both the Crown and the defence lawyers surely recognized beforehand that committal of the MacDonalds for trial was a virtual certainty. In such circumstances, in a day when nothing like full disclosure of the evidence was required, for the lawyers representing the brothers the preliminary hearing was very much an opportunity to discover as much as possible of the Crown’s case — and, further, to discover anything else that the Crown might not want the defence to know. Thus, Frank Regan and Isadore Levinter necessarily saw the preliminary hearing as an opportunity to “go fishing” — and, so, they demanded that it continue.
And that, for two more days, was what Magistrate Browne grudgingly allowed to happen. The lawyers for the MacDonalds then called a parade of witnesses who at the impending trial were most likely to testify for the Crown, if they were going testify at all. These included the other four eyewitnesses to the murder and a long line of policemen. The hearing finished at seven minutes after noon, Wednesday, March 15, abruptly, on a farcical note, after a detective of the police identification bureau failed to appear as expected by Mr. Levinter. The reason the detective was not there, smirked James McFadden, was that his subpoena had been wrongly dated for March 12, 1940. The court spectators couldn’t help but laugh. Then Levinter attempted to call another detective, who wasn’t there either. His subpoena had been wrongly dated, too.
“That settles it then. I have no witnesses before me,” announced Magistrate Browne. “The accused are committed for trial.” Then, amidst much lawyerly protest, His Worship straight away got up and disappeared through a door behind the bench.[15]
CHAPTER NINE
With Convincing Sincerity
and Evident Forthrightness
(March 20, 1939–May 18, 1939)
On March 20, Attorney General Gordon Conant asked Cecil L. Snyder, the senior counsel in his department, to personally handle the prosecution of the MacDonald brothers for the murder of James Windsor. This was significant. Cecil Snyder, as remembered by Gwyn Thomas, was “the most successful Crown prosecutor in the history of Ontario.” By the time of his retirement from criminal law in 1947, in 38 murder trials, said Mr. Thomas, Cecil Snyder had failed to get a conviction only once.[1] At the time of the trial of the MacDonalds, he was as yet unbeaten. Notably, he had previously helped at least two of Frank Regan’s former clients to the gallows.[2]
As both the MacDonalds were “entirely without funds,” the Department of the Attorney General effected its then standard procedure in capital cases. The defendants were allowed to choose their own representation and the department paid their lawyers, Frank Regan and Isadore Levinter, $50 a day for their time in court, not to exceed $400 each. All of their costs came out of that. It would seem to have been a system that generally made for murder trials that were not overly long.
Isadore Levinter would have liked to have obtained a severance of Alex’s trial from Mickey’s, freeing Alex from the taint of his brother’s criminal reputation, but this was not possible. As well, Mr. Levinter apparently had to make the brothers’ parents understand the danger in trying to provide separate alibis for both Donnie and Alex, as Maggie MacDonald had indicated family members would do at the time of her sons’ arrests.[3] This might have gotten Alex unnecessarily hanged. On the witness stand at the impending trial, Mickey’s mother would say not a word about Donnie being on the telephone with his father at the time of the murder, as she had previously maintained he was, and a sad-faced Alexander MacDonald Sr., unasked, very pointedly stated, “I have no alibi for my son Donald.”[4]
Then there was the problem of Mickey’s wife.
Kitty was as unreasonably stubborn as anyone could be, she had little sense of consequences, and she just had to have as much attention as there was to be had. After the brothers were arrested, the family, instructed by their lawyers to say nothing to the press, had to shut Kitty up at 3 Poplar Plains Road to stop her talking. Then she took to shouting at the reporters from a third-floor window. If not right then, then eventually, she wanted to be part of Mickey’s alibi, to testify they were together at The Corner at the time of the murder.[5] The lawyers would have none of it. If Kitty had been allowed to go into the box, the Crown would have had the right to cross-examine her on her police record — and that would have meant the jury would have repeatedly heard the word “prostitute” applied to Mickey’s wife. The result would have been that Mickey would have been seen as a pimp, or as something very like a pimp, which would have greatly promoted the hanging of Mickey and Alex both. As it was, the jury likely had rumour of this anyway, but they did not have to consider it as established fact or as part of the evidence put before them.
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