Convicted of murder, man allowed to continue suing ex-prosecutor
A judge has refused to grant a stay in a convicted murderer's lawsuit against a former Crown prosecutor and the Saint John police force.
Erin Michael Walsh, 59, was convicted of the slaying of Melvin "Chi Chi" Peters in 1975.
Walsh, who has maintained his innocence in Peters' death, is seeking $50 million in damages for the alleged deliberate attempt to suppress evidence.
In July, Walsh filed a civil suit against William McCarroll, now a senior judge in Saint John, who was the Crown prosecutor in the case. The suit also names all the chiefs of police in Saint John between 1975 and the present, the RCMP, the province and the Attorney General of Canada.
McCarroll's lawyer, David Young, asked the Court of Queen's Bench in Saint John to stay the lawsuit because Walsh's case is also under federal review.
Courts have also long ruled someone found guilty in criminal court cannot use the civil system to try to overturn a verdict because the level of proof required in the two systems is different and should not be mixed, Young said.
After reserving decision in December, Justice Stephen McNally has now allowed Walsh's civil suit to go ahead.
"I think the judge just wasn't persuaded there was enough circumstantial evidence to support a stay of proceeding in that kind of situation. So we're very happy with that," said Walsh's lawyer, Gus Camelino.
Camelino said he hopes proceed with the case by February.
Walsh, who has a long criminal record, was travelling from Toronto when he arrived in Saint John in August, 1975. He ended up drinking with a group that included the victim at a beach in the south end of the city. When later leaving the area, a struggle took place in a car, a shotgun went off and Peters was killed.
According to Walsh, he has documents from a 2005 access to information request that indicate evidence not revealed during his trial would have supported his defence and may have resulted in him being found not guilty.
The documents indicate police overheard a jail cell conversation between two people Walsh was travelling with suggesting one of them had committed the crime. But the conversation was never admitted into evidence during the trial.
At the 1975 trial, one of the men involved in the conversation testified against Walsh, adding to the evidence that was used to convict him of second-degree murder. He was handed a life sentence.
Walsh was granted day-parole in 1984 and full parole in 1986. But a string of crimes has seen him in and out of prison since that time. He is currently out of jail on compassionate parole, after being diagnosed with colon cancer in March.
Camelino said that Walsh's inoperable cancer may have contributed to the judge's decision to allow him to have his day in court.
Under New Brunswick law, if Walsh dies before the end of a civil case, his estate won't be entitled to any compensation.