Chapter One

The End of the Beginning

How can you defend someone you know is guilty? As a criminal defence lawyer, especially one who looks after penitentiary inmates, it is a question I hear often. In most cases, I simply reply that I never ask whether a person is guilty or innocent. After all, proving innocence is not my job. There is a constitutional right in Canada and in the United States to be presumed innocent unless proven guilty beyond a reasonable doubt before a court of competent jurisdiction—not the court of public opinion. It is the prosecution’s responsibility to prove guilt beyond a reasonable doubt. At the heart of the question, however, is an ethical dilemma: Am I not supportive of criminal activity if I provide excuses as to why criminal activity took place?

What follows is the true story of Terry Fitzsimmons, which was told to me by Fitzsimmons himself. It is also my recollection of the thought processes that I endured while acting on Terry’s behalf. It’s my answer to the question of how I can defend someone I know is guilty.

Behind Locked Doors

Nobody knows what goes on behind locked doors. That is especially true in the historic and picturesque city of Kingston, Ontario and in the Kingston Penitentiary, located on the shores of Lake Ontario. Built in 1835, there have been daring escapes, riots, and even a visit from British author Charles Dickens. It was not the exciting times for which the prison was appreciated; it was the drudgery in the day-to-day lives of the two hundred to four hundred men and the custodial staff behind locked doors, many in solitary confinement.

It came to pass that on March 30, 1995, a male correctional officer made his hourly rounds on an upper tier, expecting to see nothing out of the ordinary. His flashlight discerned the lifeless body of a young, caged man. A call went out to other guards that the cell occupant had “strung up.” Nothing had alerted staff that an inmate had decided to kill himself. Indeed, it would have been rare for such an intention to have reached staff. Every institution has a Preventive Security Officer whose job it is to collect and ascertain the validity of rumours, but the system breaks down when those rumours are not spread.

The dead man was Terry Fitzsimmons. He was wearing the typical inmate garb: blue shirt, jeans, and running shoes. He was 31 years old but looked younger than his calendar years. His brown hair was cut short, close to the scalp (as he had worn it since shaving his head two years previously). His body was short and compact, well-defined from years of lifting weights. His clothing was never disheveled in life or in death. Although Terry believed he did not care about much, he was meticulous in ensuring that he was clean and dressed as neatly as possible. He was also clean-shaven. He sported a neatly trimmed beard at one point in his life, but it too had been removed at the time he shaved his head and he made no attempt to regrow facial hair. Since returning to Kingston Penitentiary, Terry had no plans whatsoever for the future. Starting a beard would be just an excuse to live longer. He had no intention of doing that.

Most people put up a struggle even while attempting suicide. Not Terry. He had a mission, and he was out to achieve it. In fact, the whole procedure had not taken long. He made a plan as he always did—just wait until an officer passes by while doing his rounds and then secure a cord that he had pilfered from maintenance snuggly around his neck and kick the storage trunk out from beneath him. He tried with all his might not to make a sound, but a loud gasp was inevitable. He had planned it to go smoothly, but his legs flailed about in search of a solid surface. His hands grasped inadvertently at the ligature around his neck but it was so tight he could not squeeze his fingers between his neck and the cord. Suddenly, all motion ceased. He had taken his last breath. He had taken his fifth life: his own.

An emergency response team arrived within an hour of the notification of the incident. Terry’s body was cut down. Some perfunctory attempts were made at resuscitation, to no avail of course. Just as quickly, medical staff were called and promptly made it official. Terry died from a self-strangulation. There was nothing more to do but to remove the body and have the Warden’s staff prepare an official media release and contact next of kin. That would wait for normal business hours.

Inmates with cells on the range (the common area viewed from individual cells) are certainly aware of when there is an episode taking place. No one needs to be briefed on any occurrence. When staff move in groups larger than two and spend time at a cell where no yelling or fighting is heard, one just knows that a fellow inmate has strung up. Terry had been in a single cell. Sometimes when inmates are ‘double-bunked’, meaning two to a cell, voices are raised, and yelling precedes a possible inmate-on-inmate assault. Most everyone on the range has had experiences when one inmate has taken a ‘shiv’ to another, even if a stabbing does not occur. But there was none of that.

A Death and an Inquest

Since his return to custody, Terry had been sullen. He had not engaged frequently with others. He had kept pretty much to himself. The other inmates knew full well what had happened and the body bag that passed their cells merely confirmed their suspicions. There was no sadness and there were no tears. Terry had gone the way he wanted to go. Nobody even asked why.

The body was taken to the makeshift hospital where medical staff could complete a full inspection. That was necessary. The guards were all required to complete an Incident Report. Words of resentment were spoken about the paperwork that was incited by the dead inmate’s act.

Whenever a death occurs in a state-run facility, an inquest is mandatory in Canada. All paperwork and medical staff notes would be turned over to the coroner. That would be the procedure in the case of Terry Fitzsimmons. The prosecuting Crown Attorney in Kingston would be advised. Another medical doctor would be appointed to preside over a coroner’s court, and five jurors who by and large were ignorant of prison practices and procedures would be summoned and asked to make recommendations as to why such an incident happened and what steps, if any, could be taken to prevent such steps from reoccurring. The findings would be published and sent off to the government ministry responsible for corrections. There are procedures for this. All procedures would be followed as laid out in the Commissioner’s Directives, the rules formalizing the day-to-day operations of Canada’s prisons.

My office received a telephone call from the Warden’s secretary the next day. My assistant was told that Terry Fitzsimmons had taken his own life and that a memorial service at the prison would be held at some time in the future so other inmates could attend and show their respects. No future date was mentioned. No notification was left as to how the body would be transported or who would be in charge of a burial or cremation.

I knew Terry’s parents lived in the London, Ontario area but I did not know if Terry had contacted them after his return to prison for the last time. From a call I had with Terry’s mom and dad two years previously, I assumed they wanted nothing to do with him. I had hoped they had come to a reconciliation, but I seriously doubted it.

The suicide rate in Canadian prisons is six to seven times that of the general population. In the United States, the rate is generally four times higher. Suicide is the leading cause of unnatural deaths of federal inmates. In any given year, suicide makes up twenty percent of all deaths in custody. Nonetheless, the Correctional Service of Canada vigilantly denies that its treatment of prisoners, including its use of solitary confinement, accounts for these statistics.

It may well be that prisoners with suicidal ideation are more common than in the general population because both Canada and the United States have closed down psychiatric institutions. The result is that many of those who would formerly have institutional psychiatric treatment wind up in the correctional system. But could it be that the prisons and the ways prisoners are treated creates mental disturbance?

There was never a doubt in my mind that Terry Fitzsimmons was a deeply flawed individual. As a youth he had sought out the respect of his peers and rejoiced in the admiration of those around him, even though what they were cheering on was criminal behaviour. He was prone to substance abuse even before he first became known to police. Once he breached parole and committed drastic crimes, he was vilified in the press. But was he the monster that the Toronto media made him out to be? Or had that designation of “monster” been my own doing?

In life, Terry used me for his own purposes; I used Terry. I had been hell-bent on getting recognition that solitary confinement was wrong. There had been great work already done on building a legal basis to challenge the use of solitary confinement in court, and there would be even greater steps taken in the future. Terry died. He could not be counted on to assist in the challenge further. I had worked on his case, and he had been at the top of my mind for almost two years. Yet I had to admit I really felt nothing, or at least I was able to repress my emotions. I was a prison law lawyer. I also handled high-end criminal cases like murder and major drug conspiracies. There are, of course, boundaries that all professionals must keep by constantly reminding clients (despite an intense personal involvement in the clients’ lives), “I am your lawyer and not your friend.” Yes, I had gotten to know Terry and despite his crimes, I had come to like the man. But my professional obligation was to let it go. Professionalism requires that one maintain boundaries. Yet Terry had wanted his story told. He had talked openly with a reporter for the Globe and Mail before his death.

Terry had made a plan and I knew, without specifics, that it would end this way. I already knew I would not be attending the memorial service at the prison chapel; I also knew I would not be attending the inquest. But I recognized that Terry had given me a hell of a ride, and I had fun.

Earlier Facts About Me, John L. Hill

I didn’t start out as a criminal defence lawyer. I hadn’t started out to be a lawyer at all. I was the first in my immediate family to attend university. I enrolled in political science and stayed on to complete a Master’s degree in Politics with a strong recommendation from my faculty advisor to complete a Ph.D. program at an American university. However, my housemate, while living off-campus, wanted to be a lawyer and was about to take the LSAT exam before applying. He promised his girlfriend would provide a roast beef supper if I were willing to take the test alongside him. Who would turn down a home-cooked meal? I agreed to take the test as well. When I got the LSAT results, I found I ranked in the top
five percent of all those taking the test. My plans abruptly changed. I was off to law school.

My parents were pleased with the change of plans. I had never known my parents to hire a lawyer and they really had no business sense as to what my long-term goal would be. My only recollection of my parents talking about law was when my father would refer to a tragic murder of a young girl abducted and killed after stepping off a school bus in Grafton, Ontario, a neighbouring village. My father never named the assailant. He probably never knew the name. The individual was referred to in our household only as “the guy who killed the little girl in Grafton.”

It was troubling, therefore, when I advised my parents that I had turned down a job offer in 1974 from the firm that had hired me to do my articles of clerkship (at the time a mandatory one-year apprenticeship prior to completing the Bar Admission course). The offer was to hire me with the firm to do corporate-commercial law. Rather, I wanted to be a litigator.

The day after completing the six-month bar course and being called to the bar, I rented space above a real estate agency in London, Ontario and started my own practice. I concluded rapidly that I did not like the work that is bread and butter to most small firms, real estate transfers and wills and estates. Instead, I found a niche: representing patients at the nearby
St. Thomas Psychiatric Hospital.

I represented and secured the release of a woman who saw herself as a male and who had murdered a cabbie in Toronto to secure his genitals. She then Krazy-Glued these genitals to her vagina to convince her girlfriend’s father that she was really a man.

Stories like this did little to assuage my father’s regret that I was throwing away the opportunities he never had growing up in the Great Depression and serving in World War II. Most assuredly he resented it when I told him about my most-recent client at the psychiatric hospital whom I simply called “the guy who killed the little girl in Grafton.”

“I hope you lose!” was his only comment.

Besides my involvement with this type of client, I handled other criminal cases and became comfortable arguing clients’ cases before juries. In the first few years of practice, I landed defence of my first murder trial, an experience seldom encountered by someone so fresh out of law school.

My other preoccupation was my involvement with the London Humane Society. In my initial years in practice, I had married a woman from London and acquired a dog. Not content to lead a simple home life, hours at work in the law practice were matched by my work on the board of the LHS and ultimately becoming president of the operation.

It was revealing to me how similar it was seeing dogs ripped apart from their homes and transferred to cages and seeing men and in some cases, women, cast adrift from their families to endure excessive periods of being locked away.

But my time away from home was costly. In March 1985, after only a few years of marriage, my wife and I decided to separate and ultimately divorce. On the same day we had agreed to separate, my business partner announced his leaving to take a corporate job on the east coast, and my legal assistant tendered her resignation.

Everything I had worked at to develop a practice seemed lost. I was depressed and staring at my desktop early in the afternoon when the phone rang. I answered it. It was Professor Ron Price at Queen’s University.

“We’ve been hearing of the work you’ve been doing at the St. Thomas Psychiatric Hospital. Is there any chance we could lure you away from private practice to join us on faculty at the law school to head up our Correctional Law Project?”

Professor Price gave a brief description of the work involved; I would be teaching up to a dozen second- and third-year law students and overseeing their clinical involvement with federally incarcerated prisoners.

“I know you’ll need some time to think this over. Could you get back to us within a week?”

Not to show my desperation, I agreed to a callback before the week was out.

Within the week I was able to sell my firm and list my house in London. There were good people at the Humane Society who would carry on so that was of little concern. One board member commented that now I will be able to look after people and not just animals.

Humane treatment of all living creatures had become my passion.

I was excited about the prospect of moving and starting a new career. I was looking forward to involving myself with prisoners. Little did I imagine that while I was readying myself for a move to the city of Kingston, inmate Terry Fitzsimmons was preparing to leave its prison. In less than a year, on July 20, 1986, Terry Fitzsimmons would be involved in an incident that not only would preclude his release but also would lead him into years of brutal solitary confinement. It was an incident that ultimately would bring the two of us together. My drive to see all humans and animals treated fairly would be put to the test.