Forcillo: A Predictable “Compromise” Verdict


The case of James Forcillo, the Toronto police constable who shot 18-year-old Sammy Yatim a total of eight times while the latter stood on an empty streetcar on Dundas St. W. while holding a knife during the early morning of July 27, 2013, has dominated the news.

After an intriguing trial, which heard from a number of witnesses, including Constable Forcillo himself, and six days of deliberations, the jury came back with a verdict: not guilty of second-degree murder, not guilty of manslaughter, but guilty of attempted murder.

The attempted murder charge itself was a late addition by the Crown. At the time, the very unorthodox move puzzled legal experts (http://www.theglobeandmail.com/news/toronto/attempted-murder-charge-in-forcillo-trial-continues-to-puzzle-legal-experts/article20781864/).

It turned out to be an ingenious strategy by the Crown—that is, if we, as popular opinion would seem to suggest, view the Crown’s role in a case such as this as primarily attempting to maximize the likelihood of securing a conviction. (As I have written before, I believe that lawyers—from both the Crown and defence—must guard against converting the adversarial nature of the criminal justice system into a game: http://www.londoncriminaldefence.com/getting-carried-away-factors-that-can-lead-to-miscarriages-of-justice/.)

The introduction of the lesser—though still quite serious—charge of attempted murder offered the jury a bit of a cop-out (no pun intended) and also increased the chances of Forcillo being found guilty of something. After all, in many instances that involve some form of negotiation, the final result ends up somewhere in the middle of two extreme positions (in this case, a life sentence or no punishment whatsoever).

The Crown in this case essentially adopted a strategy—referred to as a “shotgun defence” or “shotgun approach”—often used by defence lawyers. When used by defence counsel, this strategy involves putting forward a number of different defences or explanations in response to the charges. In many cases, the different possible defences proffered may seem to be in conflict with each other (which is often a significant risk to using this approach). However, the theory goes, as long as one defence sticks (or raises reasonable doubt), that should be sufficient to result in an acquittal.

Here, the Crown laid charges (second-degree murder and attempted murder) that, in the circumstances, were in congruent with each other. It is very difficult to envision an outcome in which Forcillo would have been found guilty of both second-degree murder and attempted murder.

Effectively, the jury had the following options:

–find Forcillo guilty of second-degree murder;

–find Forcillo guilty of manslaughter;

–find Forcillo guilty of attempted murder; or

–find Forcillo not guilty

(Although there were more possible outcomes than those I have listed, I have decided to focus on the most realistic ones.)

As this excellent article by Wendy Gillis and Alyshah Hasham outlines:

[T]he jury of seven women and four men found the officer guilty of attempted murder—a verdict only made possible by the Crown’s decision to split the total of nine shots by Forcillo into two separate charges… 

It became clear at trial that the new charge was added due to forensic evidence revealing the fatal bullets had struck Yatim during the first volley of shots. Those first three bullets — two of them to the chest — “fatally damaged” Yatim’s heart and severed his spine, according to the Crown. A third one fractured his right arm.

 The other bullets — five of the six struck Yatim — hit his abdomen and groin when he was already on the floor of the streetcar. None of those shots caused fatal wounds, though Yatim was minutes away from dying.

 The jury’s verdicts mean they believe, or were left with reasonable doubt, that Forcillo was justified in fatally shooting Yatim with the first three bullets. Or that he was acting in self-defence in response to a threat.

 However, they found what happened five-and-a-half seconds later was not reasonable or necessary. (http://www.thestar.com/news/crime/2016/01/25/mystery-charge-only-one-that-sticks-in-sammy-yatim-slaying.html)

 Of course, at first blush, finding Forcillo guilty of attempted murder but not guilty of murder itself in the shooting death of Yatim seems like a bizarre outcome. Essentially, Forcillo was determined to be guilty of attempting to murder Yatim but was unable to make good on his attempt to kill Yatim because Forcillo had already killed him (or, rather, caused Yatim to suffer fatal injuries).

But if you cease to view the nine shots (the eight that struck Yatim and the one that missed) fired as one “transaction” and break them into two separate volleys, as the Crown made possible through the addition of the attempted murder charge, the verdict makes some sense from a legal reasoning perspective.

Had this been the final verdict in a judge-alone trial, the verdict would have without a doubt been accompanied by a very thorough, thoughtful, and detailed written decision, in which the judge would have outlined all of his or her thoughts, interpretations, and determinations.

But of course, this was a judge and jury trial. Although the judge is responsible for providing jurors with instructions and guidelines, the jurors themselves ultimately hold the power here. And they do not have to explain themselves to anyone. In fact, they are prohibited from doing so.

So, did the jurors (none of whom are lawyers) have a firm and comprehensive grasp on the legal doctrines and intricacies at play in such a complex case as this?

Or, out of reluctance to find a police officer guilty of murder, did they simply come to this result as a compromise—especially as a deadlock may have been setting in after six days of deliberations?

We will never know. Only 11 people on the planet know the answer to that question.

The main problem with jury trials is the complete lack of transparency—including a total absence of justifying reasons—vis-à-vis the decision-making process. The lack of a written decision justifying the verdict can also make an appeal very difficult in some cases, as lawyers are largely left to target the instructions given to the jury and decisions made by the judge with regard evidentiary and procedural rulings.

It is unfortunate that the Crown did not consent to defence counsel’s request for a judge-alone trial. Although the outcome would have been less predictable, had this been a judge-alone trial, we would have the benefit of justification for the ultimate decision in the case.

At present, all we can do is speculate as to the reasons for the verdict. Is that really justice?

 

Apparently, in Canada, it is.

 


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.