The trouble with juries


On June 17, after a headline-dominating trial lasting nearly five months, Dellen Millard and Mark Smich were both found guilty of first-degree murder in the killing of Tim Bosma. (https://www.thestar.com/news/crime/2016/06/17/verdicts-in-tim-bosma-murder-trial.html)

 

“Cheers and applause erupted” after the verdict was made public. (http://www.cbc.ca/news/canada/hamilton/news/tim-bosma-trial-verdict-1.3634213) The “most liked” comment, written by “Jason Tremblay (JasonDiggy),” under the CBC article covering the verdict reads: “My faith in the Canadian justice system is restored.” The next two most popular comments congratulate the jurors—not for their service, but for the outcome of the trial. (http://www.cbc.ca/news/canada/hamilton/news/tim-bosma-trial-verdict-1.3634213)

The slaying of Mr. Bosma has been in the news since 2013. Both Mr. Millard and Mr. Smich were found guilty in the court of public opinion—to which “evidence” was presented through the news media—long ago. To many members of the public, the result of the actual criminal trial was a foregone conclusion: Of course they were guilty.

 

I’m not suggesting that I think the ultimate outcome was incorrect in this case. That, quite frankly, is not my point.

I’m concerned about the reasons—rather, the lack of reasons—for the findings of guilt for both Mr. Millard and Mr. Smich.

 

No one—aside from the jurors themselves—will know why the two accused individuals were found guilty of first-degree murder. Investigating officers, Crown Attorneys, defence lawyers, the presiding Justice, members of Mr. Bosma’s family, the media, members of the public, and the accused individuals themselves are all in the same boat in that none of them are privy to an explanation for the verdict.

There are a few points to consider. Firstly, during the trial, the jury was provided with some “bad character evidence” (previous criminal behaviour, in particular) about both accused individuals. (http://www.theglobeandmail.com/news/national/judge-to-instruct-jury-in-bosma-murder-trial/article30389351/)

Secondly, during closing arguments, Crown Attorney Tony Leitch directed the following comments to the jury: “When you retire to consider your verdict, don’t forget about Tim, who is not here to tell you what really happened.” (http://www.cbc.ca/news/canada/hamilton/news/bosma-justice-charge-jury-1.3628286)

Finally, there was a perceived implication from comments from Mr. Smich’s counsel that jurors could impute guilt from Mr. Millard’s decision not to testify in his own defence. (http://www.theglobeandmail.com/news/national/judge-to-instruct-jury-in-bosma-murder-trial/article30389351/)

 

“No accused can be convicted based on the emotion or sentiment on the victim or his or her family,”

 

Justice Andrew Goodman, in his charge to the jury, did everything he possibly could to ensure that these three issues did not impact the ultimate verdict. As per Liam Casey’s article:

Goodman cautioned the jury not to use “bad character evidence”—such as the pair’s previous thefts, drug use or Smich’s criminal record—as a reason for guilt. The judge said such evidence can only be used to evaluate each man’s credibility and reliability.

 The judge also told jurors to disregard comments that Crown attorney Tony Leitch made in his closing argument when he said Bosma should not be forgotten.

“No accused can be convicted based on the emotion or sentiment on the victim or his or her family,” Goodman said.

 The judge also said the jury shouldn’t consider Smich’s lawyer’s comments about Millard not testifying in his own defence because that is Millard’s right, and should not be held against him. (http://www.theglobeandmail.com/news/national/judge-to-instruct-jury-in-bosma-murder-trial/article30389351/)

We have no way of knowing for certain whether the jurors followed Justice Goodman’s instructions. (It is also very difficult to appeal a jury verdict—essentially, if the verdict is one that a properly instructed jury, acting “judicially,” could reasonably have arrived at, there is little hope of challenging a jury’s decision. See R v Yebes, [1987] 2 SCR 168: https://www.canlii.org/en/ca/scc/doc/1987/1987canlii17/1987canlii17.html?autocompleteStr=R%20v%20Yebes&autocompletePos=1)

 

We have no opportunity to ensure that jurors—in any trial—are in fact acting “judicially,” as jurors are prohibited from speaking about their deliberations. (See this excellent article from The Toronto Star: https://www.thestar.com/news/crime/2015/10/05/justice-is-blind-when-it-comes-to-canadian-jury-selection.html)

Additionally, it’s important to recognise that a long list of people—most notably, members of the legal profession—are ineligible to serve on juries. This has the effect of ensuring that juries are comprised of people without any legal training or expertise.

For all intents and purposes, juries are made up of random members of society. I am reminded of an episode of Frasier wherein the title character, played by Kelsey Grammer, comments to his colleague, Roz Doyle (played by Peri Gilpin), that “[he], for one, happen[s] to believe in the kindness of strangers.” Roz retorts with: “Well, I believe in the strangeness of strangers.” One excellent example was a potential juror in the high-profile case of the Colorado theatre shooting:

One woman told the court she is clairvoyant, with the ability to see the “truth of a situation.” She was dismissed after telling the judge she could not impose the death penalty — even after promising she would not apply her skills as an “energy reader” and “religious science practitioner” during testimony.

 

“I just don’t see death as a punishment,” she told Samour. “It’s a natural part of life.” (http://www.usnews.com/news/us/articles/2015/03/09/clairvoyant-cartoon-buff-nixed-from-theater-shooting-jury)

Canadian jury selection processes are not as vigorous as in the US. I suspect some interesting characters manage to be selected as jurors in both countries.

Consider: If you suddenly begin to experience strange, unexplained chest pains, would you rather: a) approach twelve random individuals on the street (none of whom could be a doctor) in order to ask their advice, or b) consult a cardiologist? I, for one, would opt for the expert.

Rather than cheering individual verdicts because of disdain for particular accused individuals and/or their alleged acts, we should focus on improving the accuracy, reliability, and robustness of our jury system—or we should be prepared to eliminate jury trials altogether, as has been done in many other countries.

The status quo is ripe for potential miscarriages of justice. (At the very least, we could insist upon juries providing reasons for their verdicts.) One “correct” verdict does not necessarily justify the perpetuation of a flawed system.

 

Do the ends justify the means?

 

At the end of the day, if the “right” outcome is arrived at for all the wrong reasons, is it still the right outcome?


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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.