Trials and tribulations

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This article was published 26/05/2016 (2890 days ago), so information in it may no longer be current.

Veteran justice officials don’t recall the last time five jury trials were set to begin in Winnipeg on the same day.

The rare occurrence earlier this spring is likely a sign of things to come. A growing number of accused criminals are choosing to be tried by their “peers” rather than roll the dice before a trained, experienced judge.

A Free Press analysis reveals there have been 109 criminal court jury trials scheduled in the city since 2011. That includes 26 in the past fiscal year, compared with 18 last year, and 20 in the year before that.

(There were also six non-criminal jury trials during this period — five involving civil battles and one for a “faint hope” application.)

“The increase may be attributed to increasing confidence in the jury system; the fact that in murder trials the Criminal Code mandates jury trials and the feeling among some persons charged that if they testify, a jury of their peers will believe them,” defence lawyer Martin Glazer said.

More than 1,300 Winnipeggers have been selected for jury duty over this period. Of course, for every panel of 12 jurors selected to hear a case, a much bigger number of citizens receives random jury notices in the mail. Typically, 1,000 summons go out monthly, regardless of how many trials are set.

Several interesting conclusions can be drawn from jury data. Here are five notable findings:

1) Not everyone wants to fulfil their civic duty:

No doubt some were ecstatic to find out they’d won the legal lottery and get a crash course on the inner workings of the justice system, while others grudgingly took part.

There are also folks unable to participate for a variety of reasons — health, child care and employment concerns are the biggest reasons.

Then there are those who snub their nose at the system and chose not to show up at court. They typically learn a hard lesson by way of an arrest warrant and appearance before a judge. A few have even spent a couple of nights behind bars.

“A jury summons is not a request; it’s a court order. It is not an invitation; it is a command,” Court of Queen’s Bench Justice Chris Martin told a defiant Winnipeg man who invited jury officials to “come get me” earlier this year when he refused to show up. He spent several hours in custody, was convicted under the Jury Act and fined $150.

“I’ve realized the provincial government places a high priority on civil duty,” the man later conceded in court.

2) Things often don’t go as planned:

There have been 109 criminal jury trials scheduled, which includes proceeding through the jury-selection process. However, only 77 of these cases made it all the way to the end.

The other 32 broke down for various reasons.

Nine ended when guilty pleas were entered, either on the first day of the trial or in some cases several days into the hearing. Maybe it took staring down their victim in court, or realizing the Crown wasn’t messing around, to have the reality of their situation sink in. Perhaps their lawyer was able to talk the Crown into a last-minute plea bargain. Whatever the reason, it’s not unheard of for a surprise resolution to the case.

Nine others crumbled with the Crown entering a stay of proceedings. This is typically due to the fact a key witness, or sometimes multiple witnesses, either don’t show up and can’t be found, or change their story at the last minute.

Another nine cases had to be adjourned and re-scheduled, again for a variety of reasons that could include illness, disclosure issues, scheduling conflicts or missing witnesses.

The remaining five cases started but came to a screeching halt because of a mistrial. Typical reasons include the jury hearing something they shouldn’t have.

“A jury trial is like a train that left the station. It just goes and goes and goes until it stops,” said Crown attorney Brian Bell, who has prosecuted more jury trials than any of his colleagues in the past decade.

Glazer said even the process of selecting a fair, impartial jury can be a challenge.

“A jury trial can be challenging where the accused is unpopular and or the crime is despicable. Also where an avalanche of media attention has occurred, it is difficult to select a jury not influenced as a result of negative coverage,” he said.

3) It’s not as tough to get 12 people to agree on a verdict as you might think:

Take 12 strangers, stick them in a room and tell them they can’t leave until they reach a unanimous decision as they grapple with the intricacies of criminal law combined with complex, conflicting evidence — and someone’s future hangs in the balance.

A pretty heavy burden, don’t you think?

Yet of the 77 jury trials that concluded, there has only been one case that ended with jurors unable to agree on a verdict. That case ended in a hung jury and a mistrial.

There is no such thing as majority rules in the criminal jury system, but that doesn’t appear to be a hindrance in getting a verdict 99 per cent of the time.

Bell said one of the greatest challenges doing a jury trial is not being able to have a dialogue with them, as lawyers often do with judges.

“I can force-feed a judge the law. In a jury trial, you can’t do that,” he said. Jurors are also prohibited from discussing what goes on in the jury room — even with their own families. That means no feedback on what worked and what didn’t.

“Frankly, I’d probably be terrified to find out,” Bell said.

4) An accused is more likely to be found guilty than innocent:

The 76 jury trials that ended with a verdict involved 89 accused. (Some cases had multiple co-accused on trial at the same time.)

Of those 89 accused, 64 were found guilty, representing 72 per cent. Twenty-five were found not guilty, representing 28 per cent.

There’s no available data to compare these jury cases with judge-alone cases, so it’s difficult to draw conclusions suggesting accused persons have a better chance of success with one type of trial over another. But Glazer believes many accused would rather roll the dice with a jury.

“I believe there have been studies in the United States that indicate that the conviction rate is lower in jury trials than in non-jury trials, but I am not aware of any such studies in Canada,” he said.

“Juries do make mistakes, but history has shown that despite wrongful convictions, juries usually get it right.”

5) The majority of all acquittals involve rape cases:

Of the 25 people who were found not guilty by a jury, 15 of them were charged with sexual assault.

Anecdotally, lawyers have said an accused rapist has a better chance of being found not guilty by a jury, rather than a judge, because the Crown has to prove guilt “beyond a reasonable doubt.”

“I think there is a perception that an accused has a better chance with a jury based on a few factors, including the fact that 12 people have to be unanimous. A jury is composed of laypersons who are not directly connected to the justice system and therefore may be able to identify with the plight of an accused. (Also) as wrongful conviction cases become more known, juries become educated about those cases and will be reluctant to convict unless the evidence is overwhelming,” Glazer said.

He also cited the “CSI factor” in which many citizens believe there must be DNA to convict, just like they often see on television. That can be a steep uphill climb, especially in cases that mainly boil down to one person’s word against another.

“My client was relieved and grateful for the jury verdict. The jury listened carefully to the evidence and clearly had a reasonable doubt,” defence lawyer Wendy Martin White told the Free Press about a case earlier this year in which her client was cleared of sexually abusing his stepson.

During the trial, she suggested the boy had created a bogus tale of abuse — something jurors agreed with. The key piece of evidence in support of the accused ended up being a doctor who testified the man was uncircumcised, which contradicted evidence from the alleged victim.

***

If you haven’t yet been selected for jury duty, your time may be coming. The number of trials appears likely to continue its upward swing if the upcoming fall season is any indication. There are eight jury trials set for November, which may be a record if all go ahead.

It could also pose a logistical nightmare at the Law Courts Building, considering there are only five courtrooms designed to handle a jury panel in terms of seating and spacing.

“In my opinion, the jury system is a vital component of our democracy and is designed to ensure that an accused receives a fair trial before 12 impartial judges regardless of the charge,” Glazer said this week. “For centuries the jury system has been relied upon, and so far there does not appear to have been any evidence of a better system available in the world.”

www.mikeoncrime.com