CANADA

Choosing a panel of his peers

Jury selection clear the way for Paul Bernardo's murder trial

D’ARCY JENISH May 15 1995
CANADA

Choosing a panel of his peers

Jury selection clear the way for Paul Bernardo's murder trial

D’ARCY JENISH May 15 1995

Choosing a panel of his peers

CANADA

Jury selection clear the way for Paul Bernardo's murder trial

A court official read the charges, his principal lawyer held a microphone to his lips, and 980 prospective jurors listened closely. In a firm voice that revealed no hint of uncertainty, the 30-year-old defendant responded nine times: “Not guilty, sir.” Paul Bernardo listened impassively last week as the charges—two counts each of first-degree murder, kidnapping, unlawful confinement and aggravated sexual assault, and one of causing an indignity to a dead human body—were read in the ballroom of a downtown Toronto hotel. Over the next three days, 12 of the people who packed the ballroom, which served as a temporary courtroom, were selected as jurors. And over the next four to six months, they will determine Bernardo’s guilt or innocence in what is expected to be one of the most shocking criminal trials ever held in Canada.

The size of the jury panel—about 1,500 people were contacted but only two-thirds responded—reflected the unusual public interest in the sex slayings of 14-yearold Leslie Mahaffy and 15-year-old Kristen

French. Associate Chief Justice Patrick LeSage announced last fall that he would move the trial to Toronto from St. Catharines,

Ont., where the murders occurred, because he feared that Bernardo could not get a fair trial there. He called for a jury panel about 10 times as large as the typical pool of candidates due to concerns that sensational pretrial media coverage had tainted public opinion. But after hearing from only 225 prospective jurors, the court found eight men and four women who swore that they could judge Bernardo on the basis of court evidence rather than any preconceived ideas. They may not hear any testimony, however, until late May, since Crown and defence lawyers must still resolve several thorny legal issues.

Jurors were selected in the dignified and subdued setting of a Toronto courtroom near

the hotel where the entire panel had assembled to hear the charges read. The selection process added some drama to what was, at times, a long and tedious week. After numerous court appearances in which he sat passively, often jotting lengthy notes to his lawyer, Bernardo was actively involved in jury selection. Prospective jurors entered the courtroom alone, stood in the witness box and answered a series of questions, some of them under oath. Those deemed acceptable to the judge, and to two members of the jury panel known as triers of fact, were asked to step out of the witness box. Then, a court official issued simple but solemn directions: “Juror, look upon the accused. Accused, look upon the juror.”

After that momentary drama, prospective jurors were left standing while Crown and defence lawyers decided whether to exercise

one of their 20 vetoes, known as challenges. At that stage, Bernardo took an active role in judging those who would judge him. The accused man stood in the prisoner’s box, about 25 feet from the potential juror—often engaging in animated, whispered discussions with his principal defence lawyer, John Rosen, and assistant Tony Bryant. But for all involved—including an accused man who faces the possibility of going to jail for the rest of his life—jury selection is an imprecise and subjective exercise based on what can be gleaned from a person’s answers, appearance and demeanor.

The vast majority of those who entered the courtroom, however, did not get to the stage of facing the accused directly. LeSage excused dozens of people who cited medical conditions, language problems, prearranged holidays or the potential financial hardship resulting from serving as a juror in a lengthy trial. One young woman said she was about to

be married and two men told the -

judge that they were about to become fathers, as well. Others candidly admitted, under questioning from LeSage or Bryant, that they could not be impartial because of media coverage of the case.

And many women, some with young

daughters or granddaughters, made it clear they had no desire to serve due to some of the evidence that will be presented, described by LeSage as “explicit photos and videotapes which many will find disturbing.” For many prospective jurors, being excused

or rejected was a relief. “I would say that most people were not anxious to be picked,” said Lars Opalinski, 25, a university student deemed unacceptable for jury duty by Crown lawyers.

The members of Bernardo’s jury, who by law cannot be named, all live in the Toronto area, come from a wide variety of backgrounds and occupations and range in age from 34 to 66. They include a telephone operator, a department store stock clerk, an airline pilot, a retired advertising executive and a personnel consultant. Although the prosecution and defence lawyers did not reveal their reasons for rejecting a potential juror, both sides appeared to favor older candidates, and to avoid people who were younger than Bernardo. Apart from being able to sit through a long trial, the jurors all declared that they remained impartial even though they knew that Bernardo’s 25-year-old exwife, Karla Homolka, who will be a key prosecution witness, is serving concurrent 12-year sentences for her

in the slayings.

With jury selection behind them, Crown and defence lawyers anticipated spending the next two weeks resolving several complicated legal questions—including the admissibility of certain evidence. But when chief Crown prosecutor Ray Houlahan final-

ly rises to address the jury, the public will get its first detailed picture of the deaths of Mahaffy and French. Crown lawyers presented a brief outline of their case at Homolka’s one-day trial in July, 1993, but the presiding judge, Justice Francis Kovacs, barred the public from the courtroom and imposed a publication ban to protect Bernardo’s right to a fair trial. That decision aroused intense curiosity about the disappearance and deaths of the two girls.

Mahaffy was abducted near her home in Burlington, Ont., about 50 km west of Toronto, in the early morning hours of June 15, 1991. Her body was discovered by a recreational fisherman 14 days later in Lake Gibson, near St. Catharines. She had been dismembered and her body parts encased in concrete. Coincidentally, Bernardo and Homolka were married that day in nearby N iagara-on-the-Lake.

French disappeared on April 16, 1992, while walking home from school, and witnesses later reported seeing a struggle involving a young woman and two people driving a sporty cream-colored car. A massive search by police and hundreds of local residents, as well as televised appeals by the French family for Kristen’s release, failed to produce any useful information. Instead, a motorist discovered the girl’s naked body on April 30 in a ditch outside Burlington, only 300 m from where Mahaffy was buried. Medical experts said both girls had been sexually assaulted.

Bernardo’s trial actually began in early May of last year in St. Catharines, but last week’s jury selection in Toronto moved the trial into the public spotlight. National and local TV crews, and at least one from Buffalo, N.Y., began broadcasting live reports from a complex of temporary facilities outside the courthouse, quickly dubbed Camp Bernardo. They lined a side street with trailers containing editing studios, while reporters filed their accounts from platforms erected on a sidewalk.

Along with heightened media coverage, shifting the trial to Toronto has also led to increased security to protect Bernardo, who is being held at a Metro Toronto detention centre. He travels to court appearances in enclosed paddy wagons, and police had him in the hotel, and under heavy guard, by 6:30 a.m. both days last week, well before most potential jurors began arriving. Police officers and uniformed court officers were posted at several entrances to the downtown hotel both days that the 1,000-member jury panel assembled in a second-floor ballroom. Security is also heavy outside the sixth-floor courtroom where Bernardo is being tried. Court officials have set up four checkpoints, the last one being airport-style metal detectors at the door of the courtroom—all to protect a man who is certain to become the country’s best known defendant over the next few months.

D’ARCY JENISH