Justice

ANATOMY OF A VERDICT

Executive Editor MICHAEL BENEDICT finds himself on a jury, as foreman

March 24 2003
Justice

ANATOMY OF A VERDICT

Executive Editor MICHAEL BENEDICT finds himself on a jury, as foreman

March 24 2003

ANATOMY OF A VERDICT

Justice

Executive Editor MICHAEL BENEDICT finds himself on a jury, as foreman

TEARS well in the eyes of the 34-year-old part-time nurse as she squirms in the witness box. She pauses, sips from a glass of water, looks down, and continues her story of how she was sexually assaulted by a fellow immigrant from her home country. I sit just two metres away, fighting back tears of sympathy.

Only minutes earlier on this Tuesday, I was sipping a coffee, reading a newspaper, my thoughts with faraway people and places. Now, I am Juror Number 4, sitting with 11 others I have never met before, all of us sworn to decide fairly the fate of a man charged with five counts of sexual assault, unlawful confinement and extortion.

MY JOURNEY to Ontario Superior Court Room 2-4 in downtown Toronto begins with a summons in the mail from the sheriff, ordering me to report on a Monday morning at 8:30. More than 400 of us gather at the courthouse to watch an instructional video, and then to wait and see if we will be called to do our civic duty. From friends, I learn that most of us will likely report every day that week, hang around and never make it into a courtroom. We might even be part of group called to a criminal or civil trial, but not have our names picked randomly as a potential jury member. Others might have their names called out, only to be rejected by either the Crown or the defence. If we are not chosen after a week, we are dismissed.

Figuring my chance of not being called is pretty good, I look forward to catching up on some reading. But I am prepared to serve, hoping that, if I am selected, the case will take me away from work for no more than two or three days—and not involve anything unpleasant. Right.

We are encouraged that first morning to come forward and explain why jury duty might impose an undue hardship. Many with child-care or health issues, jobs that will not pay them while they are away or who are self-employed, are excused. Some of us who remain bring out laptops and cellphones. Others play cards or board games

provided in the room, as if on a cruise ship. Until we are excused for lunch at 11:30, we are confined to our room. Washrooms, lockers and a fast-food counter are accessible within our secure zone.

Our jury pool is divided equally into four “panels” and only one—not mine—is called into a courtroom that first day. Once 12 of them are chosen for a trial, the rest return to the giant waiting room. At 3:3 0 p. m., we are dismissed until just before 10 a.m. the next day.

As it turns out, I have little time to read that Tuesday. At 10:02, our panel of about 100 is called upstairs. It is standing-roomonly in the courtroom as the four rows of benches overflow. At the front, the accused sits at one table with his lawyer; the Crown counsel and an investigating police officer are at another. The judge, in a black robe and crimson sash, strikes an imperial pose as he peers down at us from a dais halfway to the ceiling. He smiles and welcomes us, explains a little about the case and the jury selection procedure. He gently excuses potential jurors with hearing or language problems—and then the lottery begins.

The court registrar turns the crank of a drum and picks names one by one. When she reads out a name and that person’s profession, the prospective juror steps forward to face the accused and the opposing lawyers. Both lawyers must accept a juror before he or she can be sworn in. By 10:15,1 am the fourth one chosen, assigned my front-row seat, and minutes later we are listening to the Crown’s opening arguments.

Normal trial hours are from 10 a.m. to 4:30 p.m., but legal arguments often take place before and after. There are generally 15minute breaks at 11:30 and 3:30—drinks

How do we feel, the judge asks us, about the prospect of spending the weekend incommunicado, working on the case?

and snacks provided. At first, these respites seem irritating—we want to get on with the case and not disrupt the flow. But we soon learn how tiring concentrating on evidence can be and appreciate the relief. Lunch is from 1:00 to 2:15.

Jury Room 225 is our new home away from home. This is where we take our breaks and gather every morning before the case resumes. Court Room 2-4 is 60 paces away, through two locked corridors. Our jury room has 12 chairs and a rectangular table with a small sofa. There are men’s and women’s washrooms, each separated from the main room by a small cloakroom. The floor-to-ceiling sealed windows along one side are opaque—to prevent anyone from signalling us from the outside. The air quickly becomes stale.

We are not allowed to discuss the evidence until all the testimony and submissions have been completed—certainly not among ourselves and not with anyone else, including family. The judge, who impresses us with his courtesy and consideration, tells us we can mention what the charges are. That evening, I answer the queries of my curious eight-year-old by focussing on Count 3 of the indictment, extortion, telling him that I am hearing a case about a woman who says a man stole money from her.

Every jury is overseen by a court official, and our minder, Mirella, tells us we can’t eat in the building cafeteria in case we run into any of the parties to the case. She escorts us everywhere, always on the lookout for intruders. When we’re about to enter the courtroom, we line up single file, like schoolchildren, according to our assigned jury number. Then we make an orderly entrance to our seats in the two rows of the jury box.

We are evenly split, six men and six women. Seven of us, though citizens, were born outside the country. We have refugees from Poland, Vietnam and the former Soviet Union. We range in age from our 20s to our 60s. Some are retired or not working. Our jobs are a mixed bag. We are clearly a cross-section.

The judge, bless him, says we may take

notes. Mirella says it’s very rare for a judge to permit this practice. Two of us, including me, take him up on the offer. It helps to keep me focussed. A journalist without a pad and pen is truly a fish out of water.

We hear the alleged victim’s testimony on the first afternoon and for most of the next morning. The defence’s cross-examination begins just before lunch on Wednesday and continues for the rest of the day and into Thursday morning. By the time it’s over, I’m not sure what to believe. The complainant is inconsistent, contradictory and forgetful. I await supporting evidence, but the Crown has little to offer. There is only one other witness, a female police officer who testifies to the alleged victim’s obvious distress when she visited the police station.

Now it’s time for the defence. My fellow jurors expect the accused to testify but, as

is his right, he does not. His counsel argues that the Crown has failed to prove its case “beyond a reasonable doubt.” As the judge later reminds us, the defendant has no obligation to prove a thing. He is, after all, presumed innocent.

By Thursday afternoon, the evidence is complete. Summations will follow on Friday, and then instructions from the judge. After we hear from him, we will be sequestered until we reach a verdict—or he agrees that we are unable to reach one. How do we feel, he asks from his perch, about the prospect of spending the weekend incommunicado and working on the case? Our faces speak before we utter a word. Not to worry, he says kindly. Tomorrow, Friday, we will hear the Crown and the defence and then adjourn for the weekend. Bring pyjamas and a toothbrush on Monday, he advises.

Mirella tells us before we head home that if we can’t reach an agreement by Monday evening, we will spend the night in a hotel across the street, each of us with a separate room but with no access to television, radio, newspapers or telephone. Any cellphones will be collected before our deliberations begin. She and a colleague will be outside our hotel rooms in the corridor throughout the night to make sure there is no contact with the outside world. The prospect strikes me with horror, especially the bit about no newspapers.

On Monday morning, His Honour instructs us for nearly an hour. He tells us we are the judges of the facts of the case. It’s not sufficient that we think the defendant is “likely” guilty; we must find him guilty beyond a reasonable doubt—“an honest and fair doubt based on reason and com-

mon sense after hearing all the evidence.” He also reviews inconsistencies in the Crown’s case and tells us we should approach the complainant’s evidence with the “greatest care and caution.”

Our first order of business is to select a foreperson—they choose me. Before we begin, one male juror observes presciently that if we bring in a verdict of guilty, friends and family will congratulate us. But

if we find someone charged with sexual assault not guilty, then we will be asked to explain ourselves.

It is against the law to reveal the deliberations of a jury. This is a sensible provision that allows jurors to speak honestly in confidence that their words will never be used against them. As foreman, I try to ensure that everyone is heard, even though I may disagree with some of their opinions. I ex-

pect that for many of us, the complainant’s emotional first-day account will be the critical factor in the verdict.

Sandwiches are brought in for lunch. We continue to talk. Sometimes the discussion is heated, but everyone tries to be respectful of the views of others. After all, we are no longer strangers and we are sharing a unique experience. At about 5:30 p.m., we want the judge to repeat a part of his instructions. To get in touch with him, we must write down our question, put it in a specially provided envelope and close it with a court seal. Mirella takes the envelope to the judge and we wait until all the parties are rounded up and brought back to the courtroom. It takes only about 15 minutes and we return to hear His Honour review what he told us six hours earlier.

After we return to the jury room, I believe we are deadlocked. I have a terrible headache and I’m famished. It is now just before 6:30 p.m. and Mirella, with two other court officials, escorts us across the street to a hotel restaurant for dinner, during which we are not allowed to discuss the case. We go to an area separated from other customers and choose from a “Jury Menu.” When I visit the washroom, I’m accompanied by our only male minder, along for just that purpose. The food is OK, but the service is slow and the only way we can be back by 8 to resume deliberations is by having takeout dessert and coffee. The judge has told us he will reconvene at 9:30 to decide whether we should be sent to our rooms for the night.

At 9:05 p.m. we reach a verdict. We agree the Crown has failed to prove its case beyond a reasonable doubt. When we reconvene in the courtroom, it’s my duty to stand in the jury box and respond to each count as it is read out by the clerk. I try to avoid eye contact with anyone so nothing trips me up. After hearing all the “not guildes,” the defendant collapses, sobbing, in the arms of his lawyer.

The judge thanks us and we are dismissed. We return to Room 225 for the last time and are packing to go when there is a knock on the door. It is His Honour, here to thank us once again. He truly seems to empathize with what we have been through. We thank him for his understanding. Most, but not all, of my fellow jurors thank me for my work as foreman. I’m comfortable with the verdict. Justice has been done. Even though we will never really know what happened. I?]