First jury: Gone. Second jury: Gone. Third jury: Nope.
One of the most bedevilled trials in memory nearly went flying off the rails again on Friday when Justice Maria Carroccia sent the panel packing. And, with the consent of all lawyers involved, picking up the thread herself in what is now a judge-only proceeding.
Courtrooms turn themselves inside-out to be respectful of juries. They are the true VIPs. Once empaneled, the presiding judge imparts cautions of gravitas聽鈥 not to read about the case, not to discuss it with anyone, not to go trolling through social media. Further instructions would have been given at the end, before the jury is sequestered, to not reveal the nature of their deliberations to a soul.
That鈥檚 in Canada. In the United States, jurors who鈥檝e finished their business are free to give interviews, sometimes going on national TV to discuss the why of their verdict. Up here, reporters are forbidden to seek out jurors for comment.
So we will never know the complete bollocks聽of events that led to Carroccia聽鈥 for the second time聽鈥 discharging a jury in the sexual assault trial of five former junior hockey players, all of whom have pleaded not guilty.
The Hockey Canada trial will continue as a judge-alone trial after jurors reported 鈥渂eing judged and made fun of鈥 by lawyers for player聽Alex
The Hockey Canada trial will continue as a judge-alone trial after jurors reported 鈥渂eing judged and made fun of鈥 by lawyers for player聽Alex
But we do know enough that I can call some of these jurors fussy, obsessive, persnickety snowflakes. Just like some of the gaggle that preceded them into the London, Ont., courtroom, first time around. And I can say it because the publication ban that applied to everything which unfolded in court, in the absence of the jury, may now be reported, the publication ban dissolving in a judge-only trial. Only the identity of the complainant at the heart of the matter is still protected.
Hire all the expert jury consultants that you want or can afford. Lawyers still don鈥檛 know what they鈥檙e actually getting, after agreeing on the composition of the panel, striking聽鈥 for cause聽鈥 the ones they didn鈥檛 care for.
Either out of over-fastidiousness聽鈥 cleaving to what the judge told them聽鈥 or downright whiny in unleashing objections to lawyer conduct, these two discharged juries injected themselves into the proceedings to such an extent that the trials, a month apart, could not continue as formulated. That would be unfair to the defendants and certainly to the defence lawyers who were the targets of juror displeasure.
The jury grievances were almost risible. But once introduced, the aura of hostility against defence counsel聽鈥 and by extension their clients聽鈥 couldn鈥檛 be vapourized. Thus the jury trial that the accused had chosen was snatched away, albeit the defendants each had to consent. The only genuine alternative was to pull the plug, call another mistrial, and start all over again. Neither the Crown nor the defence wanted to put the complainant through the trauma of testifying anew after she鈥檇 spent nine harrowing days in the witness stand, wrapping up on Wednesday.
An apparent misunderstanding between a juror and a defence lawyer caused the mistrial in the Hockey Canada case.聽
An apparent misunderstanding between a juror and a defence lawyer caused the mistrial in the Hockey Canada case.聽
On Thursday morning, a note was sent to the judge by Juror No. 11 expressing dismay over alleged misconduct by two defence lawyers, Daniel Brown and Hilary Dudding, who represent former player Alex Formenton. The whinge聽鈥 the note鈥檚 author claimed that multiple jurors shared the sentiment聽鈥 asserted: 鈥淭hey observe us, whisper to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable.”
Here was a pickle.
Brown was flabbergasted. No defence lawyer in the world would run the risk of antagonizing a juror. Brown adamantly denied that either he or Dudding had ever done such a thing.
In a statement later released by Brown, he said: “While it is true that co-counsel will speak with one another from time to time during a trial, this is commonplace. The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function.”
Megan Savard, counsel for Carter Hart, said the note had caused “irreparable harm” to Formenton鈥檚 defence team but was also implicitly injurious to lawyers defending all the accused: Formenton, Hart, Michael McLeod, Dillon Dub茅, Cal Foote. The only effective remedy, Savard urged Carroccia, was to declare a mistrial.
Crown attorney Meaghan Cunningham argued that would be a drastic and premature solution, advocating instead for Carroccia to question jurors individually, then rule if any should be dismissed for bias. In Canada, a criminal jury trial can proceed with at least 10 jurors, rather than a full complement of 12.
But Carroccia ultimately and 鈥渨ith reluctance” agreed that too much damage had been done and it couldn鈥檛 be corrected. She did not try to elicit any further details from Juror No. 11.
鈥淚 agree with the defence that it would be difficult to ask the jury to set aside their perceptions when those perceptions are in relation to themselves,” she said in her ruling.
All that consternation and kerfuffle because a聽juror drew the impression聽of a diss.
As fate would have it, Dudding was at the centre of the mistrial that was called by Carroccia on April 25. She had done nothing remotely wrong other than having a glancing encounter with a member of that jury as they waited in line to order lunch at nearby Covent Garden Market.
There were conflicting accounts over exactly what was said. The juror had reported the incident to a court officer. Summoned by Carroccia, the juror identified Dudding as the woman who鈥檇 turned to her and said: 鈥淭here was a lot of head shaking going on this morning.”
In Dudding鈥檚 version of events, she told the judge she鈥檇 been engaged in a conversation with someone unrelated to the case when she turned around and realized the juror was standing behind her. As she remembered the exchange: 鈥淥ops, I鈥檓 sorry” and, 鈥淚t鈥檚 awkward.”
It had been, as co-counsel Brown told the judge, a 鈥渞elatively benign encounter” that compromised nothing.
What the juror told Carroccia: “I just remembered that I was told that I鈥檓 not supposed to say anything, so I just shook my head again, and that was the end of the conversation.” Adding that she was simply trying to do 鈥渆verything by the book to make sure this case doesn鈥檛 get thrown out.”
Lord knows what book she鈥檇 been reading.
It should have been a trivial matter, of no consequence to the trial. But the juror had already discussed the episode with Juror No. 7 who, in turn, raised the matter in front of the whole jury. Banged the trial right there.
The defence argued for a mistrial. The judge concurred.
鈥淢y concern is that the circumstances of this case give rise to the possibility that one or more members of the jury may harbour negative feelings about defence counsel that could potentially impact on their ability to fairly decide the case.”
Like I said, you never know what you鈥檙e going to get with a jury.
For this, one of the most high-profile trials in Canada, it really is best that they be gone-gone-gone.