“You’ve got mail! It’s a letter the Alberta Department of Justice.” Mr Soapbox solemnly passed me the envelope.
Yikes! It’s the PC thought police! I ripped it open and found…a Summons for Jury Duty.
Groan, this is even worse than the PC thought police! In typical Scarlett O’Hara fashion I tossed it on top of a stack of mail. I would think about it tomorrow.
Ten “tomorrows” later I remembered the Summons. The first thing I realized was that I was supposed to fill out the Juror Certification Form and return it to the Jury Management Office within five days. Great, I’m 5 days late and liable for a fine of up to $1000 and/or one month in jail.
The second thing I realized was that I (together with criminals and politicians) was excluded from jury duty because I’m a lawyer. Yippee!
The third thing I realized that I wanted to serve on a jury; not just to collect a whopping $50 a day plus expenses or to see what the other jurors were wearing (jurors must refrain from wearing extravagant, informal or distracting clothing (stripper gear?) or to experience the drama of being sequestered with a jury a la 12 Angry Men; I wanted to participate in the effective functioning of the justice system.
Assuming I could serve on a jury, would I have made the cut?
The prosecutor and defense counsel have the right to challenge any juror “for cause” for the reasons set out in the Criminal Code, including the delicately worded concern that “a juror is not indifferent between the Queen and the accused.*
The prosecutor and defense counsel are also allowed a number of peremptory challenges to reject prospective jurors without explanation. They get 20 challenges in a case of high treason or murder, 12 challenges if the accused is facing a sentence of five years or more and 4 challenges for an offense with a lesser sentence.*
The decision to use a peremptory challenge is tricky because the lawyers have very little information about a juror other than his/her name, residence and profession. Sometimes a lawyer may ask a juror if he has a racial bias or has been influenced by pre-trial publicity, but that’s about it.
So jury selection boils down to the lawyers’ gut instinct and quirky biases.**
Some defence lawyers avoid engineers, accountants, well-dressed men over 50 and blue-collar workers because they’re thought to be narrow minded and prone to convict. Some prosecutors avoid teachers and social workers for fear that they’re “bleeding hearts”.
Eddie Greenspan, the well known criminal defense lawyer who (unsuccessfully) defended Conrad Black, says this is poppycock. “… if you pick the first 12 jurors, you’re probably not going to do much better than if you start applying these nonsensical…rules.”
When I was a law student I spent a summer at the Crown Prosecutor’s office. The highlight of the summer was a rape case—a woman alleged that she’d been raped by her neighbour—the prosecutor asked me and a fellow law student to assist him at the trial.
The prosecutor walked the woman through her evidence while the accused sat terrified and as still as a stone in the prisoner’s box. There was clear evidence of intercourse. The critical question was: did she consent? Her testimony was unequivocal: No.
Just before defense counsel started his cross examination he passed a glass of water to the accused. Remember the water…it’s important. Under defense counsel’s cross examination it became obvious that these two knew each other very well. They were both married and the two couples socialized with each other most weekends. Drinking was a major part of their entertainment.
On the night of the alleged rape, the woman invited the accused over for a drink. Her husband was working late; his wife was not available. Somehow they ended up in bed. She wasn’t sure how they got there but she was pretty sure she hadn’t consented.
Now this is where the water comes in. When the accused accepted the water glass from his counsel he set it down on the edge of the prisoner’s box. As he reached for the glass to take a sip of water he noticed a water stain on the wooden barrier. Clutching his sleeve he carefully wiped it away and held the glass in his lap for the duration of his accuser’s testimony.
The defense counsel finished his cross examination and it was time for the judge to instruct the jury—the prosecutor must prove that the accused is guilty beyond a reasonable doubt. The jurors’ decision must be unanimous, etc. With that the jury was sent away to deliberate.
The prosecutor guessed that the jury would return quickly and it did. The accused stood to hear the verdict—Not Guilty. His eyes filled with tears. He hugged his wife who was also crying and who’d been in the courtroom every day of the trial.
The prosecutor turned to me and my fellow law student and asked: What do you think?
We both thought it was the right verdict and we were very relieved the man wouldn’t be sent to prison as a convicted rapist.
In Canada, unlike the US, the lawyers are not allowed to “poll” the jury to find out why they decided the way they did so I never found out whether the factors that influenced me also influenced them. All I know is that I didn’t believe the woman when she said she had not given her consent and there is something about a man who carefully wipes away a water stain when he’s on trial for rape.
The serendipity of that moment struck me. Defense counsel hadn’t set it up; there was no guarantee that the jurors would catch it or put any stock in it; it just happened.
If something as innocuous as a glass of water can tip the balance between freedom and incarceration, then surely Eddie Greenspan is right—it is impossible to pin down what kind of juror will acquit or convict. And furthermore every qualified Canadian must be given the opportunity to serve on a jury—it’s the only way to ensure that an accused will be tried by a jury of his peers.
Which leads me back to where we started: Should lawyers be excluded from jury duty?
*Criminal Code, RSC, C-34, sections 634 – 638.