"TWO WEEKS AGO, A JUDGE DECLARED A MISTRIAL IN THE CASE OF TWO MEN ACCUSED OF KILLING A DRUG DEALER BECAUSE POLICE HAD CONDUCTED BACKGROUND CHECKS ON PROSPECTIVE JURORS AND GIVEN THE INFORMATION TO THE CROWN ATTORNEY, GIVING THE PROSECUTION AN EDGE. NOW, THE LAWYER FOR THE MEN IS ASKING THE COURT TO STAY THE CHARGES. IF HE WINS, TWO ACCUSED MURDERERS WILL GO FREE. IN THE BRENNAN CASE, THE SPECULATION IS THIS: IF POLICE SCREENED THE JURY LIST FOR THE CROWN IN THE CASE OF A MURDERED DRUG DEALER, DID THEY DO IT FOR A MURDERED COP? IF THEY DID, WHAT ABOUT THE VERDICT?"
ANNE JARVIS: THE WINDSOR STAR;
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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"
My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;
I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.
This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.
The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;
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Windsor Star scribe Anne Jarvis provides a powerful perspective on jury-tainting in a column which ran under the heading, "'Quality juries' fail us all," which ran on June 26, 2009.
"In the wake of the jury-screening scandal, there is one case everyone is wondering about: The trial of cop killer Nikkolas Brennan," the column began.
"Brennan shot Windsor police Const. John Atkinson dead in the street in his Riverside neighbourhood in broad daylight in May 2006 in a crime that shocked the city. A jury convicted him of first-degree murder," it continued;
"Two weeks ago, a judge declared a mistrial in the case of two men accused of killing a drug dealer because police had conducted background checks on prospective jurors and given the information to the Crown attorney, giving the prosecution an edge.
Now, the lawyer for the men is asking the court to stay the charges. If he wins, two accused murderers will go free.
In the Brennan case, the speculation is this: If police screened the jury list for the Crown in the case of a murdered drug dealer, did they do it for a murdered cop? If they did, what about the verdict?
Police won't comment, citing an investigation by Ontario's privacy commissioner. But clearly, this scandal raises questions about major trials.
In the case of the drug dealer, the Crown used the information to pick a jury "favourable to the prosecution," jeopardizing the right of the accused to a fair trial, Superior Court Justice Bruce Thomas said.
It violates the Juries Act and is unconstitutional and unethical, says University of Windsor law professor David Tanovich, co-author of a book on jury selection. It's as close to jury tampering as you can get, he said.
Jury screening is also routine here. So why are defence lawyers the only ones hitting the roof?
Windsor police routinely run background checks on prospective jurors, Chief Gary Smith said, and the Crown routinely receives this information, says prosecutor Tom Meehan.
In the case of the murdered drug dealer, two investigators used a confidential police database to check more than 200 people on the jury list. They noted speeding tickets, pardoned crimes, young offender records and even whether people might be sympathetic to police, people who dislike police or have "family issues" or "criminal associates."
The Crown excluded three jurors based on the information. One woman picked for the jury is a Crown witness in another murder case and helped police in that case.
This has been happening in Barrie since 2004. One lawyer has already won a motion for a mistrial there. It's also happening in Thunder Bay, and the OPP did it until last month.
Under provincial law, the Crown and defence are allowed only basic information about prospective jurors, including age, gender, occupation and whether they have been charged with an indictable offence.
The idea is to prevent jury-rigging and protect privacy.
But the Crown is getting information like "calls a lot for minor complaints," or "dad is a drinker," or "ongoing neighbour dispute."
Ontario Attorney General Chris Bentley condemned the practice. The ministry told Crowns in 2006 not to do it, but clearly some ignored that directive.
But Bentley isn't calling for an inquiry.
Instead, the privacy commissioner is investigating whether people's rights were breached. As the defence lawyer in the case of the murdered drug dealer said, being called for jury duty doesn't give the government the right to investigate you. Jury duty is onerous enough as it is.
But it's not the privacy commissioner's job to address possible tainted jury verdicts. The commissioner has no real power, either. It can't compel people to participate in its investigation, and it can only subpoena health information.
Smith was nonchalant. It was a week after the mistrial before he announced that police will no longer conduct routine checks.
There is no police policy prohibiting the checks, and his officers didn't break the law, he said.
They were just trying to get "quality juries," he said. Maybe someone convicted of domestic assault shouldn't be a juror in a domestic assault case, he suggested.
But if the police and Crown are vetting jurors, who is really deciding guilt or innocence?
Juries are the heart of the justice system.
They decide our most serious cases. The idea is not to win at all costs.
The idea is to have a fair and impartial trial.
You would think we learned that in the cases of people like Donald Marshall, Guy Paul Morin and David Milgaard, whose lives were ruined by wrongful convictions.
It's possible, said Tanovich, that slanted juries have convicted innocent people, and it's also possible that guilty people could be freed.
Trying to get "quality juries" fails us all."
Some background on the columnist (from the Windsor Star);:
"Anne Jarvis started her career in Burford, Ont., a small town with one stoplight and a restaurant called Dot and Dave's. She was the first reporter at a new weekly newspaper.
After a stint at the Brantford Expositor, she joined The Star in 1990. In 1997, bothered by the number of troubled children in Windsor, Jarvis led a team of writers that documented the high number of child welfare cases in the city and probed why so many kids ended up so damaged. The series of stories, called Our Troubled Children, won a National Newspaper Award. A year later, Jarvis travelled to the Arctic mining outpost of Longyearbyen, Norway, to cover an expedition led by a University of Windsor professor searching for the cause of the deadliest pandemic in history, the Spanish flu. She chronicled the team as it exhumed the bodies of six flu victims marked by simple crosses on the bleak tundra 1,300 kilometres from the North Pole. In 2004, Jarvis secured a copy of a confidential report on the MFP leasing scandal, one of the biggest scandals in the city's history, and wrote three stories on it, winning an Ontario Newspaper Award. She is married, with three children. With all her spare time, she runs."
Harold Levy...hlevy15@gmail.com;
