A judicial common sense revolution

Currently, or in the near future, we may have some political hopefuls looking for some common sense ideas on which to build their fame. Here is some food for thought. When it comes to jury trials, exceptional times require exceptional changes. One such change should be the elimination of jury trials under exceptional circumstances.

Recently a conviction of a person accused of the cold blooded murder of six people in a Surrey BC apartment fell apart after a judge stayed charges after referencing misplaced evidence, the testimony of a confidential informant and the fair trial rights of the accused in her decision. The suspect, a leader of a rather ruthless drug gang, was convicted after an extremely lengthy and expensive jury trial. Presently it would appear another jury trial may be in the offing bringing the number of potential jurors to protect up to 24 and more.

Arguments in favour of the jury system point out that juries can find someone not guilty by virtue of bad law even if they agree the person violated the law.  An example of this doctrine would be the repeated not-guilty verdicts in the Morgantaler trials. Each jury hearing the evidence determined the law did not fit when stacked against a woman’s right to determine what happens to her own body. The bad law doctrine, however, is not the issue in trying members of organized crime groups and terrorists.

The legal system has become comfortable with the jury system and changing it would challenge many lawyers who have grown accustomed to presenting defences based on emotions tainting facts or trivial procedural mishaps benefiting the accused.

It is time new laws were introduced that strip away jury trials under certain circumstances. Cases in which jurors could be exposed to a high level of anxiety or danger would include biker trials and those accused of terrorist acts. Other instances include crimes so complex and wide-ranging that the average juror would have a great deal of difficulty understanding the evidence.

One other example are crimes so well broadcast or horrendous it would be impossible to form a jury. In such cases the trial venue has had to be moved to a jurisdiction where an untainted jury could be found. In this day of mass media attention and interpersonal connectivity exactly how easy is it to find an untainted jurist?

There are no greater terrorists in contemporary society than outlaw motorcycle gangs, whose entire existence relies heavily on intimidating average citizens and authority figures alike. Two dead federal corrections officers near Montreal a few years back and skyrocketing shooting deaths in Toronto clearly attest to these individual’s disregard for the lives of anyone.

There is no way a jury should be put under the stress necessary to come to a verdict in a mega-trial of terrorists or gang members. These are ruthless criminals heading terrorist organizations who possess almost unlimited resources to seek revenge. In a vain attempt to prop up a weak legal process some courts have gone to extreme measures to protect jurors and courts, in some instances even building entire, very expensive, high security court houses.

At a preliminary hearing the Crown should be permitted to apply to have a trial by judge or judges alone. The Italian justice system found that it is far easier to protect one judge for the rest of his/her life than hundreds of average citizens in a jury pool. As one Simon Fraser University study showed, it is also easier to get psychological help for one judge than for hundreds of jurors.

The need for jury trials has been questioned for years. In 1215, when the Magna Carta first granted trial by jury, most people spent their entire life in one village. It made the jury trial process manageable. Today’s society is much more complex. We are much more mobile, far more communicative and, of course, far deadlier than at any time in history. How can we assure that jury trials are free from intimidation or jurors are not otherwise traumatized?

Organized terror groups thrive on intimidation, with headlines helping to back up their threats of reprisals for anyone who would interfere with their activities. A big part of the Hells Angels success is the ruthless promise of “taking care of business.” This means a commitment to never let anyone get away with impeding their activity. If even one person is left ignored or unpunished then their business model fails. In such matters, and if left unchecked, every citizen is simply a pawn that lives or dies at their whim. Society can not tolerate this attitude, nor permit an environment that supports it.

Jury trials can still work when dealing with individual criminals but not with organized crime. The organizations that come part and parcel with some individual criminals are far more problematic than the pawns they sacrifice. It is the organization that is the root of all fears.

Long after an individual is squeezed between the pipes the organization can busy itself “taking care of business” to ensure an example can be made of any one of those twelve jurors. If they don’t hesitate to kill correctional officers they won’t hesitate to intimidate or eliminate a stock broker, store merchant or homemaker.

So here is an issue deserving of some political intervention. Society can no longer afford the luxury of juries in terrorist or trauma trial situations. It is time to re-think the entire process, get back to basics and really think about how much we are willing to sacrifice to prop up an almost 800 year tradition.