(This column was published in the North Shore News on July 28, 2004)
Look at professional jurors or tribunals
By Leo Knight
THE Crown prosecutors have made it clear they will proceed with a third trial of Kelly Ellard for the murder of Reena Virk.
Ellard's most recent trial, and the subject of last week's column, ended in a mistrial due to one solitary juror who simply could not bring himself or herself to do what needed to be done.
Last week I questioned if it was time to revisit the jury system in our dysfunctional dominion. Radio talk shows were filled with the subject throughout the week as most British Columbians, horrified by the Virk killing, were equally outraged by the result of the trial announced by Justice Selwyn Romilly.
As bad as our system is when the accused are found guilty, it is even more offensive when we run across a jury that cannot do its job, held hostage by one foolish person.
It's quite a ridiculous system in the first instance. The notion of being innocent until being found guilty by a jury of one's peers, an idealistic concept at best, has long since passed.
As trials get longer and more complicated, it is unreasonable to ask someone to take six months or a year away from their day-to-day life to sit as a juror. Equally, as trials get longer and more complicated, it is unreasonable to have lay persons try to understand some of the complex legal and technical issues in many types of criminal procedures.
And that's just the average person. Realistically, is the average man ever likely to be in a jury box? Not likely. Frankly, the possibility of giving up their salary or business for an extended period of time to do jury duty is something the average person would run like hell from.
It doesn't take a whole lot of common sense to understand how to get out of jury duty. I never get asked to serve oddly enough.
But if I did, a few well-chosen comments about the "guilty guy" in the dock or my "buddy the cop" would quickly free me of any long-term commitment.
So who does actually sit on juries?
Well, you have those not smart enough to figure out how to get out of doing it. And, if they aren't smart enough to figure that out, do you really want them sitting in judgement of a criminal case? Because that is how events like the Ellard mistrial occur.
Then there are the under-employed. They have nothing better to do. Or the aged and retired. While smart enough, most seniors I know would have a great deal of difficulty understanding the technology involved in many trials today such as forensic digital analysis of a computer's hard drive in the search for evidence, which seems to have become an issue in many, if not most, cases these days.
Then there's DNA evidence. As demonstrated in the OJ Simpson trial, with a mountain of DNA evidence conclusively demonstrating guilt, the jury simply didn't understand it and were left with Johnnie Cochrane's pithy but ridiculous; "If the glove don't fit. . . ." nonsense.
While I still have faith that the majority of Canadians will use their common sense and do the right thing for the most part, a jury's decision, as things are now, requires a unanimous decision.
There's where the faith starts to waver. I get stacks of vitriolic e-mail from enough people who emanate from the shallow end of the gene pool to know that unanimity on almost anything is next to, if not totally, impossible. The intellectual cripples who permeate our society are the types who want to sit on a jury. That alone should be enough to ensure we find another way.
I don't know why the name Gillian Guess just popped into my head.
Perhaps it's time to look at a system of professional jurors. These people would be hired and trained in the law and paid for their service. Or, perhaps we should be looking at a tribunal superior court system, where three judges sit on a trial and require a two out of three majority for a conviction, much like provincial appellate courts.
Whatever is ultimately done, surely the Ellard mistrial makes it clear that something must be done.
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