Juryman’s cough leads to mistrial

The Ontario jury deciding Howard Burke’s fate unanimously agreed he was guilty of attempted murder. But the jury foreman coughed in pronouncing the verdict. The judge and counsel for both the Crown and defence thought he said “not guilty.” So Burke was set free.

Within minutes of his release from the Newmarket courthouse on September 18, 1997, the error was discovered. The judge later substituted a guilty verdict and Burke returned to custody. But the Supreme Court of Canada, in a recent decision, declared a mistrial and ordered a new trial.

Here is what happened:

After the jury foreman announced the verdict, no one requested him to repeat it. The court registrar asked each juror if he or she agreed with the foreman’s rendering of the verdict. All said they agreed (testimony in a hearing held the following day revealed that the jurors had heard him say “guilty”).

The court recorded a verdict of not guilty and the judge discharged the jury. Burke was released, escaping conviction of trying to kill his drug trafficking confederate, a crime that carried a maximum penalty of life imprisonment.

Court officer discovers blunder

Unfortunately for Burke, an alert court officer queried the jury foreman before he left the courthouse and discovered the blunder. Six days and three hearings later, the judge exercised his discretion to change the erroneous transmission of the verdict from not guilty to guilty.

Burke appealed. In a 5-4 decision released March 12, 2002, the Supreme Court ruled the only appropriate remedy was to declare a mistrial.

The main issue in the appeal was whether the judge had jurisdiction to change the verdict after the jury was discharged.

Justice Major, writing for the majority, outlined the four potential outcomes of a jury trial:

• The most common is the correct rendering of the verdict, in which case the jury is discharged and the trial concludes.
• If the verdict does not reflect the intent of the jury, but the jury has not been discharged, the trial judge retains jurisdiction to record the intended verdict as the trial is not officially over. In the Burke case, for example, if the court registrar had erroneously recorded a not guilty verdict, the judge could have fixed the mistake if he had not yet discharged the jury.

The other two jury trial outcomes involve an unintended verdict where the error is caught only after the jury has been discharged. While that marks the end of the judge’s authority and the completion of the trial, the judge retains a limited jurisdiction to recall the jury for an inquiry into the alleged error:

• If a reasonable, fair-minded person would not believe that since being discharged the jurors’ impartiality and independence could have been undermined by the media, peer pressure or other external factors, then the judge may correct the error.
• If a reasonable apprehension of bias exists, the judge must either declare a mistrial or let the originally communicated verdict stand.

Mistrial had to be declared

The Supreme Court in Burke decided that a reasonable apprehension of bias existed and it did not matter that the jurors insisted they remained impartial. A mistrial had to be declared in deference to the principle of independence of the jury.

The majority and dissent disagreed on what constitutes a reasonable apprehension of bias. The majority felt that dispersal is key to evaluating the likelihood that a juror would become partial. Dispersal means that the jury has ceased to operate as a single unit, and has separated or mingled with the public.

As it took a day to gather the jurors, and two of the jurors read about the fiasco in the newspaper, the majority in Burke felt there was a reasonable apprehension of bias and that a mistrial was the only fair solution. Applying this approach, if the jurors were discharged but collected before leaving the courthouse, an apprehension of bias would be unlikely.

The dissent argued that the jury had decided on a guilty verdict during deliberations, believed the foreman had announced a guilty verdict and had no reason to change their minds after dispersal. Given that the intention of the jury was clear and that the error was discovered within minutes of dispersal, the judge should have been permitted to correct the verdict.

Mistrials, when the judge terminates the trial without a determination of guilt, can occur in a variety of circumstances:

• proceedings that are so protracted or sporadic the jurors cannot properly evaluate the evidence
• improper disclosure to the jury of inadmissible and prejudicial evidence that would taint the proceedings
• improper disclosure can result in a mistrial even in a trial by judge alone if the judge feels he or she cannot give the defendant a fair trial

Hung jury may end in mistrial

But not every instance of the jury hearing inadmissible evidence will result in a mistrial. The jury in the 2001 trial of Mohamed Khan, who was accused of murdering his wife, requested a transcript of the pathologist’s testimony. In addition to the transcript, they accidentally were provided with information disclosed in a hearing (voir dire) held in the absence of the jury.

However, the trial judge did not declare a mistrial. Instead he cautioned the jury to ignore the information and felt that even if they were unable to do so, the information was not of a nature that would result in a miscarriage of justice. His decision was upheld by the Supreme Court of Canada.

An accused can appeal a conviction and seek a mistrial if the verdict is unreasonable or cannot be supported by the evidence, there is a wrong decision on a question of law or if there is a miscarriage of justice.

The Crown can appeal an acquittal on the grounds that the accused was unfit to stand trial, or not criminally responsible on account of a mental disorder or if there is a wrong decision on a question of law. In an appeal by the Crown, the court may dismiss the appeal, declare a mistrial or – if the trial did not take place in front of a jury – change the verdict to guilty.

A mistrial may be declared if the jury cannot reach a unanimous verdict though the judge can order the jury to resume their deliberations if it appears they might still be able to reach one. But even if only one person is unconvinced of the guilt of the accused, an acquittal must result.

A mistrial is an undesirable result akin to a baseball game cancelled due to rain: there are no winners, no losers and everyone leaves the ballpark unhappy.

Leslie Chaiet studies law at Queen’s University.