A judicial common sense revolution is needed

Morley Lymburner
November 18, 2015
By Morley Lymburner
We are now blessed with a new government who may be looking for some common sense ideas on which to build its fame. Here is some food for thought. When it comes to jury trials, exceptional times require exceptional changes. In this day of intimidation and terror there should be zero risk of contaminating the court room. One way to deal with this threat would be to eliminate jury trials under exceptional circumstances. 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. The bad law doctrine, however, is not the issue in trying members of organized crime groups and terrorists.

We are now blessed with a new government who may be looking for some common sense ideas on which to build its fame. Here is some food for thought. When it comes to jury trials, exceptional times require exceptional changes.

In this day of intimidation and terror there should be zero risk of contaminating the court room. One way to deal with this threat would be to eliminate jury trials under exceptional circumstances.

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. The bad law doctrine, however, is not the issue in trying members of organized crime groups and terrorists. The only other argument is tradition. Simply stated the legal system has become comfortable with the status quo and such a change would challenge many lawyers – but better to threaten their livelihoods than to traumatize and terrorize the public.

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 system the courts and governments have gone to extreme measures to protect jurors and courts, in some instances even building entire, very expensive, high security court houses.

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. 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 and skyrocketing shooting deaths in Toronto clearly attest to this.

At a preliminary hearing the Crown should be permitted to apply to have the 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 granted trial by jury, most people spent their entire life in one village. It made the jury trial process manageable. Almost everyone knew everyone else and how their friends and families could be accommodated within that community.

Today's society is much more complex than the era when the jury trial process was created. 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?

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 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 any one of the twelve jurors is made an example for the rest of society. If they don't hesitate to kill correctional officers they won't hesitate to intimidate or eliminate a stock broker, store merchant or homemaker.

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.

(Resourced: Feb 2006 Blue Line Magazine)

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