12 really angry people

Allegations provide rare peek inside jury room

Adrian Humphreys, National Post 

Published: Monday, February 09, 2009

An empty jury box in a court room  Chris Schwarz/Canwest News Service

n unusual hearing into a juror who had a change of heart after delivering a guilty verdict has provided a rare and unbecoming peek inside the jury room, typically a protected bastion of secrecy in Canada: After a day of private deliberations, the 12 men and women deciding the fate of an Ontario woman almost came to blows.

The heated deliberations were outlined in a two-page letter from a juror to the judge presiding over a drug case in Simcoe, one of two recent cases portraying jury rooms as poisonous, unpleasant places.

The allegations of such jury room pressure raise questions of whether the nation's secrecy rules make jury deliberations more "comfortable," as the Supreme Court of Canada envisioned, or merely cover up a dirty judicial secret.

If the jurors in Simcoe had not been allowed to take a break for the evening, "there would have been the possibility of physical confrontation in the most hostile of environmental conditions in the sealed jury room," an unnamed male juror wrote, according to a recent court decision.

Until the arrival of the two-page letter, the case against Jeanien Edith Holmes, 30, of Hamilton, had been unremarkable: a fire brought firefighters to a home on the outskirts of Simcoe in 2005, where they discovered 95 marijuana plants.

Holmes, listed as the tenant, was charged with unlawful production of marijuana and after a week of hearing evidence, jurors retired on Oct. 12 to a private jury room to begin their deliberations. By 9 p. m., with no consensus reached, Justice James R. Turnbull ordered jurors sequestered in local hotel rooms for the night. The next morning, jurors reconvened at 10 a. m. to continue deliberations and, three hours later, declared their guilty verdict.

"At my request, each member of the jury was polled and all members of the jury indicated they agreed with the finding of guilt," Justice Turnbull wrote.

About two weeks later, however, he received a long letter from Juror No. 8 outlining concerns with the jury's deliberations.

In December, Justice Turnbull convened an unusual hearing for lawyers who worked on the case. Holmes's lawyer, Asgar Manek, wanted the juror called to the stand to say more about his concerns.

"This is very unusual. If there is no inquiry of this particular juror, we will never know exactly what transpired," said Mr. Manek in an interview with the National Post. "Depending on what came out, [the judge] could then make a decision of whether to declare a mistrial."

Jamie Pereira, the federal prosecutor in the case, disagreed.

"It is human nature to have second thoughts on the decision to find someone guilty," he said in an interview. "As a prosecutor, I was confident the jury made the correct decision."

In his judgment, written last month, Justice Turnbull maintained the secrecy of jury deliberations.

"When the jury was polled, Juror 8 stated orally, face to face with the defendant while he was still under oath, that he found the defendant guilty. If he had any doubts or if he felt he was under undue pressure in the jury room, he had the opportunity to express himself at that moment. He chose not to do so," Justice Turnbull wrote in his ruling.

"The common law rule of juror secrecy is essential to safeguard the sanctity of the jury deliberation process," he wrote. The letter was sealed and is available to the Court of Appeal should it be required.

"Getting that letter was a huge surprise. It is very rare that an issue like this comes up," Mr. Pereira said.

But how rare is it for jurors to feel intense pressure from fellow jurors?

On almost the same day that Justice Turnbull received the juror's letter, the Ontario

Court of Appeal issued a decision in a strikingly similar case in Brampton.

After a guilty verdict rendered against Alice Phillips, also a young women facing a drug charge, a juror said she felt threatened by other jurors and feared for her safety because of possible retaliation from jurors who taunted her during deliberations.

Weeping and shaking, the female juror told a court officer that during Ms. Phillips' 2004 trial she received several hang-up telephone calls, possibly from other jurors, according to a recent court judgement. Ms. Phillips' lawyer sought to overturn the conviction but was denied.

Under Canada's Criminal Code, anyone who discloses information on the private "proceedings of the jury" could face six months in jail and a $5,000 fine. (An exception, allowing this story to be published, is when the information is subsequently disclosed in open court.)

The jury secrecy law was upheld by the Supreme Court in 2001 in the case of Rui Wen Pan, who argued that evidence of improper jury deliberations should be allowed for appeal purposes.

During the trial of Pan, who was charged with murdering his girlfriend after her body parts were found scattered about Eastern Ontario in 1988, a note suggesting jury strife was sent to the judge.

"Your honour, will you please pole [sic] us after the virdict [sic] is read but if you could please make it look as if this is what is done in the courts. I have to do what I feel I was sworen [sic] to do & what I feel is right in my heart & after what I've been put through in the jury room this was the only way I could do it," it read.

A mistrial was declared. Afterwards, the other 11 jurors in the case wrote a letter

complaining about the behaviour of the juror who sent the note.

The Supreme Court declared jury secrecy a necessity that "helps to ensure that jurors feel comfortable freely expressing their views in the jury room and that jurors who hold minority viewpoints do not feel pressured to retreat from their opinions because of possible negative repercussions associated with the disclosure of their positions," Justice Louise Arbour wrote for the court.

The ruling acknowledged, however, that secrecy comes with a price: "We cannot measure in any meaningful way whether the procedures that we have in place to ensure that it does function properly are effective."

The two recent Ontario cases suggest jury rooms are not always the comfortable sanctuaries the Supreme Court hoped.

"Allegations of impropriety in the jury room are sometimes made by jurors. Are the allegations true? Who knows? Getting to the truth of these allegations do pose an interesting dilemma because of jury secrecy rules," said Steve Coroza, a federal prosecutor who argued the government's side in the Phillips case.

In the United States, jurors are free to speak their minds and frequently do -- on Larry King Live, in tell-all books and to lawyers looking for grounds to appeal a decision.

James Stribopoulos, a professor of criminal law at Osgoode Hall Law School, suggests there are ways to loosen jury secrecy without going to the American extreme.

"Judges are really concerned about opening the floodgates and having this become a common ground of appeal with appellate lawyers investigating what transpired in the jury room," Prof. Stribopoulos said.

"Cases like this demonstrate that this is very unfortunate because it can mean we close our eyes to potential injustice. There could be a better, half-way approach.... Keep it that parties can't be proactive in trying to find out what happened in the jury room but when information emerges, like in this case, that suggests there has been something untoward about the deliberations, we should make an exception."

It could be a dangerous precedent to overturn a jury verdict because a juror expresses second thoughts, said Mr. Pereira, who prosecuted Holmes.

In many trials, information about an accused is kept from jurors by court order and they might hear of it only after delivering their verdict. There could also be the fear of criminal colleagues of a convicted person finding a juror and pressuring them to recant.

"There are obvious policy reasons why you want to maintain a verdict after the trial," Mr. Pereira said. "It would be opening up Pandora's box."

Holmes is scheduled to be sentenced on Feb. 20. Her lawyer, Mr. Manek, said he would discuss with his client whether to appeal the conviction because of the juror's letter.