We'll never know why police acquitted

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Late last week a jury acquitted Winnipeg police officers Darrel Selley and Kristopher Overwater of all charges related to the shooting of an unarmed man and a purported coverup following the shooting.

Selley had been charged with attempted murder, fabricating evidence, careless use of a firearm and criminal negligence. Overwater had been charged with dangerous driving, fabricating evidence and aiding and abetting Selley's alleged offences.

The jury found both not guilty of all charges surrounding the July 2007 shooting of Kristofer Shaun Fournier in the buttocks as he ran from the officers during a back-lane foot chase in River Heights. Fournier had earlier crashed the stolen Yukon SUV he was driving into the officers' vehicle following a high-speed car chase. He admitted driving while high on meth, and said he ran from the police because he didn't want to be caught with the cocaine in his pocket.

Detractors of the criminal-jury system have pointed to the trial's outcome as an example of jurors departing from proper application of the law due to emotional responses to the evidence and personal prejudice against the complainant Fournier, a career criminal.

Prosecutor Robert Tapper flagged the risk early on. He suggested in his closing argument jurors shouldn't travel down the road of street justice. He compared the two officers' actions to a Clint Eastwood Dirty Harry movie, and warned the jury: "We do not allow vigilante justice in Canada, especially (for) those in a police uniform."

After the trial and verdict he was more blunt, saying after two days of deliberations the jury simply decided the shooting victim got what he deserved and that neither officer should be punished.

But whether, or to what degree, the jurors disregarded the evidence, or the law, is anybody's guess. Only the jurors know for sure and, unfortunately, they can't tell.

Jurors deliberate in secrecy. They also return only a general verdict: Guilty, or not guilty. So when they acquit, nobody but the jury knows whether they found the facts consistent with the innocence of the accused, entertained reasonable doubt as to guilt, failed to believe the complainant, or simply refused to apply the law.

It's also impossible to know what, if any, extra-legal factors a jury considered in reaching its verdict. By law, a jury's deliberations can't be recorded. So there's no way, after the fact, to assess the basis of its reasoning or competency of its verdict.

In the United States, jurors often grant media interviews to explain what went on behind the jury room's closed doors. In Canada, however, it's illegal for jurors to discuss with the media, or anyone else, what factored into their decision.

Our Criminal Code forbids a juror to disclose, before or after the verdict, anything discussed in the jury room that didn't surface in open court. It also makes it a criminal offence -- obstruction of justice -- to do so.

As if that weren't penalty enough, Manitoba's Jury Act also makes it a crime for a juror to disclose "in any way the nature or content of any discussions held by the jury" after a verdict is rendered or the jury discharged.

The prohibition is so absolute in Canada that even social-science research has been nixed. Worthwhile investigations into how juror biases affect verdicts, and how a jury reaches a decision, including strategies to resolve disagreement or uncertainty, have been curtailed -- all because questions posed to jurors put them at risk of breaching the Criminal Code's veil of secrecy.

It's unfair to assume the outcome of the police officers' prosecution supports a conclusion jurors are incompetent adjudicators. There was likely far more at play in the jurors' deliberations than we can ever know.

What we do know is that in our system the jury retains the right to dispense justice that conforms to notions of fairness or morality. It can acquit if it concludes the law, or the law's enforcement, is oppressive or unfair. And it can thereby send a symbolic message to the state: Law must be responsive to the conscience of the community.

This is how it should be, and should remain.

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition February 13, 2013 A11