Sunday July 25, 2004
Juries need processes for conflict resolution
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There was a touching moment, after the jury failed to reach a unanimous decision in Kelly Ellard\’s second trial for the murder of Reena Virk.
Members of Reena Virk\’s family crossed the floor to hug Kelly Ellard\’s parents.
Of course, it happened in a closed courtroom, so we never saw it on television. And journalists, with their near-universal reluctance to scratch below the surface, failed to provide any background for that remarkable act.
So we\’re left to guess. Reena Virk\’s parents came to Canada from India in 1979. Therefore they are most likely either Hindu or Sikh. Reena\’s father, Manjit, wears neither a turban or beard – which proves nothing, of course, but reduces the probability of his being Sikh.
Whatever their faith, I\’m impressed. To overcome their own continuing anguish over the brutal murder of their daughter, to recognize that the accused murderer\’s parents are also devastated by their daughter\’s trials, to respond to others\’ pain as one would hope others would respond to one\’s own – that attitude deserves respect, no matter where it comes from.
Flawed system
\”Times New Roman\”> I\’m less impressed, frankly, with our judicial system. After four days of deliberations, the jury split. Eleven believed Ellard guilty. One juror, apparently, could not stomach consigning a young woman to jail.
Crown prosecutor Catherine Murray suggested that one juror "was thinking with their emotions rather than their head."
On a moonlit November night in 1997, when Reena Virk was 14 – reports imply she was an awkward and not-very-attractive teenager – she met a group of about two dozen other teens who were hanging out at the Craigflower Bridge over the Gorge inlet in Victoria.
At the time, Reena Virk was rebelling against her parents\’ view of the world. She resisted their efforts at discipline, and was currently housed with foster parents. She longed for a seemingly more exciting crowd that involved tobacco, alcohol, possibly sex and drugs.
But the exciting crowd didn\’t welcome her. One girl stubbed out her cigarette on Reena\’s forehead. Others beat her viciously. Witnesses insisted Reena staggered back across the bridge. A pathologist testified that her injuries were so severe she could not have walked on her own. The Crown contends that Kelly Ellard and Warren Glowatski followed Reena across the bridge to the other side. There, one or both of them beat her up again. And one of them drowned her, holding her head underwater.
Glowatski was convicted in 1999 of second-degree murder.
Kelly Ellard was tried in 2000 and convicted of manslaughter. An appeal court overturned that conviction on the grounds that Ellard had been improperly cross-examined.
This trial, her second, resulted in a hung jury.
A third trial is scheduled for October. I have no confidence it will settle anything.
Veto powers
\”Times New Roman\”> John Stuart Mill said in his famous essay On Liberty more than 100 years ago, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
Applying Mill\’s principle to the Ellard case, it would be wrong for eleven jurors to force the sole dissenter to accept their consensus. But the system enabled one juror to impose his or her scruples on the other eleven.
Without better processes for resolving differences of opinion, I wonder if further trials will really solve anything.
In Canada, jurors are selected at random from the voters\’ lists. Both prosecution and defence can disqualify a certain number of jurors, “without cause,” based on the possibility of that juror being prejudiced for or against the defendant.
Lawyers can also challenge “for cause” – although not to the extent of televised trials from U.S. television. In Canada, jurors are rarely grilled about their principles, and never about their emotions.
There are some legal causes for disqualification. Section 638 of the Criminal Code excludes jurors for conflict of interest, for example. For having a criminal record. Even for certain occupations – a judge cannot be called as a juror.
Cause for disqualification
\”Times New Roman\”> A juror must be physically and mentally capable of absorbing the masses of information at a trial, and of making an impartial decision. A person who cannot hear the evidence, even with assistance such as sign language or hearing aids, can hardly make an informed decision.
B.C. has gone a long way to removing invalid causes for disqualification. In the past various jurisdictions have banned women, tenants, Negroes, and native people from serving on juries.
Other less valid causes linger on. Like being an “alien,” whatever that is. In B.C., I could claim exemption for being over 65. Obviously, you don\’t want someone with limited short-term memory sitting on a jury. But I see no reason why a retired person who retains mental faculties should be exempt purely because of age. Indeed, the added wisdom of age might be a benefit.
Fortunately, Canada abolished the death penalty. So the possibility of having a juror who is categorically opposed to capital punishment acting in a murder trial no longer applies.
But I do wonder if some jurors are too soft-hearted emotionally to do their job. It\’s not easy to find someone guilty. Especially a young and attractive woman.
Statistics show that women are about one-tenth as likely to commit violent crimes as men. Even when tried for violent crimes, women traditionally receive less severe sentences than men.
Karla Homulka, you may remember, got 12 years for the sexual assault, torture, and murder of 16-year-old Kristin French and 15-year-old Leslie Mahaffey. Her partner in crime, Paul Bernardo, got life.
I hope that a third trial will bring some closure for Reena Virk\’s family, for society, and for Kelly Ellard herself. But until we develop better processes for resolving conflicts, I will remain doubtful.
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Copyright © 2002 by Jim Taylor. Non-profit use in congregations and study groups permitted; all other rights reserved.
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