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Juries: Trick or treat? | Marcel Strigberger

Friday, October 16, 2020 @ 12:32 PM | By Marcel Strigberger

Marcel Strigberger %>
Marcel Strigberger
Juries first scared me at the age of 9. How?

I grew up in Montreal, the son of immigrants from Belgium. One day my late father, a humble tailor, received a letter with an impressive-looking logo of the scales of justice.

My dad, whose literary skills did not approximate his ability to alter a fine pair of trousers, asked me to read and translate it. I noticed the word “jury,” whatever that meant. I suspected it had nothing to do with hockey.

Our neighbor, a grade-school teacher, read the letter and told my dad he was being summoned to court for jury duty. My father trembled, asking why he was being summoned to court as he had done nothing wrong. After offering my father a drink, the neighbor explained what a jury was all about, noting that he would be a vital component of the justice system.

After a second drink, my father settled down. However, after further deliberation, he asked the neighbor to write a letter requesting an exemption on the grounds that he could not read or speak English. (Back in those days in Quebec, this shortcoming was still considered a deficiency.) The exemption was readily granted.

Interestingly, my father considered this event a positive experience. He even kept the summons, viewing it as a certificate of honour. If anybody ever questioned his integrity, he would proudly say, “Hey, I was even called for a jury.” We once experienced a burglary and when the insurance adjuster arrived to investigate, as the discussion heated up, my father asked me to fetch the letter.

My first observation of a jury, however, was watching Perry Mason. Weekly, he and prosecutor Hamilton Burger would duke it out in front of 12 people. And generally, he didn’t even need a jury to secure an acquittal. The real murderer usually was close by, either on the witness stand or in the body of the courtroom. Perry Mason brilliantly figured that out, getting the culprit to cry out a confession to the murder. That certainly saved the jury some work.

I often visualized my father sitting in that jury box, thinking that his English language proficiency there likely would not have made a difference (like in Quebec today).

My real jury experience happened only after my bar call.

I found the system daunting. We all had a good idea of the local judges’ dispositions, from a hanging judge to a lenient judge who understood the accused was not a villain. When he jumped into a crowd swinging that machete, he “acted out of character,” merely straying.

But how do you deal with 12 individuals you know little more about, other than their occupations?

For starters, I was uneasy about juror selection, in that the names are drawn out of a drum, like BINGO: “G-57, Melvin Lubovsky, plumber.”

Although I had my share of jury trials, I preferred trials by judge alone.

And yes, I know going back to the Magna Carta, it is called a “jury of your peers.” These days, we refer to these peers as “12 folks standing in line with you at a Tim Hortons.”

I generally have little in common with most of these guys unless they order a medium black coffee and a maple donut.

I just never felt comfortable with laypeople making possible life-altering judgments. When I’m on an airplane (pre- and post-COVID-19), I prefer leaving all judgments to the pilot. I’d get nervous seeing a panel of Tim Hortons aficionados in the cockpit during a storm saying to the captain, “Take it down 2,000 feet.”

And yes, I did watch 12 Angry Men, where one juror slowly convinces the other 11 to alter their initial votes of guilty. This is encouraging, but what are your chances of lucking out and drawing as a juror Henry Fonda?

Another concern is the way the evidence is often vetted before a jury. First, there is the voir dire. Precious time is spent arguing admissibility while the jury is banished like a child about to get exposed to an R-rated movie.

Giving the jury some credit, it does not take Sherlock Holmes to figure out that the arresting cop may have also searched further and found in the defendant’s trunk in addition to the machete, something like a .44 Magnum. A reasonable suspicion.

More concerning is that in U.S. courts if some improper testimony is blurted out, the judge will admonish the jury, saying, “The jury will disregard that evidence. I order that it be stricken from the record.”

I am sure that fixes it. I can see the jury deliberating and the foreman saying, “Now, does the defendant have a propensity for violence? Remember, we really did not hear anything about that .44 Magnum we heard about.”

We just never find out what goes on in that jury room. Our judges tell the jury the lawyers will talk to them at the beginning and the end of the trial, and that’s it. Other than that, no chatting, not even a greeting.

I actually was at mall food court once and saw a former juror walking toward me. I recalled the jury hammering me in that trial. She spotted me and immediately made a large side sprint avoiding my gaze. That was social distancing, pre-COVID-19.

I noticed she went over to the Tim Hortons. She did not order a black coffee and a maple donut. Had I had this vital knowledge before jury selection, I would have challenged her acceptance. Obviously, she was not a peer of mine.

I never overcame my discomfort with juries. At least my dad appreciated them.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. Visit Follow him @MarcelsHumour.

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