Pubdate: Sat, 20 Jan 2007 Source: StarPhoenix, The (CN SN) Copyright: 2007 The StarPhoenix Contact: http://www.canada.com/saskatoonstarphoenix/letters.html Website: http://www.canada.com/saskatoonstarphoenix/ Details: http://www.mapinc.org/media/400 Author: Randy Burton, The StarPhoenix JUSTICE TAKES A DETOUR No matter which side you come down on in the murder trial of Kim Walker, it's impossible to escape the air of tragedy hanging over the whole affair. Anyone who has raised daughters can sympathize with the man's frustration. To stand idly by while your little girl is destroyed by a drug addict seems like no option at all. At the same time, of course, no one stands above the law. In the final analysis, it doesn't matter what kind of man James Hayward was. Whether he was the devil incarnate or just a nice young lad gone astray, he had a right to his life. The jury agreed with this and on Friday afternoon found Walker guilty of second-degree murder for killing Hayward. That defence lawyer Morris Bodnar will appeal this verdict is almost a foregone conclusion, given the confusion over what the jury's options were. What happened was this. In laying out the facts of the case, Bodnar and prosecutor Daryl Bode agreed that on March 17, 2003, Walker took a 9-mm Luger pistol to Hayward's house and shot the young man to death. The problem bedevilling the jury for three days was not in trying to determine what Walker did. The problem lay in deciding what to call it. That proposition prompted Queen's Bench Justice Jennifer Pritchard to tell the jury that it must find Walker guilty of something. The only question was what offence it should choose, whether it be manslaughter, second-degree murder or first-degree murder. Two days into jury deliberations, Bodnar protested Pritchard's charge to the jury and asked for the proceedings to be declared a mistrial, saying Pritchard had overlooked one other option -- not guilty. This was a stunning turn of events, given that he had earlier suggested his client would be perfectly happy with a verdict of manslaughter, which carries a minimum sentence of four years. However, that was before Bodnar reviewed what the Supreme Court of Canada said about the case of Grant Krieger, the medical marijuana crusader who went to the country's highest court to fight charges of possession of pot for purposes of trafficking. The judge in his original trial in 2003 did something very similar to what Pritchard has done in the Walker case -- he told the jury that it had to find him guilty. This is something a judge simply cannot do and the Supreme Court said as much in the judgment it brought down on Krieger last October. It's worth reviewing here because it very likely points the way to where the Walker case is headed. The core of the decision in the Krieger case was that in a jury trial, it's up to the jury to decide whether the defendant is guilty, not the judge. When the judge in the Krieger case directed the jury to arrive at a guilty verdict, he was usurping the jury's function, thereby depriving Krieger of his constitutional right to a jury trial. This is exactly what has happened in the Walker case. In spite of the obvious parallels though, Pritchard neither declared a mistrial, nor did she give Walker's jury new directions. While that was her inclination, neither the defence nor the prosecution wanted her to do that, although for different reasons. In any event, to give the jury an entirely new set of instructions after two days of deliberations would have compromised the entire process. The jury knew nothing of this whole debate and finally settled on its verdict, but the judge's charge to the jury is almost certain to lead to an appeal. "The fact of the matter is, she's committed a serious error of law," says Sanjeev Anand, a University of Alberta law professor. "In the Krieger case, essentially everyone agreed he was trafficking drugs. There was no dispute as to the facts in that case, either. But the reality is, the judge can't take the matter out of the hands of the jury," Anand said. After looking at the Krieger case, how could Bodnar not appeal? A new trial is inevitable, which means both families must relive the whole affair. What seems incredible here is that neither the judge, the prosecutor nor the defence lawyer knew about a Supreme Court of Canada ruling that so fundamentally affects the Walker case. It's not as if there aren't a number of measures designed to keep legal practitioners up to date. Judges are alerted about important cases, including those before the Supreme Court, and have access to databases that provide weekly updates of new decisions. There is also a judge's school for new judges, refresher courses for experienced ones and even case summaries provided to Queen's Bench judges from their colleagues. Crown counsel is likewise given a monthly update on Supreme Court judgments, but the prosecutor in this case apparently didn't know about the Krieger decision either. Bodnar himself only discovered it after reporters began asking questions about the novelty of a judge directing a jury in such a way, and turned up the Krieger case. It was mentioned to him by a reporter, and when he heard that, he looked it up, resulting in his last-ditch challenge to Pritchard's charge and very likely a new trial. It's not for nothing they say justice is blind. - --- MAP posted-by: Derek