Pubdate: Tue, 23 Jan 2007 Source: Edmonton Sun (CN AB) Copyright: 2007 Canoe Limited Partnership. Contact: http://www.edmontonsun.com Details: http://www.mapinc.org/media/135 Author: Mindelle Jacobs SCRIBES DID LAWYERS' WORK Three months ago, the Supreme Court of Canada issued a ruling underscoring a jury's right to reach the verdict it wants, even if it flies in the face of the facts. The problem wasn't that the high court's decision was confusing and open to misinterpretation. On the contrary, the ruling was crystal clear. Even if the evidence is "overwhelming," a judge can't order a jury to bring back a guilty verdict, the court emphasized. The difficulty, however, was that neither the judge, the defence lawyer nor the Crown in the polarizing Kim Walker murder case knew about the judgment. At first blush, there would seem to be nothing in common between the Supreme Court decision - which dealt with the pot-trafficking case of marijuana activist Grant Krieger - and the gut-wrenching case of a Saskatchewan father who shot his daughter's drug-dealing boyfriend. But the power and role of the jury eventually became central in both instances. In the Krieger matter, two jurors asked to be excused in the middle of deliberations, explaining they couldn't bring themselves to convict the accused, who smokes pot to curb the symptoms of multiple sclerosis. Krieger also provided pot to others for medical purposes. The judge refused the jurors' request and ordered the jury to convict. Last October, the Supreme Court quashed the conviction and ordered a new trial, explaining that the trial judge had reduced the jury's role to a ceremonial one. "Unfortunately, the trial judge usurped the jury's function," said the high court. The decision was widely reported in the media but, somehow, the judge, the Crown and the defence lawyer in the Walker case missed the significance. Before she charged the jury last week, Justice Jennifer Pritchard informed prosecutor Daryl Bode and defence lawyer Morris Bodnar that she was not going to give the jury the option of acquitting Walker in the death of James Hayward. No alarm bells went off. They raised no objections. "(We) didn't have a clue that (the Krieger decision) was out there," Bodnar told me yesterday. "It's so recent, I think only academics would have known about it." And journalists, too, actually. After the Walker jury had begun deliberating, some of the reporters covering the trial began asking questions, wondering why the defence hadn't raised the Krieger ruling. "Interesting that a bunch of non-lawyers in about two days of doing research can figure out what all these lawyers couldn't figure out," said one Saskatchewan journalist, who requested anonymity. It's anyone's guess whether the jury would have acquitted Walker in the 2003 shooting death of Hayward if given that option. The judge told the jury to bring back a verdict of at least manslaughter. When reporters told Bodnar about the Krieger judgment, the defence lawyer asked for a mistrial but the judge refused. The jury subsequently convicted 50-year-old Walker of second-degree murder, which means he'll spend at least 10 years in jail. Bodnar had pinned his hopes on a self-defence argument, but the judge refused to allow the jury to consider it. Self-defence is a real stretch - Walker shot Hayward five times, including once in the back. But a new trial based on the Krieger ruling is a virtual certainty. Walker will probably get another chance. "I think (the defence) is banking on the idea that even if this jury didn't find the accused sympathetic, maybe the next one will," said University of Alberta law professor Sanjeev Anand. Judges generally aren't specialists and depend on lawyers knowing the law, he said. "I think the blame has to be at the feet of counsel." Added Anand: "Thank goodness there was a reporter in the room." - --- MAP posted-by: Derek