Pubdate: Tue, 23 Jan 2007 Source: Regina Leader-Post (CN SN) Copyright: 2007 The Leader-Post Ltd. Contact: http://www.canada.com/regina/leaderpost/ Details: http://www.mapinc.org/media/361 Author: Heather Polischuk, The Leader-Post EXPERTS QUESTION ADDRESS TO THE JURY IN WALKER TRIAL As the lawyer for Kim Walker prepares to submit an appeal on the Yorkton man's second-degree murder conviction, questions are being raised about jury rights and powers. On Friday, a Yorkton jury found the 50-year-old welder guilty of fatally shooting 24-year-old James Hayward, a convicted drug dealer who had been involved with Walker's then 16-yearold daughter. But even as the jury deliberated, defence lawyer Morris Bodnar raised concerns over the judge's instructions to the jury, in that the instructions excluded the ability to find Walker not guilty. In arguing for a mistrial, Bodnar referred to a recent Supreme Court of Canada decision involving medicinal marijuana user Grant Krieger. In that case, the country's highest court found an Alberta Court of Queen's Bench judge had erred by taking the not-guilty option off the table, thereby robbing the jury of its function. Walker's case has garnered national attention and has Saskatoon lawyer Mark Brayford watching carefully. "One of the most important rights that we have as a democracy is the right to a jury trial, and one of the most fundamental concepts in a jury trial is their right to decide the case," said Brayford, who represented Robert Latimer in an equally controversial case. Latimer was found guilty of second-degree murder in the death of his daughter, a quadriplegic with cerebral palsy. "The judge can tell the jury what the law is, but if a jury trial is supposed to protect our freedoms, the jury needs to have the ultimate say as to what will happen, including the ability to fi nd the accused not guilty," said Brayford. University of Regina professor Jeffrey Pfeifer -- also chair in police studies at the Law Foundation of Saskatchewan -- has researched jury decision-making. He said research shows juries pay even closer attention to a judge's instructions when it is a controversial and morally involved case, such as with euthanasia or abortion. "We're not sure why. We think it's because people can see themselves in those situations," Pfeifer said. He said a Saskatchewan study on the Latimer case found that when study subjects were presented with case details and the judge's instructions, they tended to follow those instructions to the letter and convict. That changed when the "jurors" were made aware of something called their nullification right -- their right to refuse to apply the law to a particular case. "When we ran that with the Latimer case, they didn't fi nd murder one, they didn't follow the judge's instructions," Pfeifer said. "The irony of all of this is you can't tell the jury that they have that right, and so it's a real catch-22." Under Canadian common law, while jurors have the right to essentially ignore law, judges and lawyers are not allowed to tell them of that right during a trial. The jury is required to come to that point on its own. That's something Brayford would like to see changed. "If the jury has this power to effectively not apply a law if they think it will lead to an unfair result, I would prefer to see the law that the jury can be told of that right in the courtroom," he said. Pfeifer said there is a possibility outcomes of some cases might be different if jurors were aware of that power. "Our research certainly indicates that in these really controversial cases -- and abortion, euthanasia and this (Walker) type of case are the three major ones -- when you instruct the jury as to their actual charter right of nullifi cation, they say, 'You know what, this is an exceptional case, and we're going to go with what is correct here in our minds,' " he said. - --- MAP posted-by: Derek