Pubdate: Sat, 7 Nov 1998 Source: Toronto Star (Canada) Page: A4 Copyright: 1998, The Toronto Star Contact: http://www.thestar.com Author: Rosie DiManno POLICE FRATERNITY SUFFERS KEEN LOSS TIE GOES ``to the winner.'' What does that mean? I don't have a clue. But those were the only words spoken, to a reporter, by Toronto Detective-Constable Rick Shank late yesterday afternoon after a jury of six men and six women threw in the towel at the officer's manslaughter trial. Other than: ``I'm not going to say anything.'' Verdict: Mistrial. In baseball parlance - from which the aforementioned expression arises - - the accurate and oft-used clichE9 is as follows: ``The tie goes to the runner.'' Which means - again in baseball slang - that the benefit of the doubt in a close bang-bang play goes to the runner, the offence. Applying this metaphor to what happened in the courtroom yesterday would suggest that the offence in this case is the prosecution, the crown. The defence, naturally, is the defendant, Shank, and his lawyers. But perhaps the offence is the defence, in this case, because the onus rests on proving the charge beyond a reasonable doubt. Follow? Which means the benefit of that doubt goes to the accused, if one is looking for winners and losers with a hung jury. Or maybe, as I suspect, Shank simply misspoke himself, this being an extraordinary situation and a tumultuous moment in his life. As tumultuous as the moment(s) in which suspected crack dealer Hugh Dawson was pumped full of nine bullets, on Easter Sunday, March 30, 1997? Again, who can say? Shank, bizarrely, has slain a suspect before - 20-year-old Ian Coley, on April 20, 1993 - but was cleared and even praised by the Special Investigations Unit for trying to avoid deadly force on that occasion. (The crown on this current case was not allowed to tell the jury about that other shooting, because it would have been too prejudicial against Shank.) In any event, sports metaphors are inappropriate. This was no game. But, in terms of an outcome, it's the closest an on-duty Toronto cop has ever come to being found something other than not guilty of manslaughter in the shooting death of a suspect. For the policing fraternity, then, this was a keen loss. Said Shank's close friend and fellow officer, Sergeant Pat Burke: ``This was the main time, wasn't it? This was it.'' That has yet to be decided. All parties will reconvene on Nov. 18 in assignment court. It will be up to the crown law office of the Ministry of the Attorney-General to decide how they want to proceed: Drop the charge, stay the charge, or try the case again. There's also the possibility that the crown could go back to square one, and seek another indictment (which would require a new preliminary hearing) on a charge of criminal negligence rather than manslaughter. But, in a courtroom where all of the 98 available seats were filled - at least half of those in attendance were police officers in support of their colleague, including police Chief Dave Boothby and Deputy Chief Bob Kerr - the atmosphere was one of stunned distress. Some never moved from their seats, as if frozen by the outcome, just staring into space until a bailiff ordered the courtroom cleared. Others crossed their arms as if in restrained fury. Many stood in a protective cordon around Shank, while his wife Nicole - a cop with Waterloo Region police - wept into a tissue. The inability to reach a verdict upon which all 12 jurors agreed should not have come as a surprise. Twice on Thursday, the jurors had relayed information to the judge, in written form, that they were having difficulty coming to a consensus. And just after 2:30 p.m. yesterday, when lawyers from both sides were called back into the courtroom - followed by the swell of spectators - Mr. Justice Eugene Ewaschuk took his seat on the bench with a folded note in his hand. Any astute cop would have noticed that. It didn't augur well. And moments later, Ewaschuk read the news: ``Your Lordship, after a further review of the evidence, the jury has been unable to arrive at a consensus.'' Shank grimaced, pressing his lips together, which brought out the dimples in his cheeks. He shook his head, scratched his ear, wiggled his eyebrows and shrugged his shoulders - the muscular Gordie Howe-sloping shoulders. A mistrial leaves the taste of ashes in one's mouth. Nothing settled, nothing resolved, a purgatory of justice. The jurors must have been aware of this. Some of them looked abashed as they filed back into the courtroom. A few wouldn't even look at Shank. At least one shook his head back and forth as if in disagreement with this conclusion, at the end of this day. A cashier, an assembler, a salesperson, a millwright, a nurse, an engineer, an economist, two clerks, two housewives and one unemployed woman. No score. Rosie DiManno's city column usually appears Monday. --- Checked-by: Patrick Henry