David Butt is a Toronto-based criminal lawyer
Widespread outrage has greeted an Alberta jury's acquittal of the man who was with sex worker Cindy Gladue when she died of a horribly intrusive injury in the bathtub of an Edmonton hotel. It has also has shined a spotlight on the inner workings of our jury system.
"That's democracy" is not an adequate explanation when seemingly bizarre verdicts arrive. We desperately want to know what happened in that jury room. But we can never know because the confidentiality of the jury room is sacrosanct. We are left to speculate from the outside.
The basic premise of jury trials is that the common sense of everyday folks is a better tool for deciding really important cases – like murder allegations – than the fancy verbosity and tricky analytical gyrations of lawyers. Juries are direct democracy in action. So out of respect for democracy, we built a jury system that gives those everyday folks a heap of latitude.
First, we put little effort into who gets picked for jury duty. Everyone can vote, and for the same reasons everyone can serve on a jury. Jurors are subjected to no comprehensive advance screening. Lawyers know next to nothing about who the jurors are, beyond address, occupation and appearance. The prosecution and defence are given a limited number of "peremptory challenges", which they can use to dismiss a potential juror no questions asked. But beyond that, the selection of juries is largely a matter of the lawyers' experience and intuition.
Second, we put little effort into educating juries about their task. No seminars, no assigned readings in advance, no classroom orientation for their important work, no practice sessions. We push them into the deep end of a live trial minutes after they are chosen. The "education" they get is on the job, when the judge reads verbatim page after page of complicated instructions, often in a boring monotone, covering in mere minutes complex legal points that law students can spend weeks digesting and discussing.
Then, after sitting through the trial, jurors are sent into a jury room, sequestered from the world, told to decide the case, and left in isolation until the job is done. Nobody can know what went on in the jury room. Which means no one can know precisely how they decided the case. Juries, unlike judges, do not have to explain why they reach the conclusions they do.
What might surprise many who feel passionately that the Gladue case was a miscarriage of justice is that higher courts, with all their authority, actually have very limited power to interfere with a jury verdict, for better or worse.
If either the prosecution or the defence dislikes a jury's verdict, they can appeal the verdict to the higher courts. But since nobody knows how the jury decided the case, nobody can attack the jury's verdict directly. Instead, anyone seeking to set aside a jury verdict is pretty much limited to arguing that the judge who presided at the trial gave the jury erroneous legal instructions, or let them hear some evidence they should not have heard. The theory behind this very limited right of review is that the jury stands in for the community as a whole, so that as long as juries are given the right instructions and the right evidence, the community has made the decision that is right for it and that decision must be respected.
You could be forgiven for thinking this type of direct democracy seems a bit like leaving kindergarten kids to run the classroom. Fortunately, apparently awful jury verdicts like the one in the Gladue case are relatively rare. The reason is the requirement of jury unanimity, the greatest strength of the jury system. With 12 jurors averaging 30 years old, there are in total centuries of life experience in the jury room that must coalesce into consensus. The result is that bizarre verdicts rarely make it through the filter of those centuries of practical life experience and common sense.
Plausible speculation about what happened inside the jury room in Cindy Gladue's case must include the spectre of pernicious "isms": racism, sexism or some distressing combination of both. If those 11 everyday folks on the jury come from a community where subterranean currents of racism and sexism still flow, the community simply cannot deliver to itself through juries the justice it deserves. And that is not a mechanical problem for the justice system, to be fixed by some tinkering in an appeal court. It is a much deeper social problem.