At the heart of the Forcillo trial, a brave and thoughtful jury

Posted on January 28, 2016 in Inclusion Policy Context – Opinion
Jan. 27, 2016.   David Butt

David Butt is a Toronto-based criminal lawyer.

The jury has spoken in Constable James Forcillo’s case: not guilty of murder or manslaughter, but guilty of attempted murder. Reaction to the lightning-rod trial has been predictably swift and florid: If you lean left, the verdict is too soft on a trigger-happy renegade with a badge; if you lean right, too harsh on a young man who put himself in harm’s way having sworn to serve and protect.

Far be it from me to say which competing value judgment best captures the truth. Jury verdicts are direct democracy in action, and democracy is messy, imperfect, controversial, and, as Winston Churchill observed, better than the alternatives. But regardless of your immediate take on the verdict, it is worth unpacking the jury’s work, because there are deeper lessons and longer-term learning that we can take from this moment.

First, a note of caution. Juries deliberate in secret. So we can never truly know how the jurors thought through the case. We are limited to reasoned, inferential analysis based on the evidence they heard, and their verdicts.

From the ubiquitous video, we know Constable Forcillo fired two volleys of shots. It seems plausible, therefore, that the jury found the first volley justified, and the second volley – when Sammy Yatim was already down – excessive. And because the jury could not be sure the second volley caused Sammy Yatim’s death, they opted for attempted murder.

This presumed line of jury thinking tells us that regardless of what you think of the verdict, it is a good day for direct democracy.

First, the jury listened carefully to both sides. The prosecution arguments resonate in the attempted murder guilty verdict, and the defence arguments resonate in the acquittals for both manslaughter and murder. This is good news because we cannot possibly achieve justice if the decision maker has a tin ear for one of the litigants.

Second, the jury vigorously asserted its independence. Both the prosecution and defence came armed to the teeth with prodigious legal acumen and countless hours of hard work polishing their respective strategies. And both urged the jury with unrestrained force to adopt their all-or-nothing perspectives. But the jury stood its ground, flinching for neither. Instead, it picked its way through the minefield laid down by both sides on the very same turf, carefully treading toward a verdict it alone chose, and neither side asked for. Such independent decision-making lies at the heart of every just outcome.

Third, the jury was brave. Nobody got what they wanted so now they’re howling. The jurors must have anticipated widespread criticism because this case assumed titanic proportions long before they were selected. Yet they forged ahead anyway, unafraid to do what they thought right.

Fourth, the jury implicitly and wisely scolded those of us who jumped to hasty conclusions. We watched the videos online – a mere snippet of a very long trial – and thereafter self-righteously pronounced upon the only just outcome possible. The jury however demonstrated that when you take the time to consider the weeks of evidence presented, and digest the almost indigestible legal instructions on how to analyze that evidence, nuance arises that makes a real difference in the outcome. The jury verdict showed us just how embarrassingly shallow all our impetuous prognosticating was.

Fifth, the jury engaged in some adept statecraft. A murder verdict, with its mandatory sentence of life in prison, would no doubt have been widely perceived as too harsh, and too disrespectful of the terrible life-and-death dilemmas forced upon police officers in fast-breaking crises that remain for them, despite their training, episodes of pure fear. And yet an acquittal would no doubt have been equally widely perceived as too disrespectful of the life that was lost and the circumstances of its taking.

So the jury came back with attempted murder, which is serious but has a much lower minimum penalty than murder. This will allow the sentencing judge to legitimize and carefully calibrate the competing moral narratives in this tale. And in doing so, the judge will have the jury to thank for giving him that opportunity.

Sixth, the jury set us all up very well for reasoned discussion about police use of lethal force more generally. The message from the jury is that police do a difficult job in dangerous circumstances and should therefore be accorded some latitude. But the latitude has limits that must be enforced.

An appeal is inevitable, so the ultimate viability of the verdict will remain an open question for some time yet. But for now we can see this case as an episode of direct democracy that worked well in challenging circumstances.

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