Wednesday, 7 March 2012

Reasonable doubt was the judge’s only option

Mitchell Wilson was one of those unfortunate children who suffer from muscular dystrophy, a debilitating disease for which there is no known cure. It never fails however—there are children who are best defined as creeps who will bully such victims who are not really in a good position to defend themselves against the bullies.

Two such bullies jumped him as Mitchell was taking a walk before dinner one day in November 2010. He had passed a group of boys at the same time he had called his mother on the iPhone to ask what was for dinner. Shortly afterwards, he saw two of the nearby youths pull up their hoodies around their faces and approach him. The boys had obviously seen the iPhone in his hand so the two hoodlums followed him and then attacked him. He was body-slammed from behind, bloodied and ended up with two chipped teeth and a sore wrist. Then the hoodlums robbed him of his father’s iPhone. His stepmother happened to be driving by and chased after the taller of the two hoodlums who then threw the iPhone back at her.

Two days after Mitchell was jumped and robbed by the two youths, he passed a boy who was exiting the school office just as Mitchell and his stepmom were entering it. Mitchell pointed to the boy and told his mother that the boy he pointed at was one of the boys that had attacked him. He later told the principal and vice-principal and the police that the boy he pointed out was one of the boys who attacked and robbed him. He also picked out a photo of his attacker from a binder of class photos. Mitchell described the boys to the police. He said that they were both black and male. He said that one was big, around 16 years old, the other was small, maybe 13. He even described their clothes. Then after the chance occurrence of seeing the boy whom he believed had assaulted him exiting the school office, Mitchell was steadfast in his identification. He told the police that he was doubly sure that the boy he was referring to was definitely one of the boys who had attacked him.
The boy was arrested and charged with assault and robbery.

Unfortunately as we all know, sometimes many months pass before the trials begin and that is what happened in this case. The trial took place approximately 14 months after Mitchell was mugged.

However, Mitchell wasn’t there at the trial. He had committed suicide ten months after he was mugged by the two young hoodlums. After the attack, the Grade 5 student suffered anxiety attacks. He didn’t want to take his daily walks, and his health worsened. His father says friends of the accused youth followed Mitchell home, all the while taunting him.

On the morning Mitchell was to start Grade 6, and soon after he was subpoenaed to testify about the assault, Craig Wilson found his son in bed with a plastic bag tied around his head. The boy was dead.

When the case was heard before Justice Mary Devlin, she was faced with a problem. The now 13-year-old defendant denied that he was the one who attacked Mitchell. Unfortunately, Mitchell wasn’t in court to identify him and explain what had happened when he was attacked. However, four statements Mitchell made to the police were entered into the trial as evidence. However, that evidence was rightfully classed as hearsay evidence because it was given by witnesses who heard Mitchell describe his attacker. The trial judge said that the evidence wasn’t enough to overcome the reasonable doubt that she harbored in her mind about the identity of Mitchell’s attacker.

Now had Mitchell given a dying declaration, his declaration could be used as evidence of the dead boy but of course, there was no dying declaration. Strangely enough, had he written down what had happened in a note and identified the boy in his note and then committed suicide, his note could be construed as a dying declaration because the courts presume that no one would risk going to hell for lying just before they died.

The lawyer for the defendant however could legitimately argue that he would be denied the opportunity to cross examine Mitchell since he wasn’t in court and as such, it could result in his client not getting a fair trial.

The trial judge had no alternative but to dismiss the charge against the defendant on the basis of reasonable doubt. In other words, if she was not totally convinced that the defendant really was the boy who attacked Mitchell and therefore had doubts as to his guilt or innocence, and she did have some doubts and her doubts were reasonable and they were, then she had no other choice but to dismiss the charges against the 13-year-old defendant.

There is no doubt in my mind however that the defendant was the boy who attacked Mitchell but under the law, the judge was right to dismiss the charge against him.
The judge said in part in court, “I realize that the conclusion of this trial leaves many unanswered questions, which is unfortunately unavoidable.”

I will try to answer those questions as they pertain to reasonable doubt for my readers.

In R. v. Lifchus, a 1997 case heard in the Supreme Court of Canada, the court was dealing with an appeal in which the appellant (defendant) claimed that the trial judge should have fully explained to the jury what is entailed in the phrase ‘reasonable doubt’.

The Supreme Court’s definition of reasonable doubt was as follows:

“This expression, which is composed of words commonly used in everyday speech, has a specific meaning in the legal context. The trial judge must explain to the jury that the standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused. The jury should be instructed that a reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty. Such a standard of proof is impossibly high. Certain references to the required standard of proof should be avoided. A reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context, and jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”. As well, the word “doubt” should not be qualified other than by way of the adjective “reasonable”.

That kind of interpretation would also apply to a judge who is conducting a trial without a jury.

As to Judge Devlin’s review of the evidence presented to her court, it left her with a doubt as to whether the Crown has proved the essential element involving identification and if that doubt was a reasonable one, then the defendant had to be acquitted of the charge.

I don’t think she had any doubts as to the honestly of Mitchell when he told the police that he was sure that the defendant was the one who attacked him. The judge’s doubt would be more related to whether or not Mitchell made a mistake involving the identity of the attacker when he pointed out the defendant as the boy who attacked him.

Many persons have been wrongfully imprisoned because of mistaken identification and this is constantly on the minds of judges when the issue of identity is raised in their courts. I have said it in an earlier article in my blog that it is better to release ten criminals who have committed the crimes than imprison an innocent man who didn’t commit a crime. Judge Devlin would have had that saying in her mind also. She like the rest of us are well familiar with some cases in which innocent persons spent years in prison, some even on death row and were later found to be innocent because they were erroneously identified as the criminals who committed the crimes.

Even if in her mind, the judge was convinced that the defendant before her was probably guilty as charged, probably guilty is not a reasonable assumption in a court of law. Probably means that there is still some doubt and having some doubt is what makes the doubt reasonable as it relates to guilt or innocence.

I am indeed sad for the parents of Mitchell as was the trial judge but our sympathies cannot be an element in a judge’s determination of whether or not a defendant is guilty. The judge didn’t have the luxury of including her feelings into her determination as she could only deal with the facts as they were presented to her. With Mitchell being deceased, the facts were not fully brought to her attention and for this reason; she had no other choice but to dismiss the charge.

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