Monday 16 September 2013

Judicial  Mistakes  (Part I)

Let’s face it. Judges make mistakes.  After all, are they not human? Some mistakes are brought about by their opinions as to whether or not defendant is guilty or innocent. Sometimes they make mistakes because they have misinterpreted the law.  This article is about the second form of mistakes. You will find it interesting reading because the case itself was interesting.        

Just after midnight on February 28, 2011, the police saw a group of men arguing outside a building on Rogers Road in Toronto, Canada.  As the police arrived, the suspect and two friends left the scene and began walking down an alley. The suspect was holding his right arm in a manner that led one of the officers to suspect that he was armed. The police called for the three men to stop. Two of them complied. The suspect did not and began to walk faster. While one officer stayed with the suspect’s companions, the other officer, Constable Hayford, followed him, yelling at him to stop. The defendant began to run and turned into a second alley. When he reached a fence at the end of the second alley, the suspect fumbled at his waist band and then jumped the fence. He began to run again. A third officer testified that he ran around a building to where the second alley meets Scott Road in order to cut the defendant off. The officer yelled for the suspect to stop, but he kept running.  This officer, Constable Asner, was able to catch up to the suspect and arrest him after a brief scuffle. The suspect was charged with resisting arrest out of this scuffle. The trial judge acquitted the man of this charge and his acquittal is not an issue in this case.

Twenty-three minutes after arresting the suspect, Constable Asner, while searching the area, found a loaded handgun lying on the snow near the fence at the end of the second alley. A piece was broken off the gun’s handle. None of the officers had seen the suspect throw away the gun. On the other hand, the fact that the gun was dry, despite recent precipitation in the area, suggested that the gun had only been in the alley a short time. A fingerprint was found on the gun. That print did not belong to the suspect.

At trial, the defendant testified that, initially, he did not hear the police calling for him to stop. When he did hear the police, he did not stop because he was afraid the police would beat him up, as he believed they had done to his friend during a previous encounter between the defendant and the police. The defendant said he was clutching or adjusting his pants because they always fall down. A police video showing the defendant’s booking at the police station did not support this particular assertion by the defendant. The defendant denied throwing away the gun, and denied having any knowledge of the gun or that he had ever touched it.

The trial evidence concluded after a day and a half. The trial judge reserved his decision until the next day, at which point he delivered reasons acquitting the defendant of the resist arrest charge but finding him guilty of the firearm-related charges. He rejected the defendant’s explanation for not stopping for the police. He also found that the manner in which the defendant was moving was consistent with his carrying a concealed firearm. The fact that the fingerprint did not match the defendant simply showed that someone else had handled the gun and did not refute the possibility that the defendant also handled the gun. The trial judge concluded his reasons with the following:

“On the gun-related charges, the circumstantial evidence establishes that Mr. Griffith probably was in possession of the loaded Ruger that the police found at the scene. The issue I have struggled with is whether that probability rises to the level of proof beyond a reasonable doubt. The fact that Officer Hayford did not actually see him discard the gun is not enough by itself, in my view, to leave me with a reasonable doubt. I need not repeat again what I have already said about her evidence on that point. With the exception of the fingerprint on the gun, any other doubts that arise from the evidence are based on speculation or conjecture rather than any actual evidence or lack of evidence. [However] on consideration of the totality of the circumstantial evidence, I am satisfied that the Crown (prosecutor) has met its burden of proof, and I find Mr. Griffith guilty on the gun-related charges in the indictment.” unquote

The parties agreed that there should be pre-sentence report and the case was adjourned for about three months for that purpose.

When the parties returned for sentencing, the trial judge immediately began to explain that he had found his decision a difficult one and that in the days after the conviction, he felt quite troubled by his decision to find the defendant guilty on the gun charges. He went on to explain that when he returned to his notes of his decision while preparing for the sentencing hearing, the nagging feeling came back. He had therefore decided that he must change the decision, and gave his reasons for the change.

He stated that he would not change anything he said about the evidence or his assessment of it. However, when considering the cumulative effect and the totality of the evidence, the trial judge believed he did not give adequate consideration to the totality of the frailties of that evidence. The trial judge then listed some of these frailties such as; that another fingerprint was found on the gun and that the defendant was not seen dropping the gun despite the fact that Constable Hayford was observing him and that it was found only a short distance from the fence. The trial judge acknowledged that he had dealt with these frailties initially, but he then continued:

“I do not resilire (draw back) from these observations concerning the examination of these individual pieces of evidence, but the effect of minimizing the importance of these individual pieces was to fall into a trap, as I see it now, of not seeing the forest for the trees. Cumulatively, this evidence does lead to reasonable doubt. On December 21st, I concluded that, with the exception of the fingerprint on the gun, any other doubts I have are based on speculation or conjecture rather than any evidence or lack of evidence.” I was wrong, I considered the totality of the evidence from the Crown’s perspective, but I did not give equal treatment to the defence perspective. To convict Mr. Griffith raises the risk of a grave injustice. The Crown has presented a strong case, but I can no longer say in good conscience that I’m sure the gun was in the possession of Mr. Griffith. I must find him not guilty and I’m going to make that change in the verdict.

At this point, Crown counsel asked the trial judge whether he was functus officio and therefore unable to change the verdict. The trial judge stated that he was unable to find any law on the issue. He also stated that he had considered and rejected the option of simply declaring a mistrial because it was his responsibility, in a judge alone trial, to “make the call one way or the other, rather than simply say I can’t decide, or it’s impossible for me to say”. The trial judge went on to say that he was satisfied that he did have jurisdiction. When Crown counsel tried to state his position, the trial judge intervened and said that Crown counsel had put his position on the record. The trial judge then addressed the defendant personally, and explained that he was entitled to the benefit of a doubt and that he was finding him not guilty on all counts.

When a judge is functus officio, it means that he has completed his function as a trial judge determining guilt or innocence and therefore he cannot change his mind with respect to the decision the judge gave. Only the appeal court can make the change. Of course if that rule is followed to the letter, it would create additional expense to the defendant who then has to pay his lawyer to prepare the appeal even when the trial judge is now convinced that he is not guilty.  

The Crown appealed the judge`s decision. The issues before the higher court were two-fold. 1.   Did the trial judge have jurisdiction to vacate the adjudication of guilt? 2.   If so, what parameters should be set around the exercise of that jurisdiction?

Earlier, an appeal court ruled that a judge sitting without a jury is not functus officio until he has imposed sentence or otherwise finally disposed of the case. Therefore, a judge who has made a finding of guilt, either as a result of a guilty plea or on disputed facts, is empowered to vacate the adjudication of guilt at any time before a sentence is imposed. However, once the defendant has been sentenced, then the judge is functus officio.

That appeal court had also said that a trial judge has the power to grant an application by a defendant to reopen the defendant’s case after a finding of guilt so that the judge can adduce further evidence but the court stressed that the power to vacate the adjudication of guilt after a trial should only be exercised in exceptional circumstances and where its exercise is clearly called for.

The question before the appeal court in this instant case was whether or not exceptional circumstances were called for.

The appeal court said in part:  Since the trial Judge had a discretion to reopen the case and to permit the defendant [permission] to give evidence, the exercise of his discretion, unless he failed to exercise it judicially, is not subject to an appeal by the Crown which can be maintained only upon a ground of appeal that involves a question of law alone.”                                     

In this particular case, the trial judge’s decision to reverse his decision with respect to guilt or innocence of the defendant was based on the facts of the case and not solely on the interpretation of the law.

The crown counsel was desperate. He was clutching at straws while hoping that his case wouldn’t be submerged into the depths of the sea surrounding him.

He provided the appeal court a host of reasons why this discretion should be constructed narrowly, including the significant interest in finality of criminal proceedings and the practical reality that once the judge has delivered reasons, the intense interest and attention that he will have focused on the trial will wane as the judge turns to other matters. The Crown suggested that there are sufficient safeguards in the system, such as the broad scope of appeal, and for this reason, wrongful convictions should not be a concern. The Crown also provided a less compelling argument. The Crown submitted that if there were a broad power to reopen cases, every defendant found guilty would have an incentive to delay sentencing in the hopes that the judge would change his or her mind before the sentencing of the defendant.

Those straws in my opinion were as weak as a noodle in a pot of boiling water. Even an ant wouldn’t sit on one of those straws in hopes that it  could remain afloat.

It is ironic when you think of it. If the defendant was found not guilty and before he was set free and the Crown counsel discovered fresh evidence, the Crown counsel would move for a continuation of the trial faster than someone suffering from diarrhea would move towards the nearest toilet.

There is nothing in any previous appeal cases that would limit the power of an application to a judge by one of the parties to reverse his decision before sentencing.  As a clear example, if the law under which the defendant was convicted was held to be unconstitutional between conviction and sentence, it would be open to the judge to reopen the case and vacate the conviction, even if there had been no application by the accused or the Crown counsel.

Admittedly, when a judge, having already made a decision, publicly questions the legitimacy of his own decision on his or her own motion, the judge may appear to the parties and the public to have left the role of neutral fact finder and taken up a role closer to that of advocate when he rules in favour of one side or the other. However, that appearance is misleading because he has to make a decision for one side in any case, be it when he makes his first decision or the reversed decision.                            

The longer the time has elapsed between the finding of guilt and the reconsideration of the verdict, the greater the risk of an appearance of unfairness, an apprehension of bias or the possibility of a tainted decision-making process. However, there can be instances where the delay is justified. For example, suppose the judge finds the defendant guilty based on his interpretation of the law and before he sentences the defendant a month later, a higher court rules on the interpretation of the law that is in favour of all defendants, the judge could hardly be faulted or suspected of being bias in favour of the defendant. If fact, if he ignored the new interpretation of the law, he could be successfully accused of being in favour of the Crown.    
In a judge-alone trial, a judge cannot be required to sentence someone who he believes has not been proved guilty beyond a reasonable doubt especially if he had to reverse his decision in favour of the defendant before sentencing.

In this particular case, the Crown appealed the judge’s decision to reverse his finding of guilt and rightly so because the judge entered acquittals without first receiving submissions and entering a verdict of acquittal when he should have declared a mistrial.  The trial judge had publicly voiced concerns about his decision and had, without submissions, decided to set aside the finding of guilt. In the circumstances of this particular case, he could not realistically receive and consider submissions, as he should have, on the very issue that he had already decided. The procedure he adopted not only tainted the fairness of the process but undermined the legitimacy of the remedy. That is why he should have declared a mistrial and ordered a new trial.

A new trial was ordered that was to deal only with the weapon charges.




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