Friday, 29 January 2016

Can the cop who killed Sammy Yatim have his jury’s verdict overturned?

Generally any presiding judge (the judge that ran the trial) can set aside a jury's guilty verdict if he or she finds that it was against the weight of the evidence or it was not based on relevant law. A judge cannot overturn a not guilty verdict since only a court of appeal can do that.

Constable James Forcillo of the Toronto Police Service was convicted of the crime of attempted murder by a jury for shooting Sammy Yatim, an 18-year-old disturbed youth in crisis when he was lying on the floor of a streetcar while he was dying and completely disabled from a previous fatal wound to his heart and severance of his spine. You can get details on the shooting by reading my article that was published in my blog on January 27th.

Forcillo’s lawyer wants to have Forcillo’s trial judge vacate the jury’s verdict of attempted murder. In my opinion, it is a waste of the taxpayer’s money to proceed as I doubt that it will really succeed. Since Forcillo isn’t out of money for the services of his lawyer and the lawyer will get even more money from the Police Union to proceed further while the matter is going to end up before the trial judge again.

The application submitted to the judge for the stay of the verdict is based on the fact that Forcillo “substantially followed his training” which was provided to him by the Toronto Police Service and as such, did no wrong.

One aspect of the training is that police officers are trained to aim at a suspect’s chest and they’re told to shoot until the threat is neutralized—that is, until the suspect can’t continue the attack.     

There is nothing improper with that aspect of police training but in Forcillo’s situation, there was no immediate threat facing him. Yatim was on his belly in a streetcar dying from a previous fatal injury to his heart and he also suffered from a severed spine. It would be impossible for Yatim to get up and onto his feet and attack Forcillo who was standing at least twelve feet outside of the street car when he fired five more bullets into Yatim. It is obvious that Forcello was under no immediate threat from an attack by Yatim.       

At no time during his training was he instructed that he can shoot a suspect with a knife in his hand under those circumstances.                                                  

As I said in my earlier article, it is my opinion that Forcillo really wanted to kill the young man and the jury arrived at the same conclusion when they determined in their verdict that he intended to kill Yatim and that is why they unanimously concluded that Forcillo was to be convicted of attempted murder.       

The irony is that he really did kill Yatim when he fired the first volley of three bullets five seconds earlier in which one of them was fatal when it severely damaged his heart but despite that, the jury ruled that he was not guilty of murder because Yatim was moving towards him with a knife in his hand and for this reason Forcillo fired his gun in defence of his life.

However,  Forcillo didn’t know that he had damaged Yatim’s heart with one of his bullets from the first volley when he then shot him five seconds later with the next five bullets to finish him off. That is why the jury’s verdict was “attempted murder” since Yatim was still alive when he was shot the second time, albeit barely.   

Forcillo like all police officers was trained to be a killer and as such he actually killed someone. He can’t blame this on his training as a police officer. It is similar to what the Nazi defendants at the Nuremberg Tribunal said in their defence, “I was just following orders”

The legal community’s opinion on the likelihood of success of such an abuse of process application ranges from a flat zero to just shy of impossible.

It will fall to Justice Edward Then (the trial judge) to decide those very things—whether Forcillo was following his training, what the police training was and what responsibilities the Toronto Police Service and Forcillo bear in the killing of Yatim. That certainly will be dealt with in the civil trial in which Forcillo and the Toronto Police Service and others are defendants.

New evidence could be called in addition to what was heard at trial or alternatively, the application could be dismissed outright, with no findings on training at all.

If the application succeeds, however, the charge of attempted murder would be stayed. Further, the verdict of the jury would no longer legally matter. Forcillo would walk out of the courtroom as a free man. If that happens, as sure as God made little apples, Forcillo’s career with the Toronto Police Force will not be renewed. I am sure that would be the decision in his police hearing.

Abuse of process applications are generally heard after a finding of guilt and often take the form of entrapment cases where an offence was committed at the prompting of the police and for that eason, the state is not entitled to a conviction because what they police did was so improper.

This particular application is most unusual but it is not unique. More on that later. If it were successful, it would break an interesting legal ground. Not only is it difficult legally and factually to bring such an application into fruition, but the court will be extremely reluctant to sanction a process by which a jury verdict is set aside. The reason for this is that it is the jury`s responsibility to arrive at their verdict based only on the facts of the case and not on the law.

If the judge rules the police training is wrong, the directives from Toronto Police Service are wrong, the whole culture is wrong, and then the court cannot convict Forcillo for his actions in this instance. That prospect is highly unlikely.

If the judge dismisses the application, at which point legal experts say Forcillo would have to be taken into custody by law pending his sentencing, since he faces a mandatory minimum sentence of four years in prison.

I honestly believe that the police culture has much room for improvement but I can`t really fault the training the police officers receive in the province of Ontario.

Facillo didn`t follow the dictates of the training instructors. For example, the police officers in training are told to have a thoughtful planned approach and reassess the situation when they arrive at a scene where there may be some confrontation taking place.

In my opinion, Forcillo was right when he told Yatim to drop the knife. Yatim didn`t drop the knife so then Forcillo used profanities in a shrieking tone of voice to get the message across to Yatim. That was not what he was told to do in his training. He was told to switch strategies if his commands were not followed. Continuously screaming, “Drop the knife.” only aggravated the situation. That is when the officer should have attempted to reason with Yatim. Often police forces have officers especially trained to deal with situations like this but such officers were not called. They generally are called when the SWAT team is on the scene. Forcillo was not competent for that task and subsequently, he made no effort to create a calming dialogue between him and Yatim who was obviously in a heightened state of mind at that time.

Back in the early 1960s, I was asked to talk 400 prison inmates into not participating in a prison riot. I didn’t yell at them. I spoke calmly and I got the superintendent of the correctional facility to make some concessions for the men. They finally walked calmly back to their cells. The secret in negotiating is to speak softly, be reasonable in your suggestions and for the most part, everything after that will be OK. This is especially crucial when dealing with a person in crisis.

If F0rcillo had spoken softly to Yatim and asked him to drop the knife and then ask him what it was that he really wanted, things may have turned out better that they did. For one thing, Yatim wanted to talk to his dad on a cell phone. He wasn’t given a cell phone and instead he was continuously yelled at.  If he had spoken to his dad, the matter may have had better results.

Forcillo definitely didn’t follow the instructions in his training when he was told that when the danger isn’t immediate (and it wasn’t when Yatim was lying on the floor dying and unable to get up) there is no need to shoot the suspect. The firing of the bullets in the second volley by Forcillo was a complete contradiction of his training since the threat was no longer present.

There is one aspect of this sad tale that should interest my readers. We all know that Forcillo fired two volleys of bullets into Yatim, each volley being five and a half seconds apart. He was found not guilty of murder for firing the first volley which severely ravaged his heart which was fatal to Yatim and the second volley wounded him resulting in Forcillo being charged and later convicted of attempted murder.

As strange as this may seem, this isn’t the first time two similar charges have been laid against someone who brought about the death of a victim.

I will refer you to a case that was brought before the Court of Appeal in Ontario ten years ago.

Two men, both large men got into an argument and one of the men (Talbot) blindsided the other man (Sheldon) with a punch under his jaw. Sheldon was unconscious as he fell backwards onto the sidewalk. His head hit the pavement. About forty-five seconds to one minute after Shelton fell to the ground, Talbot walked over to where Shelton was lying and delivered a forceful pounding with his foot to Shelton’s head.  His head bounced off the ground. Shelton was rushed to the hospital at 3:47 a.m.  He died at 5:00 p.m. that day without regaining consciousness. 

As you can see, there are similarities in both Talbot’s case and that of Forcillo. Their victims didn’t die after the first forceful occurrence. It was after the second occurrence that both victims died.

With respect to Sheldon’s injuries, the cause of death was complications of blunt force head injuries.

During Talbot`s trial, Dr. Chiasson offeredhis opinion with respect to all of the injuries to Sheldon`s skull. He said, “It is my view that the pattern of injuries including the external injuries, the injuries to the scalp, the injuries to the skull, subdural hemorrhage, the injuries to the brain, all of that pattern of injuries is the kind of pattern of injuries that I have seen many times in the past as a result of striking the back of the head, without any other known impacts to that area having been inflicted. I’m referring to the impact to the back of the head as being the major blunt force, the major site of blunt force injury and it’s the complication. There’s been a period of survival here that’s allowed the brain to swell, that’s allowed the brain to herniate, and ultimately as part of that, you also have these hemorrhages in the brain stem.  So the brain stem hemorrhages are probably the most significant final complication or final pathway of the injuries.  But there’s been a period of time that’s passed by.  So, by complications, I’m referring to the swelling, the herniation effects, the brain getting pushed down into areas that it normally doesn’t. This compresses vessels and nerves.  And these hemorrhages, which is also as a result of this herniation effect.  Those are the complications but they’re all attributable to the blunt force head injury which is a combination of the skull fracture, the subdural hemorrhage and the hemorrhage within the brain itself.” unquote

 Dr. Chiasson was pressed by both the defence lawyer and the prosecutor as to the potential role that a kick or two kicks to the face or left side of the head could have played in Mr. Shelton’s death.  He testified that it was possible, but not likely that the kick or kicks could have exacerbated the skull fracture or bleeding of the brain caused by the blow to the back of the head that actually was the cause of his death.

As you can see, the similarities in Talbot’s case and that of Forcillo—the second assault on Sheldon’s head and the second volley of bullets fired into Yatim’s body were not what killed both men. It was the first occurrences that killed both men, albeit both men died after the second occurrences happened.

The prosecutor acknowledged that he could not establish that Talbot had the requisite intent for murder when he punched Mr. Shelton.  The prosecutor maintained, however, that the punch and the subsequent kick must be viewed as part of a single ongoing transaction during which Talbot assaulted Mr. Shelton by punching and later kicking him. 

Note the similarities between these two cases. In Forcillo’s case, the jury must have reasoned that the first volley fired at Yatim and the second volley fired at Yatim must be viewed as part of a single ongoing transaction during which Forcillo fired three bullets into Yatim and later fired five more bullets into Yatim.

If Forcillo had the requisite intent for murder at any point during the shootings and particularly when he fired the second volley of bullets into Yatim, he would be guilty of attempted murder regardless of whether or not the firing of the first volley was the cause of death.  

During the appeal in Talbot’s case, Justice Doherty said in part;

“……the question of whether the respondent’s (Talbot’s) actions were all part of a single ongoing transaction must be a question of fact and, therefore, it is a question for the jury.” (Juries are the 0nly triers of the facts of a case unless the trial is conducted by a judge alone.) 

Justice Doherty also said, “I agree with the Crown’s (prosecutor’s) alternate submission that on the evidence adduced in this case, there was no air of reality to the contention that the punch and the kick constituted two separate and discrete transactions.” unquote

In Forcillo’s case, the allegation that Forcillo’s conduct was part of an ongoing transaction as was the prosecutor’s’ theory of  a criminal act of the alleged attempted murder, it was the jury’s responsibility to decide whether the prosecutor has proved its case, including his theory as to the nature of the criminal attempt on the part of Forcillo. The jury accepted the prosecutor’s argument and convicted Forcillio of attempted murder because he fired the second volley of bullets into Yatim’s body while he lay helpless on the floor of the streetcar.

In any case, I hardly think that the trial judge in Forcillo’s case will concern himself with that issue while hearing the defence’s application to vacate the jury’s verdict since during the trial, he didn’t object to the two shootings being classed as a single event.

I strongly suspect that when Forcillo’s lawyer presents his application to the trial judge to vacate the verdict, the judge will give him about the same sympathy that one gives a mosquito that lands on someone’s arm—SPLAT.

And like a great many lawyers, it is conceivable that Forcello’s defence lawyer will take the matter into the Court of Appeal and perhaps even to the Supreme Court of Canada if the police union is willing to fund Forcillo’s defence any further. If not, Forcillo will have to fund his own appeals or alternatively, ask his lawyer to fund the appeal for him. Good luck on that prospect.

Meanwhile Lawyer Peter Rosenthal told the Toronto Star that it is his opinion that Sgt. Dan Pravica—the man who Tasered Yatim on the empty streetcar in July 2013 after he was shot by Forcillo, should be charged at least with assault.

As Sammy Yatim lay on the floor of the streetcar completely disabled and dying, he did not pose any danger to anyone. Thus, Tasering him was a completely unjustified assault. We cannot know if Mr. Yatim felt any effect of the Tasering as he was dying, but it was an assault in any event. If Yatim was actually dead by then, it would be an attempted assault on Yatim.

Another potential charge could be indignity to a body if it can be proven that Sgt. Pravica knew Yatim was dead before Tasering him. That would be hard to prove that the sergeant actually knew he was dead. But if he saw Yatim moving even a small movement, he could be charged with assault.

It’s unclear if the use of the Taser was investigated in 2013 by Ontario’s police watchdog, the Special Investigations Unit. A spokesman declined to say whether the evidence presented at Forcillo’s trial would now be reviewed, saying the matter is still before the courts, blah, blah, blah.

Here is some more blah, blah, blah, this time coming from the mouth of Mike McCormack, president of the Toronto Police Association. Does this mouthpiece for the Association really speak for all of the city’s cops? It’s actually Mike McCormack's job to speak for the thousands of unionized members of the Toronto police however in the wake of the trial of Constable James Forcillo who has been found guilty of attempted murder in the death of 18-year-old Sammy Yatim, I hope that McCormack doesn’t actually speak for all of the Toronto cops. Some of them who are descent cops will obviously have a different view of the verdict than what McCormack has.

Throughout the day, McCormack informed the media that his members, whom he would have had very little opportunity to speak to, were “shocked and dismayed” that Forcillo, who shot Yatim eight times, was found guilty.

Why does this Police Association  twit presume to tell the media that he speaks for all the members of his Association when he hasn’t spoken to each of the thousands of his Association’s members?

I have had over 766,000 hits of people around the world who have read my blog and I certainly don’t speak for all of them. I speak for myself and no-one else. McCormack should do the same but then that is asking far too much to expect from this mindless twit.

This twit said at the scrum meeting with the media when speaking of the jury’s verdict said in part, “What kind of message does that (verdict) send to our front-line officers who are out there every day dealing with violence and dealing with weapons?”

Well for one thing, the message is that if a police officer acts like Forcillo did, he or she will also end up before a jury trying to justify what they did.

He added, “Clearly, that sends a chilling message to our members.”

I sure hope it does. It is very likely that many decent Toronto police officers were shocked and dismayed also like me and thousands of other citizens when we watched Forcillo's reckless conduct shown on video as he shot a dying and completely disabled man lying on the floor of the streetcar.

The police have a tough job which is known by most if not all of us citizens. But like the rest of us, police officers are expected to not only enforce the law; they also must obey the law. They are given extensive training to make sure that they don’t break the law. Unfortunately, some do just that despite the training they got.  

McCormack should stop his whimpering on behalf of Forcillo and try to re-enforce the goodwill of the police officers in his Association by telling them that they are expected to adhere to their training and not deviate from it like Forcillo did. He should also add that the training the police officers get was not at fault for Forcello’s deviance from his training.

Once the defence lawyers and police spokespersons begin making their asinine statements made to the media, it gives way to a meaningless defensive public relations exercise.

Listening to twits like MacCormack brings to our attention that their police culture seems to breed an outward face of inevitable combat rather than compassion, especially for the mentally ill suspects who are in crises when the front-line police such as Forcillo arrive on the scene.

A retired 30-year police veteran told a respected journalist with the Toronto Star that he believed Forcillo acted too quickly, that none of the officers around him saw the need to get so close to Yatim.  Actually as per their training, they should have been 30 feet away from Yatim. They ignored that aspect of their training.

Chris Lewis, a 36-year veteran of the Ontario Provincial Police and a former commissioner of that service, was bold enough to criticize in public Forcillo's conduct. He described Forcillo as “an aggressive officer that was looking to win this situation quickly.” Lewis also countered Forcillo's argument that he merely followed his training. Lewis stated that when police encountered Yatim, it was their duty to contain him on that empty streetcar; isolate him; evacuate the area immediately around the vehicle in the event that he left it; and negotiate with him to drop the knife so they could bring about his arrest peacefully. None of that was done when Forcillo was in charge of the situation after he arrived on the scene.

I do not believe McCormack is genuinely worried about the dangers of police obligation of thinking twice before shooting a civilian. This twit surely knows they should. But his decision to structure Yatim's death in his own way will invariably widen the confidence gap between police officers and the increasingly skeptical public they serve.

UPDATE:  In July 2016, Forciljo was sentenced to 6 years in prison for the attempted murder of Yatim. Go to August 7th 2016 for more details. 

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