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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