Pubdate: Wed, 29 Jul 2015
Source: Standard, The (St. Catharines, CN ON)
Copyright: 2015 St. Catharines Standard
Contact: http://www.stcatharinesstandard.ca/letters
Website: http://www.stcatharinesstandard.ca/
Details: http://www.mapinc.org/media/676
Author: Bill Sawchuk
Page: A1

JUROR NEARLY CAUSED MISTRIAL

Court: Precedent-setting decision shows perils of jury deliberations in 
the age of technology

A precedent-setting decision involving two St. Catharines brothers
highlights the justice system's struggles to keep up with changing
times and technology.

A juror was found to have used his smartphone to do independent
research in the drug trafficking trial of Lucas and Leonard Farinacci
Jr.

However, an appeal court ruled last month the juror's use of Google in
doing that research wasn't enough to require a mistrial be declared.

"This is a precedent-setting decision," said lawyer Andrew Furgiuele,
who represented Lucas Farinacci during the inquiry into the jury's
misconduct.

"In my research it is one of the first times, if not the first time, a
jury has been called back in to face the trial judge in Canada after
the verdict. They had to give evidence under oath as to what was
happening in the jury room.

"I think what this case shows is the dangers of holding trials in the
modern era. I think it would naive of us to think jurors are not
Googling defendants in criminal trials, and jurors are not taking
advantage of (outside) information.

"I have very deep concerns. With the decision, the question becomes,
'How much is enough for a mistrial?'

"I was disappointed t he appeal wasn't successful."

A publication ban on the inquiry into jury misconduct imposed in a St.
Catharines courtroom in 2012 expired with the decision. The Standard
fought the ban all the way to the Supreme Court of Canada. Iain
MacKinnon, the lawyer who represented the Standard, said before a
trial begins judges instruct jurors not to read media coverage or do
their own research.

"What makes this case precedent-setting is the jurors got caught doing
it," MacKinnon said.

"For all we know, there are jurors on every panel who are doing it.
But at the end of the day, the court decided, in this case, even if
they did their own research the defendant received a fair trial."

The problems began in 2012, when a jury convicted the Farinacci
brothers.

Before the brothers were sentenced, a friend of the family overheard
one of the jurors discussing the case with a friend in a Tim Hortons.
What the friend heard was disturbing.

The friend went to the Farinaccis' lawyers. The lawyers asked the
judge for a mistrial, which the judge dismissed because the jury had
already rendered its verdict.

The judge did, however, order an inquiry.

The inquiry established a member of the jury had used Google to check
information on the accused.

A juror admitted to having read a four-year-old article in the St.
Catharines Standard right after the trial started. He said other
jurors wanted to know how old the defendants were, and that he looked
that up and told the other jurors their ages. He said he read
something about a marijuana grow-op and guns as well.

Other accusations were also made.

One of the jurors said another juror, known as Juror No. 6, had a
friend who was a retired police officer in Hamilton. The police
officer had told him the rest of the family had been charged.

During the inquiry, Juror No. 6 denied knowing any retired police
officers and testified he had said nothing about the charges against
other family members in the jury room.

The same juror t old t he inquiry another member of the jury, Juror
No. 11, said the brothers' father, Leonard Farinacci Sr., had spent
some time in jail. He also was alleged to have said police seized a
lot more money. That juror denied hearing or providing any
information.

Justice Gladys Pardu and a panel of two other Ontario Court of Appeal
judges weighed the evidence about the jury's independent research and
threw out the application for a new trial.

The judges ruled jurors "will inevitably be exposed to some aspects"
of a case through the media and from sources outside the trial.
"Jurors don't live in a bubble," Pardu said.

That fact they have what is known as extrinsic information, in and of
itself doesn't necessarily compromise the accused's rights to a fair
trial, she said.

Nonetheless, Furgiuele said jurors are required to follow the trial
judge's instructions.

"There i s often evidence that doesn't come out at a trial because it
is truly prejudicial or isn't relevant to the proceedings, but it is
just a click away," he said.

"Alternatively, you have instances in which the Crown would have
concerns. You could envision a situation where a police officer had
Police Services Act misconduct issues in the past that counsel knew
about but felt weren't relevant to the trial. You could have jurors
Googling that officer's name and coming to conclusions about that
officer. It can cut both ways.

"The system is dependent on jurors following their instructions, and
in a case like this there is a red flag goes up right away."

The Farinacci brothers will now have to serve what remains of their
seven-year sentences, minus time accrued in pre-trial custody and
during the appeal process.

"There are two points in the appeal process where the individuals have
to turn themselves in when they are out on bail pending appeal,"
Furgiuele explained.

"The first is the day before the appeal hearing, but the Crown will
often allow the person to be bailed out again the same day pending the
release of the decision. Then a day or two before the decision is
ready, the court will e-mail counsel the night before and they have
to be ready to turn themselves back in."

McKinnon said it's important the public knows information about the
jury inquiry, and fighting the publication ban was the right thing to
do.

"The Crown said we don't want reporters here because we don't want
these jurors to be embarrassed or ashamed or humiliated by what they
did," he said. "It would discourage and deter future jurors (from
participating in trials).

"In reality, it is the exact opposite. We have to make this
information public. We have to discourage future jurors from this kind
of behaviour.

"In fact, in the U.K. two years ago two jurors were sentenced to two
months in prison for similar activities. One guy posted a comment on
Facebook about a case he was sitting on and the other guy went and did
independent research.

"They were charged with contempt of court and did jail time. It was
that serious. The public needs to be aware it could cause a mistrial."

- ------------------------------------------------

[Sidebar]

Fight went to the Supreme Court

The Standard's fight to report on an inquiry into jury misconduct in
the drug trafficking trial of Lucas and Leonard Farinacci Jr. led all
the way to the Supreme Court.

And it was worth the effort, the lawyer who represented the paper in
the battle against the publication ban, said.

"We thought it was a terrible decision," MacKinnon said. "Our only
option was to go to the Supreme Court of Canada and ask for leave over
the publication ban, which is almost impossible to obtain. Less than 1
in 10 cases get heard. It is a very high test.

"(The newspaper) gave us the go-ahead, and we gave it a shot, but, in
the end, we didn't get leave. I wasn't surprised at the decision, but
it was worth a try."
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MAP posted-by: Matt