Racial jury selection 'doomed' Just Desserts

Toronto's notorious Just Desserts murder trial was "doomed from the start" after a trial judge naively invented an unorthodox jury selection technique aimed at including more blacks on the jury, the Ontario Court of Appeal was told yesterday.

The Globe and Mail
November 2, 2006

Racial jury selection 'doomed' Just Desserts trial, court told
Judge's attempt to include blacks tainted verdict, appeal court told
Kirk Makin

Toronto's notorious Just Desserts murder trial was "doomed from the start" after a trial judge naively invented an unorthodox jury selection technique aimed at including more blacks on the jury, the Ontario Court of Appeal was told yesterday.

The judge's misbegotten attempt to show sensitivity in the racially charged case backfired by depriving Lawrence Brown of a fair trial for the first-degree murder of Georgina (Vivi) Leimonis, lawyer Gregory Lafontaine argued.

"There is no discretion for a trial judge to stack a jury one way or the other in the selection process," said Mr. Lafontaine, appointed to provide useful arguments as a friend of the court.

"Would it have had any effect on the verdict?" he asked. "It is absolutely, completely impossible to divine. But at the end of the day, we cannot be sure the jury would have been composed the same way."

Mr. Brown is appealing his 1999 conviction for the killing, a crime that convulsed the city like few other murders in living memory. He uttered frequent, angry interjections throughout his trial, and labelled Ontario Superior Court Judge Brian Trafford a "racist."

In stark contrast, he uttered only a few disjointed remarks at the beginning of yesterday's proceeding. He said that he had been deprived of his case materials, that a guard had struck him on the head on the way to court and that Mr. Lafontaine was "participating in anti-state activities."

Mr. Lafontaine's call for a new trial was met with a broadside yesterday from Crown counsel Brian McNeely, who dismissed the jury glitch as an insignificant decision made by a judge who had every power to do so.

"Why should the people of Ontario be forced to spend another few million dollars trying this individual, when he has already been tried by a fair and impartial jury?" Mr. McNeely demanded.

"It would not do much for the public perception of the administration of justice if you order a new trial based on a jurisdictional error," he warned. "It might impress a first-year law student, but it's not going to impress the public who is paying for it."

Mr. McNeely said that the public profile and racial mudslinging that marked the Just Desserts case was virtually unprecedented in Ontario history.

"How many trials have featured such sustained and virulent attacks on the administration of justice?" he asked. "In how many trials has such a brazen crime been so politicized before trial as this one was? How many trials have involved such allegations that court officials were racist?"

Ms. Leimonis was shot during a bungled robbery on April 5, 1994, as she chatted with a friend in a trendy Just Desserts café in downtown Toronto. When three men were accused of her murder, the issue of race jumped on to front pages and permeated every step of the case.

Yesterday, Mr. Lafontaine elected to ignore every other ground of appeal but the jury-selection issue. He said that the law provides for lawyers to methodically select jurors after their assigned numbers are randomly called from a large jury pool.

In the Just Desserts case, he said, Judge Trafford went overboard in reacting to accusations that the entire trial process was racist and that the Crown intended to select an all-white jury. He said that Judge Trafford divided a massive, 1,000-person jury pool into 40 lots each composed of 22 individuals — and then showed preference to those lots containing black people.

Defence lawyers at the trial were leery about the move, Mr. Lafontaine said, and even the trial prosecutor opposed it — but to no avail. (Two of the jurors who were ultimately selected were black.)

Mr. Lafontaine said the theory underlying Judge Trafford's move was sadly laden with racial stereotypes. In reality, he said, a sense of anger felt by many members of the black community toward the defendants might have rendered them undesirable jurors from a defence perspective.

"Press reports were clear that a portion of the black community was very upset about what happened in the wake of the Just Desserts crime," he said. "It may be that there was a fear that they would take it out on those involved."

Mr. Lafontaine said that the skewed selection technique may also have excluded any number of solid potential jurors, including those from different socio-economic strata, gender and age groups.

"The Crown cannot say that the same 12 people would have been there," he said.

Mr. Lafontaine warned that if the appeal court gives its blessing to trial judges who cater to their own pet theories of demographic fairness, many lawyers are going to start applying for exotic processes.

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