Pickton lawyers, judge have big job to sum up year-long case and sway jurors

Canadian Press

November 16, 2007

NEW WESTMINSTER - Eric Broadhurst understands the onerous task facing jurors deciding the fate of accused serial killer Robert Pickton.

Broadhurst, now retired, was a juror at the trial 12 years ago in Toronto of infamous sex-killer Paul Bernardo, who was convicted and is now serving a life term in prison. For four months, Broadhurst listened to evidence.

The Pickton jurors sat for more than twice that long, hearing from 98 Crown witnesses and 30 defence witnesses.

Starting Monday, those 12 Pickton jurors will have to listen closely as the Crown and defence deliver their final arguments, followed by at least three full days of instructions on evidence and the law from Justice James Williams.

And Crown and defence lawyers, as well as the judge, will face one of the toughest challenges of their careers to summarize what has gone on in the trial since January.

"All of us realized, I'm sure, that we had to really crank up the antennas because this is a summation of everything that preceded," said Broadhurst. "So we really, really listened hard."

Jurors are instructed before they begin hearing evidence that they can take notes if they wish, but it's not a requirement.

Broadhurst didn't - like some of the Pickton jurors - so listening closely to final submissions is crucial.

"I think you get rejuvenated at this stage (final arguments) because you know that it's coming to an end," said Broadhurst.

He remembers the style of the Bernardo trial lawyers in their final submissions.

Bernardo's lawyer was "quite a colourful character and I guess he really held the jury and piqued their interest, whereas the Crown lawyer tended to be dry and showed no humour," said Broadhurst.

Susan Wishart, a Victoria-based defence lawyer, said there is no manual for lawyers to guide their final argument and hold the jury's attention.

"Lawyers absolutely have their own individual style," said Wishart, a regional spokeswoman on criminal matters for the Canadian Bar Association.

"If a lawyer tries to go beyond their personality, they come off as being fake and you don't want the jury to think you are putting on a show or in any way trying to be something you're not."

Defence lawyer Michael Mulligan has been in front of many juries.

"It's very hard for a person to pay careful attention when someone is speaking to them for more than an hour and a bit," said Mulligan, a well-known defence lawyer in Victoria.

"In an ordinary case, one that isn't like (Pickton), one of the things I make a real effort to do is to try to keep my submissions to that sort of length so that a person is reasonably able to follow.

"If I'm standing there and talking at you about things which are complicated, many people's eyes are glazing over."

The Crown and defence each have a day and a half to make their final summations. Then Justice James Williams is expected to take three days to deliver his instructions.

A superior court judge, who did not want his name used, expressed sympathy for the lawyers and the judge involved in the Pickton trial.

"That's really long, but I'm not going to be critical of that," said the judge.

"The thing they've got to watch out for when they are taking that long in submissions and charges is that plenty of breaks are given.

"Judges are taught about the length of time that you are able to go on before the eyes start to glaze over."

The judge estimated his longest charge to a jury - four hours - was after a trial that lasted eight weeks.

"I think that was probably too long, but I was inexperienced as a judge."

Wishart pointed out the judge's final instructions to the jury on the law can be complicated, sometimes even for the lawyers.

"It's very difficult as counsel sitting there, even knowing what the law is, to understand and pay attention. It's a very exhausting process for the jury," she said.

All the Crown and defence lawyers can do, she said, is "hope they (jurors) are paying attention."

"I'm sure they understand how serious all of this is, so I expect the jury will pay close attention."

She acknowledged, however, that no one in Canada really has any idea of what juries focus on because discussing their deliberations afterwards is illegal.

The superior court judge said he appreciates the daunting task facing Williams.

Appeal courts are "very picky" about jury charges so Williams's "dilemma" is to not keep the jury any longer than is necessary.

"I don't have to tell you that if you're going for three days, the longer you talk, the more opportunities you have for making a mistake," he said.

He said he expects Williams and the Crown and defence lawyers have had a "pre-charge conference" in which the judge has briefed both sides on his charge to get their opinions.

"My principal belief is we want to do everything we can to avoid this case coming back a second time" after an appeal.

The judge also faced juries many times before his appointment to the bench and said simple common sense applies for final submissions.

"My philosophy is that during the trial and in your submission you portray yourself as the most reasonable, courteous and polite individual going," he said.

"Whatever you do, you don't stand up there and read to the jury, and you don't patronize them. It's kind of like a fireside chat where you're just talking to them about what happened and here's my position."

Mulligan said the defence shouldn't even attempt to go over all the evidence - something that would be nearly impossible in the marathon Pickton trial anyway.

But don't get too cute, either.

Mulligan recalled a story in which a defence lawyer delivered his final submission in song.

"From what I heard it was not too effective."

And when it's all over, Broadhurst said jurors should expect to feel exhausted, mentally and physically.

He and the other Bernardo jurors were offered counselling and he expects the Pickton jurors will get the same.

"You know, time heals all wounds but at that time it was pretty traumatic," he said, estimating that he and about six others went for counselling.

"You' ve been so pent up for all of these four months (in the Bernardo trial), unable to talk to any person anywhere about this, all contained inside yourself.

"To have the opportunity to just dump, empty the bucket, when it's all over was therapeutic in itself."

Pickton is facing six counts of first-degree murder in connection with the disappearances of women from the Downtown Eastside of Vancouver. He is to face another 20 counts at a second trial.

Copyright 2007 The Canadian Press. All rights reserved.



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