Tuesday, 26 January 2016

Confusing Verdict

Suppose you take a gun into the bedroom of a sleeping person and unload six shots into them. In most circumstances that is going to be murder. But if the person is actually already dead then that's attempted murder. You tried to kill them, but you failed because they were already dead. In a way it almost seems unfair. If you are convicted you go to prison for less time than if they had been alive despite the fact that your action was the same in both circumstances. Criminal law cares about outcomes, though, and someone ending up dead is an outcome worth caring about.

In the summer of 2013 Officer James Forcillo of the Toronto police responded to a call. Teenager Sammy Yatim was on a streetcar acting erratically and he was armed with a knife. Forcillo fired his gun three times shortly after arriving, causing Yatim to fall to the floor of the streetcar. Forcillo then unloaded six more shots in Yatim's direction.

The verdict came back yesterday: Not guilty of murder, not guilty of manslaughter, not guilty of aggravated assault, guilty of attempted murder. Both the Star and the Sun have headlines that ask - I'm paraphrasing here - "Are you confused by the verdict?"

The scenario above is exactly what happened. The jury didn't feel they had enough evidence to convict Forcillo of killing Yatim. Yatim did, in fact, have a knife. He was, in fact behaving erratically. He had been, in fact, threatening people. Confronted with an armed, erratic person, maybe Forcillo did the only thing he could do to defend himself, a jury might think. I don't think this is true, but it appears, from the verdict, the jury didn't feel they could rule it out.

No one, however, seems to think that putting six additional rounds into Yatim which he was lying on the ground was okay. I'm sure this sort of thing happens on a lesser scale all the time. Person A punches Person B. Person B hits back to defend himself. Having knocked A to the ground B decides to pile on and get a few more hits in to teach A a lesson. The first punch from B was a reasonable use of force in self-defense. After that it became anger or vengeance or something else. In this case both A and B may well be guilty of assault.

So what really happened yesterday was we saw the fruition of a strategy by a very clever prosecutor. Given the choice of murder or not murder, it was a toss up what the jury would do. I think most people had a gut feeling that something was wrong with the Yatim shooting, but the jury is charged with delivering a guilty verdict only beyond a reasonable doubt, and that standard seems to become insurmountable when the shooter is a police officer. The prosecution knew this, so they gave the jury another option, the option to find him guilty of firing the six additional shots without finding him guilty of firing the first three.

I think had they given the jury the options of second degree murder or manslaughter they may have had an acquittal, and manslaughter would have been the best they could have hoped for. Interestingly, the punishment for attempted murder and manslaughter in the criminal code is the same: life in prison with a minimum of four years if you used a gun.

There's nothing confusing about the verdict at all. For many people it sounds wrong: how can you be convicted of attempting to kill someone who you, as a matter of fact, killed, only seconds earlier. From a legal perspective there is nothing strange about this at all - maybe rare, but not strange.

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