Whatever the jurors decide, if ever they do, the world will never know what took them so long. Christie Blatchford
It appears some may have considered lawyers’ closing addresses as evidence
As the deliberations in the trial of two alleged Via train terrorists drag on, perhaps the only one left in the courthouse who can still muster any semblance of equanimity is Chiheb Esseghaier.
As he put it inimitably one day this week, when people ask him if he’s scared, he answers, “Why would I be scared? ... Me, I believe my future is in the hands of God, not in the hands of the jury.”
This was one of Esseghaier’s voluntary offerings to Ontario Superior Court Judge Michael Code.
Esseghaier, a 31-year-old former PhD student from Montrealvia-Tunisia, and Raed Jaser, 37, of Toronto, are pleading not guilty to multiple terrorismrelated offences in connection with a 2012 plot to derail a New York-Toronto passenger train.
The case that appeared relatively straightforward seems to be confounding the jurors, who Tuesday begin their seventh day of deliberations.
They have returned to court three times to make inquiries of Code — the first time for a big-screen TV on which to watch some of the video evidence, the third time to complain that they were interested in a small section of one wiretapped conversation but the evidence disc they had was scratched and, the second and most alarming request, to ask for printed copies of the closing addresses of the lawyers.
That request was unsettling because, as the judge and lawyers had told the jurors repeatedly, their addresses — these are at best part-reviews of the evidence and part-stirring entreaties to convict or acquit — aren’t themselves evidence and aren’t to be treated as such.
As Code explained this, again, to the jurors when court was recalled briefly to deal with the matter, several of them nodded vigorously, while others sat expressionless.
It all seemed to suggest that even on the fifth day of deliberations, there were people in that jury room who may have believed what the lawyers said was evidence and who were looking to be persuaded by it.
It’s not that there’s a lack of evidence in the case — the jurors have almost three weeks of testimony from the undercover FBI agent who was posing as a jihadist sympathizer and terrorist bankroller; 25 hours of secretly recorded conversations of Esseghaier and Jaser luridly discussing the train plot and others more fanciful; and video surveillance of the pair scouting out potential target sites in southern Ontario.
And there was no defence evidence, nor even a suggestion that the agent in any way entrapped the two men.
Esseghaier was self-represented, but didn’t participate in his own trial. As Code solemnly repeated every day, Esseghaier wanted the matter tried under the Qur’an and when that wasn’t going to happen, agreed to attend, but considered himself not an accused person, rather a visitor who offered “sincere advice” to the court.
Jaser had two excellent counsel, John Norris and Breese Davies, but they called no evidence.
If there was a benign interpretation of the jurors’ second question, it eluded most of us who have been awaiting a verdict.
And the simple truth is, whatever the jurors decide, if ever they do, the world will never know what took them so long.
A decision in a judge-alone trial can be appealed, and routinely is — because the judge’s reasons are public, the debatable mistakes there for the arguing.
Jurors’ deliberations, and whatever reasons they may have for reaching a verdict, are so secret that disclosing those discussions is a Criminal Code offence.
And these particular jurors, as Code noted this week after they complained about their scratched disc, are “obviously very meticulous about wanting to protect the privacy of their deliberations.”
He made the remark after, with input from the lawyers, he’d offered the jurors four options — they could try a copy of the disc; they could try another computer; or, if they were willing to disclose what conversation they were interested in, that small part could be played in open court, either by playing the original disc or by playing the official court recording of it.
The jurors “respectfully declined” the options that would have meant showing their hand or disclosing which part of which wiretap they wanted to hear.
So then, are they divided? Or, far more worrying, is it rather that, as a reporter colleague put it the other day, their second question provided “a shocking look” inside the heads of the average citizen-turned-juror “who has to think for himself and make a decision that actually has consequences” and who was looking for someone else — in this case, the lawyers through their closing remarks, “to make the hard decision for them?”
In the interim, those of us who sit and wait indulge in fantasies — the most amusing of which has the women reporters (most of us covering this case are women) fill the front row the next time we are summonsed into court and in unison flash the two devout accused.
The bet is they’d take a quick peek before calling down the wrath of Allah upon us.