HOWCAN YOU BE GUILTY OF ATTEMPTING TO MURDER THE MAN YOU KILLED?
The prosecution’s decision to split the total of nine shots Const. James Forcillo fired at Sammy Yatim into two separate charges is being lauded by some as a savvy strategy
“It’s clearly a compromise but in many ways it was a very intelligent decision by the Crown.”
SCOT WORTLEY UNIVERSITY OF TORONTO CRIMINOLOGIST
Almost one year to the day teenager Sammy Yatim was shot dead by Toronto police Const. James Forcillo, there came a “perplexing” new development in a murder case that was already being described in “never befores.”
The Crown lawyers, fastidiously preparing their second-degree murder prosecution against Forcillo, had laid a second charge against the officer in connection to Yatim’s shooting death in July 2013: attempted murder.
Coming after the officer’s preliminary hearing, the new — and exceptionally rare — charge made a seeming contradiction. The Crown was alleging Forcillo both attempted to murder and murdered Yatim.
The legal and policing community responded with bewilderment — this was a “head-scratcher,” a “mystery.”
But after a three-month trial and six days of jury deliberation, it was the only charge that stuck.
Forcillo was found not guilty Monday of second-degree murder in the death of Yatim, shot eight times by the officer while alone on the Dundas St. W. streetcar. Forcillo was also found not guilty of manslaughter.
In a precedent-setting case, the jury of seven women and four men found the officer guilty of attempted murder — a verdict only made possible by the Crown’s decision to split the total of nine shots by Forcillo into two separate charges.
With the verdict, the once-confounding attempted murder charge transformed into what some experts now say was savvy strategy.
“It’s clearly a compromise but in many ways it was a very intelligent decision by the Crown,” said University of Toronto criminologist Scot Wortley. “I thought it was perplexing at first. It makes sense afterwards.”
It became clear at trial that the new charge was added based on forensic evidence revealing the fatal bullets had struck Yatim during the first volley of shots. Those first three bullets — two of them to the chest — “fatally damaged” Yatim’s heart and severed his spine, according to the Crown. A third one fractured his right arm.
The other bullets — five of the six struck Yatim — hit his abdomen and groin when he was already on the floor of the streetcar.
The jury’s verdicts mean they believe that Forcillo was justified in fatally shooting Yatim with the first three bullets, or that the jurors had reasonable doubt on the matter. Or that he was acting in selfdefence in response to a threat.
However, what happened five-and-ahalf seconds later was not reasonable or necessary. None of those shots caused fatal wounds, though Yatim was minutes away from dying.
The guilty finding suggests the jury agreed with the Crown: Yatim posed no threat at that point.
The second-degree murder charge was laid in August 2013 — one month after Yatim’s death — by Ian Scott, then the director of Ontario’s Special Investigations Unit, the civilian police watchdog that probes injuries or deaths involving police.
Scott’s decision to lay the second-degree murder charge was made when he did not have access to certain information, including the results of forensic information or much analysis when it came to “what bullets entered the body of Mr. Yatim at what particular point in time.
Once the charge was laid, the team of prosecutors, lead by Milan Rupic, took over the case and did a “thorough analysis” including a careful examination of the case law in this area and realized that attempted murder could be an associated charge.
“I got to hand it to the prosecution team. In retrospect, it was a very wise thing for them to do,” Scott said. “Just a very fine analysis.”
The other view is that the Crown increased the likelihood of a “compromise” verdict by giving the jury the option of punishing the officer without finding him guilty of murder; history shows members of the public are reluctant to convict police.
“The concerns that many people had when (the Crown) laid this additional charge was that this may be the halfway house for the jury,” said Daniel Brown, the Toronto region director of the Criminal Lawyers Association.
“They might have thought he went all the way and intentionally killed him, but this was a kind of a way that he could be punished without being taken away for the rest of his life.”
David Tanovich, a law professor at the University of Windsor, said it would have been interesting to see the outcome if Superior Court Jus- tice Edward Then had heard the trial as judge alone.
There may have been less likelihood of the “enhanced credibility” effect — the phenomenon by which a police officer is perceived by members of the jury to be more trustworthy than other witnesses.
“I have a sense that, given his experience as a criminal jurist, it’s possible that, had it been judge alone, there could have been a conviction for murder,” Tanovich said.
But changes to the Criminal Code may be what it takes to truly hold police officers accountable following a fatal incident, says Toronto criminal lawyer John Struthers.
As it’s currently written, he said, the Criminal Code is “a blunt instrument.”
“I think there should be a new offence that’s put into the Criminal Code — and I think it should be specific: peace officer using excessive force, causing death.”
Before Monday’s verdict, Forcillo’s trial was already rare. Since the creation of the SIU in 1990, only one other Ontario police officer had been accused of murder for an on-duty shooting. But the charge never made it past the preliminary hearing, meaning Forcillo’s was the first to go to trial.
A verdict of attempted murder in a case where the injuries were in fact fatal appears to be exceedingly rare.
In 1983, a Texas man was convicted of attempted murder in the mercy killing of his 63-year-old comatose father. He shot his father, who then died two weeks later, and was sentenced to three years probation.