Flattering juror troubles court
Jury member sent Crown ‘thank you’ note, emails
“I absolutely enjoyed you and this experience.”
That was Juror No. 6, communicating via email in 2015 to Crown attorney Robert Johnston a few days after she and 11 other jurors found two men guilty of heroin-related offences in a case Johnston prosecuted at the Brampton courthouse.
On Thursday, Ontario’s top court found that notes she sent Johnston over several days were “concerning” but did not warrant granting an appeal to one of the convicted men.
“I conclude that a reasonable person, knowing all the facts, would not think that it is more likely than not that this juror, whether consciously or unconsciously, would not have decided fairly,” wrote Court of Appeal Justice Lois Roberts for a unanimous three-judge panel. “The appellant has not met the high threshold of demonstrating a reasonable apprehension of bias.”
The appellant, Ewah Godwin, was sentenced to 11 years in prison. His appeal lawyer, Paul Calarco, told the Star he would be seeking instructions from his client on next steps.
Just two days after the verdict was delivered on June 19, Juror No. 6 — whose identity, like all jurors, is secret — sent a handwritten note to Johnston, who is married, which contained her phone number and included the line: “I really wanted to thank you in person for choosing me to be part of the jury.”
In a July 4 email, she wrote: “When you said ‘thank you’ to us after the verdict was read and we were walking away, I wanted to say ‘you’re most welcome’ but honestly, I was so nervous and my stomach was in knots.”
On July 7: “You just crossed my mind so I thought I would say hi. Have a nice afternoon.”
There was no indication that communication from Juror No. 6 to Johnston took place before the verdict. Johnston gave the notes to the court, at which point Godwin’s defence lawyer asked the trial judge to bring the jurors back to ask if bias from No. 6 might have played a role in the guilty verdict. The judge declined to do so. “Had this issue come to light before the jury began their deliberations, the trial judge could have conducted an inquiry to determine the suitability of the individual juror or the jury as a whole continuing with the trial,” said criminal defence lawyer Daniel Brown, who was not involved with the case.
“The juror could have been dismissed or a mistrial could have been declared. Once the jury enters the deliberation phase of a trial, jury secrecy rules significantly limit a judge’s ability to make those same inquiries.”
Indeed, in the appeal ruling Thursday, Roberts said “there would have been no utility” to hold a jury inquiry post-verdict, saying such an inquiry “necessarily would have devolved into impermissible examination” of discussions protected by the jury secrecy rule.
The juror’s messages was one ground of appeal dismissed Thursday. Judges also dismissed Godwin’s sentence appeal.