Legal File: Rich Man, Poor Man: The Jury Problem

For several reasons, major fraud trials in Canada are tried without a jury, by a judge alone. One of them is that jury trials are anywhere from 50 to 100 per cent more expensive in time and money than non-jury trials. Everything takes longer. Concepts and points of law that are routine for a judge will often be novel and strange to a juror, so evidence must be presented slowly and carefully. Even for a wealthy accused, this is not an irrelevant consideration. Complex business practices and corporate manoeuvres may simply be unteachable in the courtroom setting. Ever since the O.J. Simpson criminal trial jurors told the media that they ignored the DNA evidence because “it was too complicated,” lawyers have been reminded of the limitations of juries.

More importantly, juries are viewed as unsympathetic in general to people accused in large fraud cases. The monies involved, the lifestyles enjoyed and the capitalistic attitudes of the accused are rightly perceived as alien and unappealing to the average juror. (One of Black’s potential jurors was dismissed after he said anyone who makes in a year what he makes in a lifetime must be a criminal.) Judges, especially those assigned to such cases in Canada, are usually experienced in commercial matters, accustomed to hearing of large monetary transactions, but are no less likely to have reasonable doubts about the wrongfulness of what the accused did than the average jury.

Finally, the prevailing wisdom is that not testifying hurts an accused more with a jury than with a judge. A judge understands the accused’s absolute right not to testify, and appropriately disregards that fact in assessing the prosecution’s case. No matter how often jurors are reminded that an accused need not testify and that the burden of proof is on the prosecution, they tend to equate silence with guilt. That is why an accused is more likely to testify in a jury trial—often to his disadvantage.

In Canada, an accused has considerable leeway to unilaterally dispense with a jury and stand trial by judge alone. Given his apparent disdain for the little people, it seems likely Black would have preferred a non-jury trial. In the American federal system, such a waiver requires the consent of the prosecution, and is relatively rare. It will be interesting during the post-trial analysis, whatever the verdicts may be, to find out whether or not Black or his co-accused did try to waive the jury in their case.

It may be that the ultimate result is grounded not in logic or legal principles or an understanding of corporate business practices. It may reflect that mysterious element we call human nature, which is found in abundance in every jury room. Research announced last week from a British university provides an example. “When it comes to crime, it pays to be good looking” was the headline. The study asked jurors to pass judgment on a fake mugging case. Half of the 96 participants were given a picture of an attractive suspect; the others received one of a supposedly ugly defendant. The case report was the same in both instances. The volunteer “jurors” were then asked to decide whether the suspect was innocent or guilty. Analysis of the results revealed that attractive suspects were more likely to be acquitted, despite there being no extra evidence in their favour. This “halo effect” is well known and applies to a variety of contexts, including white-collar cases. The Conrad Black jury panel consists of 14 women and four men, and after the alternates are dropped, Black and his co-accused could be judged by an all-woman jury who may—if he’s lucky—find him attractive.