Susan Clairmont: Sleeping, staring, and ‘horror’: Notes from jury at the Richard Taylor murder trial
Rarely does a juror write a letter to the judge during a murder trial.
It happens usually for specific and urgent reasons: the juror has a death in the family, or they realize they may have a conflict of interest, or they are ill.
At most trials, there are no letters at all.
At Richard Taylor's trial, there were six.
They ran the gamut from carefully considered to absurd.
Last week, after a month of testimony and two days of deliberations, the six women and six men of Taylor's jury delivered their verdict.
The jury foreperson told a packed courtroom they had found the husband, father and former elementary school teacher guilty of two counts of first degree murder.
Taylor, 46, will serve a life sentence with no chance of parole for 25 years for stealing into the Dundas home of his mother and stepfather and setting their bedroom on fire while they slept.
Carla Rutherford, 64, and Alan Rutherford, 63, were burned alive.
Taylor was in deep debt and stood to inherit his mother's estate.
The trial was long, gruesome and highly scrutinized.
Recently, advocates across Canada have called on our justice system to take better care of its jurors. Apart from conscription, jury duty is the only time Canadians are forced into service for their country. Being a juror is hard and important work and yet until recently, jurors have received little to no support as they are plucked from their lives, dropped into sometimes difficult and lengthy trials, made to absorb grizzly details and be expected to decide the fate of another human being.
Advocacy, financial compensation and mental health support for jurors is long overdue.
But has it emboldened jurors to overstep their role at a trial?
If juries are not understanding their role and they're getting into it with the lawyers and judges, I think judges need to shut them down," says Trevor Farrow, professor and associate dean at Osgoode Hall Law School.
Farrow, an expert on the administration of justice, made no comments specifically about the Taylor case, but rather the justice system in general.
Judges need to respectfully keep jurors in line to ensure a trial is managed fairly and efficiently," he says. With massive delays in the Canadian justice system, in part due to the pandemic, we need judges and lawyers to run trials as efficiently and fairly as possible."
In worst case examples, delays can lead to entire cases being tossed out for violating an accused's right to a timely trial.
Selecting a jury for the Taylor trial was no easy task. The pool of candidates were told Richard Taylor would be tried on two counts of first degree murder related to Carla and Alan Rutherford.
They were not told how the couple died. Nor were they told of the relationship between the accused and the victims.
Hundreds of potential jurors were dismissed for a variety of reasons. Fourteen men and women were selected after a long vetting process and sworn in, but then - to the vexation of Superior Court Justice Toni Skarica - several sent letters in the days following saying they couldn't serve after all. (One was sick, two had anxiety, one works in a specialized health care field and couldn't be spared from work, one decided it would be a financial hardship.)
More candidates had to be brought in.
Finally, there were 14 committed jurors.
Thank you so much. I'd shake your hands, or even hug you," Skarica told them.
Once the trial opened, the two alternate" jurors were excused.
The first letter came a few days into the trial, on May 16.
Juror 7 (jurors are referred to only by their number) wrote: Your Honour. Some of us on the jury have noticed that for a short time (seconds) ... you appear to be resting your eyes. Today it was approximately four minutes from 2:51 to 2:55 p.m. We mean no disrespect, just thought we should bring it to your attention."
Every letter takes time to deal with. First, it needs to be discussed without the jury in the courtroom, and then in their presence.
After consulting with the defence and Crown, Skarica then assured the jurors he is always paying attention. Sometimes he closes his eyes to concentrate on testimony.
The next day, May 17, there was another letter, from a female juror.
Your Honour, please accept our sincerest apologies for the note you received yesterday. We the jury, didn't know about it until you read it out to the court. It doesn't represent us all."
It said some felt the note had to be sent because there was concern a sleeping judge could cause a mistrial.
Skarica again assured the jury he was awake.
That same day, Juror 2 wrote a letter.
Your Honour, I am writing this to you concerning the disturbing nature of the evidence that is being presented to us," he began. Yesterday, we were shown dozens of photos of blood smears. Clearly some of these photos are necessary evidence if we are to piece together the movements of Alan Rutherford."
Juror 2 goes on to say the Crown's evidence went well beyond what was needed to establish certain facts as indisputable, and instead seemed intended simply to amplify the horrific nature of the crime."
In particular, a police photograph of Alan's charred skin on the kitchen floor.
I fear for what images or descriptions are still to come. If I was awake today at 4 a.m. thinking of yesterday's photos, what will happen if more grisly ones yet await? I know you mentioned counselling is available to us, but I would rather avoid being traumatized, if possible, than be offered help to recover from it."
Juror 2 asks the judge to be a filter for us" in deciding what is necessary to see. He wonders if disturbing photos are presented primarily for their psychological effects, so that we cannot help but be continually mindful of the horror endured by the victims and so, presumably, be less receptive toward the defence's case."
There is a lot to unpack there.
Who decides what evidence is important? Who decides what is too awful to show to a juror?
Defence lawyer Jennifer Penman raised concerns about autopsy photos the Crown planned to show the jury.
Janet Booy, Hamilton's acting head Crown attorney, said there is relevance to every piece of evidence" they were entering.
This is, unfortunately, a homicide," she said. A horrific homicide."
Skarica brought the jury in and read the letter to them. Some nodded, others shook their heads.
It's a very thoughtful letter," Skarica said. I know most of what's coming, but I don't know everything," he explained.
He has discretion to exclude evidence where probative value does not outweigh the prejudicial effect."
After hearing from the defence lawyer and the juror, the Crown decided against showing autopsy photos. The jury knew nothing of this debate, as it was discussed in their absence.
The evidence jurors experience has become more visceral and more graphic," says Mark Farrant, founder of the Canadian Juries Commission (CJC) which advocates for improvements to jury duty.
Investigators are able to collect more evidence through videos. Some criminals are recording their own crimes.
Jurors are seeing the actual crime being committed," he says. Is it really necessary to subject the jury to that kind of horror?"
Farrow, however, cautions against jurors having a direct influence on what evidence is produced at trial.
Our decision to have an open and public justice system is an important aspect of delivering justice. But it's not always an easy thing," he says.
Jurors are not in a position to know what evidence is relevant or not. Only the lawyers know how to best present their case.
It's not the juror's role to frame the case or curtail relevant evidence," Farrow says. By doing so, it puts a different voice into the adversarial mix that brings into question independence ... Juries get to decide after the fact what was persuasive. But it's not a real time conversation."
There is a remedy for this problem, says Farrow. During jury selection, lawyers can test" a candidate's willingness to be exposed to graphic evidence by simply asking if they can bear it.
At that stage, people who are just not up to it are able to be excused," he says.
Farrant endorses that approach, suggesting the judge may say the jury will be seeing some evidence that is going to be difficult."
The CJC is working on a pilot project with sheriffs in British Columbia to provide self-care solutions" to jurors during a trial. While in Ontario jurors are directed to ministry resources after the trial, B.C. is helping jurors cope with tough days in the courtroom as they happen.
Trials are difficult on many levels, but it is the price we pay for one of the world's best justice systems, Farrow says.
Justice is a fundamental issue, but it's not always easy. It deals with the stuff of life."
On May 18, another letter. Again from Juror 2.
Your Honour. Yesterday, when a certain document was being read aloud to the court, a name on the document was read as Rick" when, upon closer examination of the image shown on our screen, the name was actually Rich.' It seems that no one except some of us jurors caught the slip."
The juror asks if it is OK to interrupt the trial to ask clarifying questions."
That was a very astute observation," Skarica told the jury, advising if jurors can't see or hear the trial, they should raise their hand.
Anything more complicated, write out a note," he said.
May 19, another letter from Juror 7.
Your Honour. Good morning. Please inform the prosecution that I am indeed an emotional person. And there is no need for her to stare at me after emotional testimony or recordings."
I do not believe I am staring at the jury, Your Honour," said Booy, pointing out the Crown's articling student was seated next to Juror 2 and sometimes the Crowns look to her for help.
Taylor's lawyer simply said: I don't know what to say Your Honour."
Skarica told the jury: I haven't seen anything inappropriate."
Toward the end of the trial, another letter came from Juror 2.
Your Honour. As you are no doubt aware, having reams of information is only useful if you can find what you are looking for. In this case, we have hours and hours of audio evidence, with only paper transcripts provided so far. Would it be possible for us to be provided with soft copies of the transcripts as well?"
The short answer was yes."
The jurors had no questions during their deliberations. When they delivered their unanimous verdict, many wept.
Susan Clairmont is a justice columnist at The Spectator. sclairmont@thespec.com