SCRIBES DID LAWYERS' WORK

Three months ago, the Supreme Court of Canada issued a ruling
underscoring a jury's right to reach the verdict it wants, even if it
flies in the face of the facts.

The problem wasn't that the high court's decision was confusing and
open to misinterpretation. On the contrary, the ruling was crystal
clear.

Even if the evidence is "overwhelming," a judge can't order a jury to
bring back a guilty verdict, the court emphasized.

The difficulty, however, was that neither the judge, the defence
lawyer nor the Crown in the polarizing Kim Walker murder case knew
about the judgment.

At first blush, there would seem to be nothing in common between the
Supreme Court decision - which dealt with the pot-trafficking case of
marijuana activist Grant Krieger - and the gut-wrenching case of a
Saskatchewan father who shot his daughter's drug-dealing boyfriend.

But the power and role of the jury eventually became central in both
instances.

In the Krieger matter, two jurors asked to be excused in the middle of
deliberations, explaining they couldn't bring themselves to convict
the accused, who smokes pot to curb the symptoms of multiple sclerosis.

Krieger also provided pot to others for medical purposes.

The judge refused the jurors' request and ordered the jury to
convict.

Last October, the Supreme Court quashed the conviction and ordered a
new trial, explaining that the trial judge had reduced the jury's role
to a ceremonial one.

"Unfortunately, the trial judge usurped the jury's function," said the
high court.

The decision was widely reported in the media but, somehow, the judge,
the Crown and the defence lawyer in the Walker case missed the
significance.

Before she charged the jury last week, Justice Jennifer Pritchard
informed prosecutor Daryl Bode and defence lawyer Morris Bodnar that
she was not going to give the jury the option of acquitting Walker in
the death of James Hayward.

No alarm bells went off. They raised no objections.

"(We) didn't have a clue that (the Krieger decision) was out there,"
Bodnar told me yesterday. "It's so recent, I think only academics
would have known about it."

And journalists, too, actually. After the Walker jury had begun
deliberating, some of the reporters covering the trial began asking
questions, wondering why the defence hadn't raised the Krieger ruling.

"Interesting that a bunch of non-lawyers in about two days of doing
research can figure out what all these lawyers couldn't figure out,"
said one Saskatchewan journalist, who requested anonymity.

It's anyone's guess whether the jury would have acquitted Walker in
the 2003 shooting death of Hayward if given that option. The judge
told the jury to bring back a verdict of at least manslaughter.

When reporters told Bodnar about the Krieger judgment, the defence
lawyer asked for a mistrial but the judge refused.

The jury subsequently convicted 50-year-old Walker of second-degree
murder, which means he'll spend at least 10 years in jail.

Bodnar had pinned his hopes on a self-defence argument, but the judge
refused to allow the jury to consider it.

Self-defence is a real stretch - Walker shot Hayward five times,
including once in the back.

But a new trial based on the Krieger ruling is a virtual certainty.
Walker will probably get another chance.

"I think (the defence) is banking on the idea that even if this jury
didn't find the accused sympathetic, maybe the next one will," said
University of Alberta law professor Sanjeev Anand.

Judges generally aren't specialists and depend on lawyers knowing the
law, he said. "I think the blame has to be at the feet of counsel."

Added Anand: "Thank goodness there was a reporter in the room."