Judge's Charge To Jury Seen as Case for Appeal

Judge's Charge To Jury Seen as Case for Appeal
Posted by CN Staff on December 08, 2003 at 09:26:24 PT
By Dawn Walton 
Source: Globe and Mail 
Calgary -- A medicinal-marijuana activist with no defence for drug trafficking may have grounds to appeal his conviction, legal experts said yesterday, because an Alberta judge told the jury he was guilty and ordered jurors to convict him."The charge to the jury is so out there," said Sanjeev Anand, a professor of criminal law at the University of Alberta who is working on a book about juries. "This judge clearly went beyond established practice."
He said the charge to the jury was inappropriate in a legal system in which judges are supposed to guide jurors about the law, but still allows them to ignore it.This week, Mr. Justice Paul Chrumka of Alberta Court of Queen's Bench sentenced Grant Krieger to one day in jail (on paper, though -- not behind bars) for drug trafficking. Mr. Krieger is a 49-year-old multiple-sclerosis sufferer who admitted in court that he ran a marijuana-growing operation to provide pot for himself and the infirm. Judge Chrumka told the jury that because Mr. Krieger admitted all elements of the offence i, guilt had been proved beyond a reasonable doubt and with no defence, members must enter a guilty verdict.It took the jury more than 9 hours to convict Mr. Krieger, but not before two jurors unsuccessfully pleaded with the judge to remove them from the case, saying their consciences wouldn't allow them to find guilt. Judge Chrumka instructed them to follow his orders and finish deliberations.Mr. Krieger's charge of possession of cannabis for the purpose of trafficking stems from a 1999 raid on his Calgary home where 29 marijuana plants were seized. It was also his second trial. A jury acquitted him previously and the Alberta Court of Appeal ordered a new trial.Paul Burstein, an Ontario lawyer who has represented several clients in medicinal-marijuana cases, said juries are always allowed to disagree with a law they find offensive, a practice known as jury nullification. "As an appellate lawyer, I'm almost positive a judge cannot tell a jury someone's guilty beyond a reasonable doubt. No way. It's always open to a jury to disregard what they've heard," he said.Some studies have shown that when a jury departs from a strict application of the law, it is done to assert a general community sense of fairness. Jurors are supposed to work within the law, but the Criminal Code doesn't specifically ban a juror from ignoring it.Jurors in Mr. Krieger's case sent a note to the judge to ask for a copy of the oath they took at the trial's outset. Jurors agreed to offer a "true verdict" given in accordance with the evidence.In recent years, polls show that Canadians overwhelmingly support pot use for medical purposes, something the government supports, but hasn't been able to supply.Karl Wilberg, an Edmonton lawyer with the firm Andrew, March & Oake who has worked jury trials, said the case is ripe for appeal with arguments on both sides."There's nothing I could find that says a judge can take a case away from a jury," he said.However, in this case, where there's no legal defence, questions of fact for the jury to decide may be removed. That means the judge might be right to tell the jury what to do based on his determination of questions of law, Mr. Wilberg said. Source: Globe and Mail (Canada)Author: Dawn Walton Published: Friday, December 5, 2003 - Page A8 Copyright: 2003 The Globe and Mail CompanyContact: letters globeandmail.caWebsite: Articles & Web Site:Cannabis News Canadian Links of The Reluctant Jury Jurors Convict Albertan Pot Crusader Jurors Ask To Be Released from Pot Trial
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