The Luka Magnotta trial and the strategies behind jury selection

Luka Magnotta's lawyer spoke to the media as jury selection in Magnotta's murder trial got underway, to stress the importance of jury selection. Luc Leclair called it "the most important step in the process."

He said he and his client will be looking for jurors who are "truly impartial," while noting that it won't be easy, as expected with a high-profile and sensational case.

Trial lawyer Steven Skurka, co-author of Jury Selection in Criminal Trials: Skills, Science, and the Law, says for most trials, even murder cases, the jury vetting process takes just a day, but the Magnotta case "calls for and demands a particular attention to ensure that it's fair."

The Magnotta trial begins the second stage of the jury vetting process Tuesday, with more than 300 potential jurors remaining after the first stage conducted last week.

While the myth that a juror's oath would ensure their impartiality in most circumstances evaporated long ago, Skurka says "we rely on people coming and honestly telling the court whether or not they can try the case impartially, whether or not the saturation of news media and social media about some of the more sensational aspects of this case has impacted adversely their ability to try this case fairly."

That does not mean jurors should not know about the case. In fact, Skurka says that if it was his case and "someone said they'd never heard of Luka Magnotta, that would cause me enough suspicion to likely exclude that person from the jury." For Skurka, that would simply be difficult to believe.

In 1995, Paul Bernardo's murder trial was moved from St, Catharines to Toronto in hopes of averting problems with pretrial publicity in that small city. It's hard to see how relocating the Magnotta trial could make any difference in 2014, given the massive media coverage.

Difficult case for jurors

In the first four days of jury selection for the Magnotta trial, about 1,600 potential jurors were reviewed. Most were granted exemptions from serving on the jury, most commonly because they didn't meet the requirement for this trial that jurors be bilingual. Although the trial will be conducted in English, some testimony will be in French.

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Many of the potential jurors have expressed concern about the graphic nature of some of the evidence that may be introduced. "These aren't people who are trying to get off the jury, these are people who are being quite legitimate about their well-founded concerns to try the case," Skurka explains.

"It's going to be very difficult and challenging for any juror who sits on this case, given the nature of the evidence that we're already aware of, and if someone is incapable of being exposed to that evidence, and says they simply can't sit in a courtroom and listen to it and view it and simply can't be fair, they're entitled to do that and I think the judge is correct in making that determination."

The Crown and defence can raise challenges about prospective jurors. Those lawyers can make a limited number of peremptory challenges for which they don't need to provide an explanation. 

Then they can make a challenge for cause. This is when potential jurors get asked questions that the court has agreed to permit, in order to determine, based on their answers, if that person would be suitable as a juror.

Skurka describes this as "an added buffer of protection to ensure fairness."

Defence strategy

So what is the strategy of the two sides during the all-important jury selection? The lawyers start out knowing just the gender of the juror, the general area where they reside and their occupation or employment status.

They will be watching for visual clues. "You always have to judge the juror based on the particular moment," according to Skurka.

Leclair, Magnotta's lawyer, says he doesn't have "some big plan." He does say he will be looking for "people with an open mind, people who are intelligent and people who are going to listen."

Montreal criminal lawyer Eric Sutton told CBC reporter Tanya Birkbeck that "the defence will be concerned if any potential juror has any affinity for the police or has police officers in their family."

Skurka adds that in the Magnotta case, the defence doesn't want a juror with a political background, given that one of the charges is criminal harassment of Prime Minister Stephen Harper and members of Parliament.

During the questioning, an accused's attorney observes a prospective juror, and "if they won't look at your client, for example, that's always a bad sign for a lawyer," says Skurka.

Prosecution strategy

For visual clues during questioning, the Crown prosecutor, Louis Bouthillier, will be watching for signs a potential juror is overly nervous or too emotional, according to Skurka. And they don't want someone who's squeamish.

"It's going to be the way a prospective juror handles himself or herself in the courtroom for the few minutes the Crown [prosecutor] has a chance to view them before he makes that determination."

Skurka rejects the old lawyers' lore that prosecutors in criminal trials don't want teachers on the jury because they will be empathetic and forgiving towards the accused. In the high-profile Maple Leaf Gardens sex abuse case in 1999, Skurka represented John Paul Roby. Although his client was convicted, Skurka says it was "a fabulous jury."

The bottom line, Skurka says, is "the Crown wants to get a jury that can avoid any emotional tug that the defence can play in this case, although it's going to be difficult, and just try the case on the evidence and not be overwhelmed by the nature of the evidence."

And the defence wants "people who can be fair-minded and can listen to the judge's instruction and can wait until all the evidence is in... people with an open mind who aren't overwhelmed by the media saturation and social media that has impacted already on this case."

All that said, Sutton points out that "trials are notorious for reserving major surprises."