Wednesday, November 08, 2006

 

Why talk of a mistrial? It's not necessary.

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Mistrial [definition from Duhaime's On-Line Legal Dictionary]

A partial or complete trial which is found to be null and void and of no effect because of some irregularity. The sudden end of trial before it would ordinarily end because of some reason which invalidates it. Once a mistrial is declared, the situation is as if the trial had never occurred. Some common reasons for a mistrial include a deadlocked jury, the death of a juror or a serious procedural and prejudicial mistake made at the trial which cannot be corrected.

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People are telling me that they fully expect there will be a mistrial in the Basi, Virk, Basi case. But why? And what does that really mean?

I've been googling until I'm GOOGLE-eyed, this evening ... asking over and over "Mistrial means?"

The Duhaime definition above, is saying that once a mistrial is declared, it's as if the trial had never happened. But does that mean the accused are set free?

Or does a new trial begin? Or what?

Then I searched for the valid reasons for declaring a mistrial. It looks as if the Judge carries the burden:

* if he/she fails in some way

* if he makes or allows a procedural error made at the trial which cannot be corrected

* if he shows bias

* if he doesn't allow time for subpoenas

* if the evidence has been in some way withheld or messed up

* if the trial itself has been unduly delayed thus creating a hardship for the Defendants ...

all quite logical and understandable. And in particular:

the Judge can correct most of those errors during a trial, without declaring a mistrial.

For example, the Judge could exclude whatever information the RCMP obtained in the wiretap to which Attorney General Wally Oppal objected. The Judge just wouldn't use that information, right? It's so simple. Why talk of a mistrial?

After looking at these explanations, what I'm thinking is this: that the lawyers for Basi, Virk, Basi, as well as Wally Oppal have spoken in favour of a mistrial before there's even cause to think of a mistrial ... because it's obvious that a competent judge could adjust matters to accommodate any of the Defendants' problems.

I'm thinking that Leonard Krog, the NDP justice critic, should remark upon this. Declaring a mistrial is not a good idea. I think we mustn't let anyone run away with this idea.

Did you think that mistrial meant dismissal? that it was game over, and B.C. would never get to the bottom of the Legislature Raids if the Judge declares a mistrial? Is that what you thought? Well, it's certainly what I thought. But that doesn't seem to be true; there seems to be a much better way to go forward.

What's your feeling about this?

- BC Mary.

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Comments:
hi bc mary,

delay would probably be the most likely cause for a mistrial here.

a 3 year wait for a non-violent offense is pretty long, but we'll soon see what the judge thinks of this.

i have heard of cases where evidence gets thrown out on constitutional grounds. if this happens the crown will need a back up plan if the trial is to go ahead.

that's as good as I can offer
 
Hi, Mayne Hermit, and thanks for your input.

Robin's 2nd report came in this morning ... after you read it, will you write again? I'm still shaking my head.
 
How did I miss this ...

RCMP scrutinized cabinet ministers

MARK HUME
Globe and Mail - 2 Nov 2006

VANCOUVER -- While pursuing an investigation that led to a raid on the B.C. Legislature in 2003, police established file records on two cabinet ministers and a prominent lawyer with political ties.

,,,,,,,,,,,,,,snip..............

This week, during an application concerning disclosure issues, court heard that police had accidentally taped a conversation between Mr. Collins and Premier Gordon Campbell while listening in on Mr. Basi's cellphone.

But the file list shows investigators had more than that accidental interest in Mr. Collins. A file list headed "Irrelevant/Privileged RCMP (CCS) Documents: Phase One" indicates police did a driving-record search on Mr. Collins, obtained vehicle information on him, and did BC OnLine searches for his private residence.

Under the "Irrelevant/Privileged" heading the RCMP also list a database query for Ms. Reid, and a BC OnLine search for Ms. Reid's residence. Ms. Reid, who did not run for re-election in 2005, could not be reached for comment yesterday.

Mr. Knott is named a dozen times under the "Irrelevant/Privileged" document heading.

In five of those files, the document type is identified as "CPIC/PIRS," indicating the RCMP were querying their Canadian Police Information Centre and Police Information Retrieval System databases for information about Mr. Knott.

Mr. Knott, who did not return calls to his law office yesterday, was also the subject of driving record and vehicle information searches, and his address and phone number were sought in a document identified as a "Person Locator."

Mr. Knott, a lawyer who has served on numerous charities in Vancouver, is a director of Harmony Airways, the airline company that Mr. Collins became president of in 2004 after he left politics.
 
I've found it pretty disgusting all along, since 2003, that the eastern press seemed to have more and more relevant coverage of this whole "case."

Justice prevails eventually! If the current excuses for "courts" prove to be shams and pretence Justice just eventually finds another venue in which to make itself apparent. It's kind of like physics, lack of balance and harmony is a temporary abberation. Under the "social contract" we submit to rules and procedures, if they become irrelevant, the physics of reality eventually kicks in. The criminals in Victoria disrespect our commonly shared system of justice at their peril!

The crooks to the south will need to testify under oath soon, can our minor leaguers be far behing?
 
behing is supposed to be "behind"
 
Mayne Hermit:

How could the Defence plead that it's necessary to declare a mistrial due to delays ... if they themselves had requested those delays?
 
Mayne Hermit:

And also: if Justice Bennett should, heaven forbid, declare a mistrial on Basi Virk Basi ... does this mean that a new trial will begin?

Or does it mean that somehow or other, the entire issue is deemed to be "resolved" ... and we'll hear no more about it?
 
Every single delay to date has been a delay from the crown, not the defence. I called Michael Bolton's office directly to ask this question to him. Also, defence lawyers don't go to court asking for an order for more disclosure if they are trying to delay the case.
 
Refresh my poor, tired brain please Tim: the crown and only the crown needs all these delays because why??

Forgive the quibble here, but how is it that you trust the veracity of the defence lawyers but not the RCMP or government or (presumably) the crown prosecutor? Honestly, I'm trying to understand, sorry if it's vexatious.

And I seem to recall that the defense was pleading work overload in the early days.

Many of us are learning, for the first time, about the law, the judicial system, and our civil society.

And you never know. Governed as we are by the Laws of Unintended Consequences, this hard-won knowledge may become more useful in the long run.

Thanks again, Tim. Your input is much appreciated.
 
You pose an excellent question Mary, one that I have been asking myself from day one. If this is such a massive criminal conspiracy why is it taking so long to get to trial? You really need to go to Vancouver and listen for yourself. I don't trust the rcmp or the government because of well publicized incidents of both washing each others hands. Do you remember Sgt. Pepper at the Apec protests? Lets not forget the fact the government and rcmp went after Brian Mulroney (my least favourite person) and the end result was $2 million in damages being awarded to this pillar of respect in our society. And finally the one that is so fresh in everybody's mind, the Arar affair. Do you really think they wanted Arar back from Syria alive so he could blow the whistle on such reprehensible corrpution and stupidity? Remember Arar is suing the federal government and the rcmp for 400 million dollars, thats our money Mary! Thats why I have a deep seated mistrust of the rcmp and government. Lets not forget Glen Clark.
 
Tim:

A lot of citizens "really need to go to Vancouver [Supreme Court] and listen for yourself" ... but have you been following the difficulties a layperson has, just trying to find out when and where?
 
I don't subscribe to the conspiracy theory, I apologize for that. Don't get me wrong I am very concerned about corrupt corporate interests taking our government hostage and making secret backroom deals. But in this John Doe stuff just call the defence lawyers and ask them when the next court date is. Every time I have called my questions were answered. Thats what intrigues me so much about this case, it seems to the stonewalling and secrecy is coming from the other side which is completely bizarre!
 
Tim,

Take this out of the little box marked conspiracy theories (such a useful little box -- intended to stop discussions) and let your idea extend to include all hearings, all trials, and all members of the public.

Then your advice becomes hundreds of calls to defence lawyers, whose time must be paid for by the poor sods who've been accused ...

The court system surely has to be a system, not a haphazard chase from one random lawyer to another. Thank goodness, it is a system. And the legal opinion (with which I concur) is that nobody is entitled to a selfish personal secrecy once they come before the courts.

Surely those who are accused are better served by having the public aware of their trial, watching it, and in that way sustaining a sense of democratic justice.

Why should people have to scramble around trying to discover the name of the accused lawyers? Why, when the published Court Lists are there for the public's use?
 
Good questions Mary! Please call the court registry and ask them why the public is being misled. Better yet put your questions in writing forcing them to respond.
 
Hi Tim,

Even better still ... read Bill Tieleman's report explaining what he thinks went wrong. His M.A. in Political Science didn't solve the mysteries. And no, for cryin' out loud, this is not A Conspiracy Theory. Useless terminology.

Someone (I forget who) thought a while ago that I was unfairly defending the RCMP. Well, John Ward, yes. Peter Montague, no. But the best one to talk about accusations against the RCMP is the former RCMP guy, Leo Knight, on his blog:

http://www.leoknight.blogspot.com/
 
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