Making Faces

One of the things a person learns in the practice of law, is that the human capacity for the bizarre is boundless.

This is a phenomenon richly demonstrated in the tale of Paul McCulloch Alexander.

Paul McCulloch Alexander was second counsel in the first prosecution of Erika Mendieta 34-year-old mother of five who is charged with second-degree murder in the beating death of her three-year-old daughter, Emmily Lucas. That trial ended with a hung jury.

He was not assisting at Mendieta’s retrial, which had been proceeding relatively uneventfully until November 22, 2010, when the jury sent a note to the trial judge complaining about a blond man sitting in the gallery that was making them uncomfortable by “making strange faces all the time”.  As it turned out, that blond man was Alexander. He had positioned himself so that the jury could see him making contemptuous gestures and facial expressions during Mendieta’s testimony.

The jury asked the trial judge to have him removed. The trial judge dissolved the jury, and has been considering the defence’s request to have this murder trial proceed with the judge sitting alone.

Obviously, there are at least two questions that arise from this unfortunate set of circumstances.

Was it ethical?

The Globe and Mail has reported that Alexander likely faces discipline. That should not come as a surprise. The Canadian Bar Association Code of Conduct is very clear on this point. Chapter IX provides:

When acting as an advocate, the lawyer must treat the court or tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law.

Commentary 2(d) expressly prohibits a lawyer from “…attempt[ing], or allow[ing] anyone else to attempt, directly or indirectly, to influence the decision or actions of a tribunal or any of its officials by any means except open persuasion as an advocate.”

With good reason.

Paul McCullough Alexander’s actions, at least as alleged, obscure the function and role of advocate. Controversial matters tried in a public courtroom are bound to elicit some reaction from members of the public in the gallery.

Lawyers, however, are in a different position. There is something deceptive about the conduct of a lawyer affiliated with counsel on one side of a case, who then sits in the gallery attempting to influence the tribunal outside the litigation process. It distorts the trial process.

At the very least, it exhibits poor judgment, and a lack of professionalism.

Should it result in a mistrial?

Christie Blatchford has written, emphatically, that it should not.  I think she’s right.

There was never a need to discharge the jury. The jury’s note, and the fact that they asked for Alexander’s removal, make it clear that they were not influenced by Alexander’s antics.

Juries have served our system of justice well for hundreds of years. They bring common sense and an element of democracy to the trial process, particularly where the outcome depends more on resolving issues of fact, rather than setting new legal precedent.

Almost invariably, jurors take their oath, and their civic duties very seriously, trying their best to do justice between the parties.

Unless there was very clear evidence that the jury would have disregarded the evidence in favour of external influences, it should not have been discharged. Doing so has cast unnecessary doubt on the jury system, and has shone as negative a light on our system of justice as Alexander’s antics.

Hopefully, the trial can be salvaged by proceeding with the trial judge sitting alone.