Betsy Powell, The Star
A just-completed Toronto murder trial went from strange to stranger when a juror sent the judge a note entitled “Threatening Behaviour By A Member Of The Jury.”
Juror #5, she alleged, had indicated he thought Canadian women were “no good” and described one female witness as “cuckoo.”
When the complaining juror defended the witness, “he (Juror #5) lurched across the table and invaded my space and said . . . ‘You can kiss my white hairy a–,’” she wrote.
Superior Court Justice Robert Clark ultimately discharged the Toronto electrician, leaving 11 people to decide whether Amin Kassim, 35, is guilty of the first-degree murder of Muluka Ali, 23, his ex-common law wife. Kassim is also charged with the attempted murder of a taxi driver.
Deliberations began late Wednesday afternoon.
Sometime after midnight May 14, 2005, the hulking Ethiopian fired a .357 Smith and Wesson revolver four times into Ali’s head — not disputed at trial — then fled her downtown apartment with their two-year-old son, sparking a nationwide manhunt. The boy was found unharmed.
In a police wiretap, Kassim said he “did it for my child so that his mind will not be spoiled.” When he was arrested, the murder weapon and two photos of lying Ali dead on the floor were found nearby.
For Clark, a gruff, former Crown attorney, Juror #5 presented a conundrum in a trial riddled with challenges posed by Kassim representing himself and often behaving, in the judge’s words, “like an unruly spoiled child.” The trial began March 8.
“Mr. Kassim you are trying the very thin edge of my patience,” said Clark at one point.
After hiring and firing a number of lawyers, Kassim refused the assistance of court-appointed counsel. Clark faced the difficulty of remaining neutral while ensuring Kassim’s right to a fair trial.
Being assigned to this case came after a trying six months on the bench for Clark.
Last fall, he took the rare step of declaring a mistrial in a sensational murder conspiracy case after agreeing that, at times, he appeared to favour the prosecution. Two months ago, he was forced to declare a mistrial when confronted with a hung jury in another murder case.
Enter Kassim who, over and over again, ignored Clark’s urgings to stop flouting courtroom rules and raising irrelevant issues, such as wanting jurors to see his family photos. Nor was he swayed by Clark’s lengthy legal lectures about the “profoundly harmful” effect of dredging up “damaging evidence” when cross-examining Crown witnesses.
“I have lost the ability to fathom why you put yourself in the worst possible light,” Clark said one day.
The trial was interspersed with Kassim’s rants about his treatment in jail, which Clark patiently indulged but reminded Kassim: “I’m not the manager of a hotel.”
By all accounts Clark bent over backwards for Kassim even after losing it when Kassim blurted out some gibberish to the jury.
“JURY OUT,” Clark yelled, sending jurors scrambling for the exit.
Things had become “intolerable” and “a trial just can’t proceed this way,” said the apoplectic judge. He ordered Kassim to watch via videolink elsewhere in the courthouse, before reversing his decision the next day to the delight of the courthouse “rat pack,” typically retirees who follow interesting cases the way some TV viewers watch reality shows.
Yet amid their power struggle, Clark and Kassim seemed to develop a bond and, perhaps, even grudging respect.
One day, Kassim’s jailhouse orange T-shirt was visible, which might reveal to jurors he was in custody, a no no in court. Clark ordered a brief recess and returned minutes later with a court officer carrying a gray suit jacket.
“It might be a little tight, Mr. Kassim,” Clark said looking bemused as Kassim wedged himself into the judge’s coat.
Then into the turbulent trial entered Juror #5. Clark invited the middle-aged man “to share with me your thoughts about Canadian women.” Canadian women are aggressive, Juror # 5 replied, and appear to suffer a higher rate of breast cancer as a result.
“There’s the story about Amazon women who were a war-like women and they were missing a breast in order to throw a spear or shoot from a bow and arrow,” the electrician continued.
“Today we have the same thing: Aggressive women, missing breasts.”
The man said he made the “kiss my white hairy a–” comment after the offended juror “voiced some expletives at me.”
Clark asked him if, given the nature of the case, he felt “capable of deciding it fairly and objectively.”
Juror #5 said he was “a little torn.”
“Murder is murder so I don’t know, but I can understand the defendant’s predicament, perhaps.”
The next day, Clark discharged the juror, who muttered “Thank God” on his way out. The case continued less eventfully, particularly once Kassim announced he wasn’t calling a defence.
This week Kassim seemed resigned and drained, slumping forward in the prisoner’s box, preoccupied with not upsetting Clark. He apologized and thanked him countless times, and likened the 61-year-old to a father figure.
“I am enjoying seeing you smile,” Kassim told Clark. “I do respect and love you.”
“I’ll try to smile a little more often,” Clark said, smiling.