Ontario Attorney-General Ian Scott’s reluctance to prosecute Henry Morgentaler again (or still, for the last prosecution is not yet complete) is really quite understandable. No man likes to be made to look like a jackass.
After all, Ian Scott is a politician, and as such must be (or seem to be) responsive to the whims and nuances of public opinion. It just is not fair to brand him a man with neither courage nor convictions. Or is it?
Confronted by a mutinous jury, besieged by pressure from both pro- and anti-life camps, each claiming to represent “the majority” of his constituency, pressured too by other lobbyists and politicians and (you may be sure) by the police, Scott’s position is not enviable. Of course, if he were simply to do his job, that is, to order that the laws be enforced and the miscreant prosecuted until the time that the law is altered, why, the matter would be simple and clear-cut.
But pressure and lobbies aside, there is the matter of the juries. That matter, clearly, has Ian Scott running scared. Three times over in Quebec, Henry Morgentaler beat the law at its own game, when he should have been tarred and feathered and run out of town on a rail at the very least. And in his first case in Ontario, he beat the system again. Pro-lifers won’t let the matter die quietly, and Scott just knows that if he takes it to court again he’ll lose – both the jury and much sympathy and support.
The question, of course, is how does Henry do it? Rather, how do his lawyers do it? – for Henry’s real interest is not in the law but in getting attention and in setting up a nationwide abortion-mill franchise operation.
The technique is actually very simple, so much so that it’s obvious why lawyers can’t see it. Henry (through his lawyers) has found a way to circumvent one of the assumptions on which the jury system is based.
The law assumes that a dozen of any average, normal people, given the chance and proper encouragement, will behave rationally and responsibly – and what better or more sober encouragement than to have your judgment informed and solicited by a court of law? The law itself, wholly based on a written code, is supremely rational; and it assumes, as it must, rationality in its procedure and application. There’s the weak spot. The Ontario jury – the fourth one to do so – behaved irrationally. Now, our legal system cannot function if or when polluted by irrationality.
This is the key to Morgentaler’s success: he simply sidesteps rationality and so bends the whole courtroom proceeding to play its game by his rules. He manipulates the law by using to the hilt the show-business dimensions and by manipulating the audience – part of which is the courtroom jury. A man with no slight charismatic abilities, he knows this game: he is canny, not intelligent or intellectual.
The crux of the matter is, on one hand, the jury-selection process, and, on the other, the cult-figure influence.
The defence, Henry’s lawyers, etc., has deemed it necessary to employ expert psychologists’ electing or rejecting jurors. Clearly, they are looking for something. The Crown, rational and respectable, plays no such dark game. Look then at a personality profile of both, the apparent “Ideal juror” and “Rejected juror,” as seen by the defence. As I have no data to hand, but have only memory to go by, the following is necessarily sketchy. Fill it in yourselves.
As seen by the defence (Henry), then:
Ideal juror Rejected juror
No higher education articulate, educated,
“emotional type” “rational type”
weak character, low identity strong character, strong private
(not assertive) identity, opinions
few responsibilities outside bears responsibilities
small family or none three or more children
impressionable analytical, critical, independent
no (or weak) religious conviction strong in religion; developed moral
or atheist; amoral (immature) sense; mature
That is the merest sketch, but the pattern is strong. (Remember, the defence’s tactic was not to choose but to reject potential jurors.) In fact, the psychological profile of their Ideal juror should be drawn in some detail – not that they achieved the ideal, but they did get close enough to do the job.
The profile of the “Rejected juror” is instructive. It is the profile of the responsible citizen, that of the very man or woman by and for whom the civil and legal systems were constructed, and on whom they depend, the “reasonable man.” This should be studied, for it reveals that the very broadmindedness and openhandedness of the jury system, on which the fairness of the law rests, can be perverted into a weapon against those very qualities, and against the law itself.
The profile of the defence’s “Ideal juror,” on the other hand, has rather sinister implications. It is that of the easily-deluded, easily-swayed, easily-led cult-follower. Suddenly, the defence’s need for and use of expert psychologists’ help in rejecting jurors is somewhat clearer.
In essence, the defence rejected all prospects except for those they felt to be susceptible or easily propagandized, easy cult-victims. Whether or not this was deliberate or fully-conscious as a defence tactic is immaterial. It is the result, the effect of their selection.
In the next trial – and there will be one – perhaps the Crown should turn the tables and employ expert psychological assistance and advice in selecting jurors who conform to the traditional legal/cultural “ideal” pattern of the citizen. In fact, it will become essential to do so in order to protect the law from villainy and unscrupulousness on the part of the defence, now that the technique is known.
As to the point of choosing such jurors – Morgentaler is, in every sense, a cult figure. He has, over the last several years and with increasing deliberation, made himself the focus of a cult, and he operates on those terms (the pun may apply). It is a death-cult, and its purpose is to provide its members – they really are devotees – with a sense of corporate identity and purpose…but, these details are really matter for another article.
The conduct of the trial is also instructive. The judge, in all forebearance and good will, and confident of the ability of the jury to act responsibly, gave the defence great latitude, enough even to present information irrelevant to the matter. Morgentaler’s guilt of the crimes, ass charged, was in no doubt whatever, by anyone, nor was it even denied. The judge was sure that the jury would be smart enough to disregard the irrelevancies as beside the point. He did not reckon on the selection technique.
The defence got its own Ideal jury, then simply mounted a prolonged barrage of pro-abortion propaganda – that’s exactly how they played it – against a captive audience of cult-susceptible candidates, and in the presence of the cult figure himself. The jurors were offered publicity and adulation as heroes of a “popular revolution” (and the adulation of a very large and vocal public), if they simply ignored a few little technicalities and legalisms. “Legalisms” such as the requirement that they confine themselves to charges and facts. All in open court.