Lawyer Morris Manning has seen to it that the jury in the people’s court case against Morgentaler, Smoling and Scott is not “The voice of the people,” spoken of by John Diefenbaker in the early 1970s, when he protested the Quebec Court of Appeal’s decision to over-rule the jury’s acquittal of Henry Morgentaler.  Diefenbaker believed that a jury should represent a cross-section of society in order to give the accused a fair trial.

In 1973, Morgentaler’s Montreal lawyer, Claude Sheppard, excluded from the jury such groups as church-going Catholics, parents of large families and those who had strong convictions.  This process of excluding large segments of the population has been further refined by Morris Manning in Toronto.

Although insistent that his finances are meager, Morgentaler

Hired two American “jury consultants” and flew them up from Washington, D.C.  The experts, Marjorie Fargo and Catherine Marks, charge anywhere from $200 to $500 per day, plus expenses.  They are trained in the use of modern psychological techniques to select juries that can be swayed by argument based on emotional rather than hard evidence.  With regard to this type of jury selection, Amital Etizioni, a sociologist at George Washington University, said recently, “The purpose of the technique is openly to get jurors who disregard information – people who will be on your side.”  He went on to ask, “What’s the difference from bribing a judge?”  (Toronto Star: October 21, 1984.)

Jury psychologists base their selection on public opinion, computer analysis, statistics, body language and other psychological considerations.  They aim to develop an instant statistical profile of those most likely to cast a “guilty” or “not guilty” vote based on the “community attitude” in question.  Marjorie Fargo and Catherine Marks watched and listened intently during the jury selection process in Toronto and it was clear that Mr. Manning placed great reliance on their opinion since he did not once accept a juror without their agreement.

Morgentaler has stated that no “unbiased, properly constituted” jury would ever convict him.  It is obvious that he has done everything in his power to ensure that he has a jury that is heavily biased in his favor.  Rules that were meant to secure an unbiased jury, now – thanks to modern sciences – can be used to achieve the opposite effect.  (Recently, jury psychologists were successfully employed by the defense in John De Lorean’s California drug conspiracy trial.)

Another unusual aspect to the jury selection procedure in this trial is the use of “triers.”  In this process, the first two jurors selected listen to questions put to the next prospective juror.  Should the triers accept the potential juror it is then u to counsel for both sides to make the final acceptance or rejection.  The first juror then retires as trier and his place is taken by the newly appointed juror.  This procedure continues (that is, each juror appointed becomes a trier for the next) until the complete jury is chosen.

This procedure was most helpful to the defense as the triers weeded out potential jurors whose views were not acceptable and saved Manning from exhausting his allotment of challenges.  In all, Manning had a total of 36 challenges of potential jurors (12 per defendant) and Cooper a total of 12.  Jury selection was completed before Manning ran out of challenges, although 132 potential jurors were questioned.

The three questions put to all potential jurors were:

  • Do you have any religious, moral or other beliefs relating to abortion such that you would convict or acquit regardless of the law or the evidence?
  • Have you, because of religious or moral beliefs or because of what you have read of seen in the media, formed any opinion as to the guilt or innocence of the accused?
  • Despite any beliefs or opinions, would you be willing to set aside those beliefs or opinions and reach a verdict of guilty or not guilty solely on the evidence and the law you receive in this courtroom?

Manning consistently disregarded the agreement to ask only these questions and asked further, personal questions.  It would be inferred that this was done so as to help the professional jury selectors fill out their psychological assessment of each potential juror.

The jury were also helped in their assessment of jurors by Manning’s successful request for access to police records of the jurors.  Normally, such information is only available to the Crown.  Any prospective jurors with criminal records or with family or acquaintances in the police force were dismissed at the beginning of jury selection.

The 12 jurors finally chosen are six men and six women.  Six are married: some with up to two children; the triers rejected many potential jurors with more than two children.  Six single jurors have no children. All appear to be under 40 years of age.  Except for two, all have relatively moderate to low-paying jobs, although one – admitting he attended school 25 years ago with Morris Manning – is unemployed.  Only one juror is a self-employed businessman.

Those excluded from jury duty, therefore, are the non-union classes; those over 40 years of age; those with families with more than two children; those who own property (with one exception); and those who over the last 20 years have thought abortion an issue and have made an effort to learn about it.

The Magna Carta, The Charter of English Liberties, states that a man must be tried by a jury of his peers.  However, there is no doctor on this jury nor is there anyone with even an approximation of the lengthy education required by the medical profession.

The jurors, predominantly blue-collar workers, have the following occupations: mail room clerk, Bell Canada worker, manager, unemployed office manager, graphic arts student, courier, the owner of a small manufacturing company, letter carrier and computer operator.

Part II: Opening shots

In his opening address to the jury, Mr. Cooper explained the charge exactly, namely that “conspiracy to procure the miscarriage of a female person” is an agreement to perform an abortion.  He stated that, “Dr. Morgentaler, although he apparently did no abortions himself, provided the place where they were to be done and called it the Morgentaler Clinic.”  Mr. Cooper presented documents in court showing contracts signed by the three accused agreeing to run the clinic in co-operation.  Morgentaler himself was to receive $2,165 per month and allow his name to be used by the clinic.

Cooper pointed out that Morgentaler announced to the news media in late 1982 that he was going to open an abortion clinic in Toronto in the near future.  The clinic was officially opened on June 15th, 1983.  Doctors Smoling and Scott performed abortions between June 23 and July 5, 1983.  On July 5, an undercover policewoman and policeman gained entrance to the clinic for the alleged purpose of obtaining an abortion.  The price was to be $300.  Uniformed police officers followed the plain-clothes officers into the clinic, evidence was gathered and the three doctors were subsequently charged.

At that time, Dr. Scott had just completed an abortion on one woman.  Cooper told the jury what happened next:

The aborted fetus, and I use the word fetus to avoid any emotional terms that may be involved (it is a word I hope to follow through the trial), wasn’t located in the room by the police.  That is the contents – once the suction removed the contents of the operation from the woman, it wasn’t located in the room where the abortion had been done – was a garburator through which the fetus had apparently been disposed. (sic)

Finally, Mr. Cooper cautioned the jury that,

The issue in this case is not whether you don’t approve of abortions or whether you do, or if you do, under what circumstances should they be allowed.  The real issue is whether the accused broke the law relating to abortions and whether the Crown can prove their guilt beyond a reasonable doubt … and I want you to remember all these things.

At this writing, Manning has paraded a steady stream of pro-abortionists through the court to bolster his case, which hinges on “The defense of necessity.”  They are, for the most part, the same witnesses he called during his pretrial constitutional challenge last year.  The opinion of these witnesses is, of course, irrelevant since it is not abortion, which is on trial, but three men who have knowingly disobeyed the law.  What is chilling is the possible impact this pro-abortion testimony may have on this handpicked jury.  However, Crown Council Cooper has reminded the jury of the real issue: whether or not a conspiracy (agreement) existed among the accused to perform an illegal abortion.

As you read this, a verdict will have been handed down.  Still, it might be noted that on October 30, Joe Borowski, Canada’s foremost pro-life advocate, attended part of that morning’s court session and during a brief recess, Henry Morgentaler told him in the courtroom that if he wins this case he will open a string of abortion clinics across the country.