On Watch

Courting Technology

Posted: Feb 28, 2013 2:14 PM ET Last Updated: Feb 28, 2013 2:14 PM ET

It's amazing how, in a very short space of time, technology has changed the way we do things.

The fact you're reading this on a screen instead of a piece of paper is just one small example. Recently, though, I've been struck by how much technology is prompting changes in our justice system.

Again, it starts with the little things. More and more lawyers are consulting tablets instead of day-timers to find their next available court date. At the start of each court proceeding, sheriff's deputies caution spectators to mute or turn off their phones. That warning was lost on a key witness in the recent sentencing of spy Jeffrey Delisle: his cell phone went off while he was on the stand testifying.

The phones also pose a challenge for the whole justice process. If you have 1,000 followers on Twitter and you tweet from court, you'd better make sure you don't send details that are covered by a publication ban, because tweeting is considered broadcasting. Actually, in Nova Scotia, the current policy is that you can't tweet from inside a courtroom unless you get prior permission from the judge.

Social media have become so pervasive, judges now include warnings about using Twitter, Facebook or any similar platforms to break a publication ban. It was interesting that during jury selection for a murder trial last fall, prospective jurors were told on the morning of the first day who the accused was. By the time they were called for screening, many had taken the time to look the guy up on their smart phones. So when they were asked whether they knew anything about the case, a lot of them answered yes, even if their information was only an hour old.

Social media has already played a huge role in another murder case that has yet to go to trial. I'm talking about the killing of Amber Kirwan. She disappeared from outside a New Glasgow bar on October 9, 2011. Her friends and family mounted a massive social media campaign to help look for her. It was impossible to be on Facebook and not see the appeal.

Amber Kirwan's body was discovered in a wooded area in Heathbell on November 5, almost a month after her disappearance. Then it shifted from a missing person's case to a homicide investigation.

It would be seven more months before Chris Falconer was charged with first-degree murder in Kirwan's death; seven long months in which rumour, speculation and guess work filled the void left by official secrecy surrounding the police investigation. And whereas this sort of guess work used to be confined to street corners and coffee shops, in the Kirwan case, it went viral. There's hardly anyone who follows the news in Nova Scotia who hasn't folowed the Kirwan case, and who doesn't have an opinion.

That will pose a particular challenge for the justice system. Earlier this week, Chris Falconer was committed to stand trial on the murder charge, and a charge of kidnapping. His trial, before a Supreme Court Judge and Jury, is expected to begin around this time next year.

So how do you pick a jury for a case like this?

Crown Prosecutor Patrick Young suggested one possible solution will be to call more prospective jurors, a couple of hundred more. A larger jury pool will probably be necessary to weed out those who've already made up their minds and who can't be persuaded to put aside what they think they know and just focus on the evidence.

Defence lawyer Mike Taylor is already weighing his options. One possibility: ask to move the trial out of Pictou County, and away from all the intense publicity in Amber Kirwan's back yard. That happened back in 1993 in the case we now know as the McDonald's murders. The intense, pre-trial publicity surrounding the killing of staff at a Sydney McDonald's resulted in the decision to move the trial of one of the three killers from Cape Breton to Halifax.

There are similarities here: the populations of both Sydney and Pictou are relatively small and close-knit. Everyone knows everyone. And everyone in Pictou has an opinion on this case.

But in the Kirwan case, that pesky social media gets in the way again. Of course, Facebook and Twitter didn't exist in 1993. And the people who followed this case on Facebook aren't confined to Pictou County. And the old-line media are also a problem for a change of venue argument. There may have been a time -- though I doubt it -- when a story like Amber Kirwan's disappearance might have been confined to Pictou County media. But now, stories like that are broadcast and published from Sydney to Yarmouth.

One other option Mike Taylor says he's considering is challenge for cause. That's where the judge poses the same specific question to each prospective juror, to challenge them to make sure they can, in fact, be impartial and decide the case only on the evidence. That process was used in the Chaze Lamar Thompson murder trial. It makes the jury selection process a lot longer and more complicated. But in the end, it produces a jury -- even if they're all drawn from Pictou County -- who've been chosen because they will decide Chris Falconer's fate based only on what they hear at the trial.

And then the rest of Nova Scotia will Tweet it, text it and post it on Facebook.

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About the Author

Blair Rhodes has been a journalist for more than 30 years in Atlantic Canada, covering everything from princes to politicians to prostitutes, and a whole lot of stuff in between. These days, he focusses on stories involving crime and public safety.

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