Can Magnotta get a fair trial?

Some legal experts say there are serious challenges to overcome for first-degree murder suspect Luka Rocco Magnotta to receive a fair trial.

WARNING: Graphic material

With the intense media spotlight shining on the case of Luka Rocco Magnotta, some legal experts say it could be a serious challenge to ensure that the first-degree murder suspect receives a fair trial.

"Is it challenging? Yes. Is it going to be difficult? Yes. Is it going to be very, very difficult? Yes. Is it going to be impossible? I wouldn’t be prepared to say that at this stage based on what I know," Norman Boxall, president of the Criminal Lawyers Association, told CBC News.

"It's going to create immense challenges to try and get 12 persons sitting on a jury who could hear the case fairly and try it on the evidence."

Magnotta, who was arrested in Berlin Monday, is suspected of killing Jun Lin — a 33-year-old Chinese university student with whom he had a relationship.

He is also accused of recording a video of the attack and mailing the victim's dismembered body parts to federal political parties in Ottawa. Montreal investigators also say the video shows evidence of cannibalism.

'Horrific facts' present challenges for jurors

Boxall said the horrific nature of the case makes it more difficult for prospective jurors.

"The fact situation alone creates a challenge. When you’re dealing with horrific facts, that creates special challenges in order for persons to keep an open mind. It's a normal human reaction."

Criminal lawyer Dirk Derstine, who recently represented Michael Rafferty in his first-degree murder trial, agreed that Magnotta faces more hurdles because of the notoriety of the case.

"A fair trial is one where people come with no preconceived notions and decide the case fairly on its merits. I think that many people have already come to decisions about this case."

Derstine said the Rafferty case also faced a "mountain of publicity" and that it is "impossible to know" whether that had any effect on his client getting a fair trial.

Dirk Derstine, who recently represented Michael Rafferty in his first-degree murder trial, agrees that Magnotta faces more hurdles because of the notoriety of the case. (Geoff Robins/Canadian Press)

"It makes it a lot harder to have a fair trial when these things are in play. I don't know really what the jurors say or think. They certainly paid a lot of attention during the course of the thing. They were out for two days. I dare to hope they gave him a fair trial."

But Derstine said that in Magnotta's case, the presence of a video, which ended up on a gore website and has been seen by thousands of people, poses difficulties for Magnotta in the court of public opinion.  (The person on the video is concealed, and while the individual is shown stabbing and dismembering the victim, there isn't agreement on whether the video shows the actual killing.)

"Everybody thinks they’ve seen him committing the acts on video. So that certainly takes away any doubt in your average layperson's mind about what exactly went on here," Derstine said.

Presumption of guilt common

However, criminal lawyer Edward Greenspan said he doesn’t believe Magnotta’s case presents any more challenges than other high-profile cases when it comes to the public's assumption of guilt. 

"Everybody starts with that prejudice. Is [this case] worse than Paul Bernardo? Is it worse than Clifford Olson? Is it worse than Robert Pickton? There's a countless number of people that have had to deal with the negative publicity of a case.

"There's nothing special about this case in terms of the presumption of innocence. It's a reality that anybody who practises criminal law has to face, and that is that people generally believe if somebody’s charged, they’re guilty. And that is one of the myths of criminal law that interferes with a fair trial."

Greenspan said he can’t recall a case in Canada where they couldn’t get a jury because they couldn’t find 12 people prepared to give the accused a fair trial.

"Most people, when they get into a courtroom, recognize the solemnity of the proceedings, recognize the significance of the presumption of innocence and recognize the importance of the state proving its case beyond a reasonable doubt."

The legal system deals with problems of possible bias through the process of the jury selection, Greenspan said. Potential jurors are asked a series of questions that, depending on their answers, may or may not qualify them to sit on the jury.

But that inquiry into the background of prospective jurors is limited, according to Boxall.

He said lawyers may ask questions about the  person's exposure to press coverage of the case or whether they would be able to judge it fairly. But unlike the U.S. process, he said, none of the questions are so intensive that may uncover hidden prejudices.

They are "allowed to ask conclusory type questions. It’s not a real in-depth inquiry into the thought process or background of the person," he said.

Possible defence options

As for Magnotta's possible defence options, there's a number of avenues open, including pleading not guilty or offering a psychiatric defence that could range from insanity or diminished capacity.

"His position may simply be, 'I didn’t do it,'" Greenspan said.

Derstine said that while he doesn’t know what forensic evidence police have, a lot may depend on the video.

"If they manage to establish that he's on the video, it's going to be pretty hard to say that he's anything other than guilty of some crimes. So one of the strategies, of course, is to try and establish it wasn’t him on the video."


Mark Gollom

Senior Reporter

Mark Gollom is a Toronto-based reporter with CBC News. He covers Canadian and U.S. politics and current affairs.