Hung jury. Acquittal. Guilty.

Three trials, three juries, three different results with the same accused and the same key evidence.

York Region Police officer Remo Romano, charged with dangerous driving causing death after he killed an 18-year-old woman in 2014, experienced all possible verdicts from a jury prompting his lawyer William MacKenzie to decry the justice system as a “crapshoot” after the third trial in 2018.

Romano’s case is an exception — but when a case is tried for the second time or third or even a fourth time, like in the unique case of convicted killer Robert Badgerow, it is not uncommon to get different verdicts, especially when a jury is deciding.

Two recent high-profile retrials — both several years after the first trial — show how different and challenging the process can be a second time around.

After the second trial for Christopher Husbands in the 2012 Eaton Centre shooting, in which the defence presented more evidence in support of post-traumatic stress disorder, a jury last month returned a verdict of two counts of manslaughter — lesser charges than the second-degree murder convictions from his first jury trial three years ago.

Philip Grandine was initially charged with the first-degree murder of his pregnant wife, Karissa Grandine, and was ultimately convicted of manslaughter in 2014. After successfully appealing his conviction, Grandine faced a second jury trial — for manslaughter, not murder — in which the Crown could not argue he intended to kill his wife. A jury found him guilty of manslaughter again on Thursday.

“The result in any trial is a complex combination of the evidence and the way it comes out, what evidence is available, what evidence the lawyers choose to put forward, how witnesses testify,” said Lisa Dufraimont, a criminal law professor at Osgoode Hall.

That means a trial is different every time, even if the basic allegations don’t change.

Retrials can happen for a number of reasons — a mistrial ruling, a hung jury, a successful appeal. Sometimes, as a result of an appeal, the retrial happens on different charges from the first trial.

Retrials can vary wildly from previous trials, or remain almost entirely the same. The correction of legal errors and rulings by a new judge can change the way evidence is presented. Memories may erode over time and witnesses may no longer be available, leaving lawyers to read their previous testimony into the record in what can seem like a bizarre mini play. Legal strategies and tactics can change. An accused person may reverse their decision to testify or not, or — as in the case of the Eaton Centre shooting — one side may call more expert evidence.

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Meanwhile, another trial prolongs the stress for witnesses, victims, the accused and their families — often many years, even decades, after the crime.

Det. Sgt. Terry Browne, the lead investigator on the Grandine case, said it is rare that the same detective would be able to see a second trial through to the end as he did.

“When I contacted people and said, we are doing this again, obviously they knew me personally and that made it a little easier,” he said. “As time goes by it is a little more difficult.”

When new trials are ordered on the basis of a legal error, the appeal court can only speculate on whether that error swayed the jury — jury verdicts don’t come with reasons, unlike decisions made by a judge.

Instead, the court considers whether there was a mistake serious enough to result in the denial of a fair trial, causing a miscarriage of justice.

It is impossible to know what the jury viewed differently the next time around since jurors in Canada are forbidden by law to discuss their deliberations with anyone (though they may soon be able to at least do so with therapists).

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The Court of Appeal decision in Romano’s dangerous driving case narrowed the focus of the trial to Romano’s conduct while driving during a non-emergency police operation, which his lawyer believes resulted in the third jury returning a guilty verdict.

Romano’s lawyer MacKenzie said he was particularly frustrated when he commented the justice system is a “crapshoot” and was not trying to denigrate the jury’s role, but “to get three different verdicts on arguably the same facts with a few tweaks ... if there were another trial you might end up with a different verdict.”

The justice system requires 12 jurors because that allows for a range in backgrounds, life experiences, approaches and biases — another reason that representative jury pools are important, Dufraimont said.

Changing social views on sexual violence or how mental health issues can affect people’s behaviour could influence the way a jury or a judge reasons through a case — even though the law remains the same, she said.

Attitudes toward police officers seem to have also shifted in recent years, making juries more open to disbelieving officers or convicting them, MacKenzie said. “The veneer of invincibility and police are always here to protect us and do good, I think that has been removed to some degree,” he said.

Advances in medical science could also play a role in a retrial that happens years later.

Defence lawyer Dirk Derstine, who represented Husbands in the Eaton Centre shooting trial, said the concept of disassociation due to PTSD was a new addition to the DSM-5, the medical manual used to classify mental health disorders, at the time of his first trial but there has since been more research since.

In general with retrials there can be “a sense of déjà vu that makes it hard to get your game face on,” said Chris Hicks, who recently conducted a retrial in a murder case where a mistrial was granted before the first trial ended.

A retrial is effectively a do-over — a chance for both the Crown and defence to evaluate and do things better the second time around, but it also removes any element of surprise. Witnesses may be better prepared for cross-examination because they know what questions to anticipate and what the defence lawyer is trying to achieve, he said.

There is also increased temptation for juries to Google for more details about the case, he said. Juries are typically told by the judge if there was a previous trial but they are not told the outcome or why another trial is occurring, leaving lingering questions and the temptation to search for information online, against the strict instructions of the court.

Juries may not follow the more technical aspects of the law, instead “bringing their broader sense of justice to bear,” Dufraimont said — but this can be seen as a good thing.

Juries can represent “the conscience of our country,” she said.

It can be argued that “we need a criminal justice system that has legitimacy for ordinary people,” she said. “Having juries make these important decisions in murder cases is a way of making sure our law doesn’t become a technical, elitist exercise that is too far away from the sense of justice of an ordinary person.”

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