A Victoria criminal defence lawyer has testified that he saw a juror make one gesture, once, during the murder trial of his client Kaela Janine Mehl in the fall of 2017.
On Monday, Jeremy Mills told the B.C. Court of Appeal that he saw a juror pound their chest twice with a closed fist when the jury was returning to the courtroom after a break.
Mehl was convicted of the first-degree murder of her 18-month-old daughter in October 2017 and sentenced to life in prison with no possibility of parole for 25 years.
She is appealing her conviction on the grounds that one of the jurors was biased and gestured repeatedly toward the baby’s father and his family as the jury entered and exited the courtroom.
Her lawyer, Barry Nychuk, is also expected to argue that Mills “failed to provide her with effective assistance in defending the charge.” On both grounds, Nychuk will argue that these events have given rise to a miscarriage of justice.
Mehl admitted she killed the girl by feeding her a mixture of yogurt laced with a fatal dose of Zopiclone, then smothering her in the early morning of Sept. 16, 2015.
In determining whether to find her guilty of first-degree murder, second-degree murder or manslaughter, the jury had to decide whether Mehl intended to kill her daughter and whether the murder was planned and deliberate.
Mills testified that during the trial, Mehl’s mother, Leanna Comis, came over to the counsel table and told her daughter she had seen one of the jurors make a gesture towards the victim’s family.
Later, likely that same day, Mills testified, both he and Mehl saw the juror make a gesture toward the public gallery by tapping on their chest twice with a closed fist. After this happened, Mills continued to observe the juror and asked one of the sheriffs if she had seen anything.
The juror’s name, gender, physical description, juror number and even manner of walking is protected by a publication ban.
During cross-examination by Mehl’s appeal lawyer Barry Nychuk, Mills agreed that he interpreted the gesture as an act of support and solidarity with the victim’s family. He testified that he discussed the matter with Mehl and co-counsel Kirk Karaszkiewicz and they decided not to take any action.
“Why didn’t you bring it to the attention of the judge?” asked Nychuk.
“It was a strategic decision,” Mills replied. “We were not certain if the gesture did mean anything and we didn’t want to get into a situation where we would potentially alienate the juror by bringing the juror out and speaking to the juror. … We decided to wait and see if there was anything else.”
Nychuk asked Mills why he didn’t seek a mistrial after the jury concluded Mehl was criminally responsible for the death of her daughter.
“I never saw [the gesture] again and it didn’t seem significant to me,” Mills testified.
Nychuk pressed Mills again: “You know the juror is no longer on your side. Why not seek a mistrial?”
“I didn’t know the juror was not on my side,” said Mills. “In fact, that juror paid attention, made notes, appeared to be listening. I was not convinced at any stretch there was a problem. I know that my client’s mother had an issue with that juror. I knew my client was concerned about it, so I took steps to see if there was something to it.”
The appeal will continue for the next two weeks.
