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鈥檚 father and his family as the jury entered and exited the courtroom.
Her lawyer, Barry Nychuk, is also expected to argue that Mills 鈥渇ailed to provide her with effective assistance in defending the charge.鈥� 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鈥檚 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鈥檚 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鈥檚 name, gender, physical description, juror number and even manner of walking is protected by a publication ban.
During cross-examination by Mehl鈥檚 appeal lawyer Barry Nychuk, Mills agreed that he interpreted the gesture as an act of support and solidarity with the victim鈥檚 family. He testified that he discussed the matter with Mehl and co-counsel Kirk Karaszkiewicz and they decided not to take any action.
鈥淲hy didn鈥檛 you bring it to the attention of the judge?鈥� asked Nychuk.
鈥淚t was a strategic decision,鈥� Mills replied. 鈥淲e were not certain if the gesture did mean anything and we didn鈥檛 want to get into a situation where we would potentially alienate the juror by bringing the juror out and speaking to the juror. 鈥� We decided to wait and see if there was anything else.鈥�
Nychuk asked Mills why he didn鈥檛 seek a mistrial after the jury concluded Mehl was criminally responsible for the death of her daughter.
鈥淚 never saw [the gesture] again and it didn鈥檛 seem significant to me,鈥� Mills testified.
Nychuk pressed Mills again: 鈥淵ou know the juror is no longer on your side. Why not seek a mistrial?鈥�
鈥淚 didn鈥檛 know the juror was not on my side,鈥� said Mills. 鈥淚n 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鈥檚 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.鈥�
The appeal will continue for the next two weeks.
