Friday, August 23, 2013

Why Forcillo's Five-Second Pause Matters

From the outset it's been apparent to me that Sammy Yatim's death resulted from two, distinct shooting events.

The first was the initial, 3-round salvo that took two seconds.

After that there was a pause of nearly 5-seconds.

Only after that pause did Forcillo resume firing the remaining six rounds in his sidearm.  He fired 4-rounds, paused, the eighth round, paused, and then the final, ninth round.

That the pause is of critical significance is explained by Toronto defence counsel, Reid Rusonik, in the Toronto Star:

...there may also be grounds in the second volley of shots fired by the officer to have charged first degree murder. Regardless of his reason for firing the first volley, there was opportunity according to the law for the requisite planning and deliberation to kill to have taken place in the pause before the second volley. Shooting at someone a number of times — then pausing and shooting at them a number of other times — can be seen as some evidence of deciding and preparing to kill.

Unless the evidence is clear the young man on that streetcar was not rendered harmless by the first volley, it should be for a jury to decide if the second volley wasn’t specifically intended to kill him

Legal history is replete with examples of people wounding someone without an intention to kill but then deciding to go further. A jury may well acquit of first degree murder, but that would make a second degree murder compromise finding of guilt more likely.


Anonymous said...

I was thinking that after the first three shots, he realized he had screwed up badly, and so wanted to avoid having to face the kid in court, so he thought about it, formed the intent, and committed murder (the first three shots may not have been fatal).

The Mound of Sound said...

No one can ever know whether those first three shots were mortal wounds. What is apparent from the CCTV video is that Yatim was still capable of writhing from the later rounds Forcillo fired into his body.

Start to finish, the gunfire took just 13 seconds. It's hardly uncommon for a shooting victim to remain alive for far longer than that after taking a mortal wound.

The Crown, of course, must prove every element of the offence so it's unclear, if they went 1st degree based on the second round of gunfire, if they would have to prove it was one of those final six rounds, not the first three, that inflicted the mortal wound.

As I understand it, Yatim went to the floor of the streetcar with the first round and never got up again. If that's accurate then only the first round would have entered his upright body and the rest would have been received in a prone position.

A coroner will be able to identify the first, upright wounds but would probably be unable to decipher the order of the prone wounds. That's a big problem for the Crown.

Anonymous said...

If the shooting consisted of two events, one standing event consisting of three shots, verifiable by coroner, and a second, prone event consisting of the remaining 6, wouldn't simply proving that ONE of the remaining 6 was the mortal wound, rather than which of the 6 were, be sufficient?

Second question: do the 6 shots from the second burst even matter if one of the standing shots was mortal? (what if they 'hastened' the victim's demise?)

Mark said...

If I understand the argument correctly, it's not about which bullet killed the victim, it's about the intent of the shooter.

If the first three shots were enough to bring him down, any further shots are clearly not a case of self defense. Even if he's already dead, the only reason to shot a someone on the ground is to make sure that he's dead.

That's murder.

LeDaro said...

These are interesting details. But do they really matter. What is troubling is that policeman will walk away without any imprisonment. That is the way system operates if the murderer is a policeman or a very rich person.

The Mound of Sound said...

@Anon 8:58. From what I have read, Yatim went down with the first shot. That would not be terribly surprising.

It could matter a great deal whether the mortal wound(s) were in the first salvo or the subsequent one. In the first instance, Forcillo was dealing with a young man standing toward the front of the bus with a knife held up in his hand. There was a potential threat, even if minimal. Of course what's relevant to a question of criminal intent is "perceived threat." Was it credible that Forcillo might have honestly perceived Yatim as a threat warranting the use of force?

The second volley, after the 5-second pause, is, as this criminal counsel observes, a separate incident in which Forcillo's intent must be re-assessed.

A person can sustain several wounds, each of which could be mortal - major blood vessels, major organ damage, etc. - and it's hard to determine which was the effective cause of death.

@ Mark - a person can't be murdered twice. If Yatim was "already dead" the intent of Forcillo in firing further rounds doesn't go to murder and it can't be retroactively imported to the initial volley.

L.D. - we'll have to wait to see if your cynicism is justified. As I've said all along I expect this will result in a plea bargain and no trial. We'll see.