Criminal Law

Earning credibility with jury key in acquittal: Zita

By Peter Small, Contributor

Toronto criminal lawyer Jessica Zita has successfully convinced a jury to acquit her client of a serious armed robbery charge and instead find him guilty him of one count of the lesser assault causing bodily harm, she tells AdvocateDailycom.

The man had tried to plead guilty to the assault charge at the start of the trial, says Zita, an associate with Hicks Adams LLP, but the Crown rejected the offer. She adds the outcome allows her client to avoid a mandatory minimum five-year prison term attached to the robbery charge.

The man will be sentenced May 14, and Zita says she will argue he should get time served, after spending more than a year in pre-trial custody, noting there is no minimum sentencing requirement attached.

She says the matter is a good example that defence lawyers should not be afraid to go to trial if they feel the Crown has not met its burden of proof.

“Many people get scared, get cold feet right before the big show,” Zita says. "For me, it was important to earn credibility with the jury."

She began earning the jurors' trust at the trial's outset by agreeing to accept most of the facts in the Crown's case, Zita says. She did, however, insist her client did not commit robbery.

“If you can keep your case and issues as simple as possible that can be an effective practice,” she says, adding that in many instances lawyers can ensure success by streamlining the narrative.

Court heard that in 2017 Zita's client and a male co-accused entered a cab in a Toronto parking lot and asked for a ride. The driver refused, and the co-accused began assaulting him with what looked like a handgun, she says. A struggle between the two spilled out of the taxi and into the parking lot.

As the pair wrestled for the weapon on the pavement, Zita says her client exited the backseat of the taxi "bit the cab driver’s hand, grabbed the weapon, and ran away."

"One key point of evidence is that, other than the bite, my client did not touch the victim at all," she says.

Zita says a point of contention during the trial was the disappearance of money. The injured cab driver told police at the crime scene that $70 was missing from his front pocket, which was ripped open during the assault, she says, noting that the co-accused was arrested at the scene while her client was arrested months later. The weapon was never recovered.

Police charged her client with robbery with a firearm — either as a principal or a party.

However, during cross-examination the cab driver admitted to Zita that he didn’t know where the money went and that it could have just fallen out of his pocket.

"This case boiled down to whether the Crown had proven its case beyond a reasonable doubt and proving they had not," Zita says.

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