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TICKLE IN JURY FOREMAN'S THROAT SETS DEFENDANT FREE IN CANADA'S 'STRANGEST CASE'

Ontario courts may want to provide jurors with more water, after a defendant was set free when a court mistakenly heard a jury foreman pronounce the accused "not guilty."

For two days, Howard Burke, 35, strolled Toronto as a free man, while legal authorities scrambled to correct a mistakenly heard verdict.

What has been dubbed the strangest legal case in Canadian history began on Sept. 19, when the foreman in the case against Burke, rose to render the verdict.

"I cleared my throat with my hand in front," the foreman, whose name cannot be revealed under Canadian law, said at an impromptu, five-day inquiry into the judicial fiasco. "As I rose to speak, I involuntarily cleared my throat again."

The result of the foreman's throat-clearing was that the judge, prosecutors and other court personnel heard the verdict as not guilty. The error was compounded when the prosecutor asked whether the other jurors agreed with the verdict, rather than if they had rendered a not guilty verdict. When the jurors said, "yes," Burke was freed.

Before the trial, Burke had been in custody since last October, when police charged him with attempted murder, for shooting Ian Francis, 31, over a debt.

After 15 hours of deliberation, the jury returned their verdict, verbally, rather than in writing as is the case in the U.S. system.

By the time the mistaken verdict was realized, within minutes of the court's adjournment, Burke had already left the courthouse. After a weekend of freedom, however, he turned himself in to police.

"There will be no other charges against him," Staff Sgt. Dave Ground of York Regional Police said. "If he had escaped and been a fugitive, he'd have been charged, but it wasn't his fault."

On Thursday, Burke was back in Ontario Court before Justice Ted Minden. This time, the verdict was recorded as guilty in the 1996 attempted murder of Francis.

During the inquiry, several jurors said they were shocked to see Burke leave the courthouse after they had convicted him. But none, apparently, felt comfortable enough to say anything.

One woman juror told the inquiry she didn't hear what the foreman said on the day of the verdict, but was too nervous to interrupt the proceedings.

On Wednesday, Ontario Attorney General Charles Harnick said Ottawa might consider changing the wording of the verdict from "not guilty" to "innocent" to avoid such mistakes in the future.

Burke is to appear in court Monday for sentencing.

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