Editorial | Start bench trial debate

That Justice Bertram Morrison was forced last week to shift the Mario Deane manslaughter case from St James to the parish of Westmoreland should trigger two things, both of which are related.

First, the police commissioner, Kevin Blake, must order a full and robust investigation of why the police didn’t deliver 300 jury summonses in St James, and the replication of this problem, to varying degrees, elsewhere in Jamaica.

At the same time, the justice minister, Delroy Chuck, should accelerate his promised public debate, including hearings by a parliamentary committee, on the discontinuance of jury trials in favour of the settlement of legal matters with judges only, as has been long proposed by Chief Justice Bryan Sykes.

A decade ago, Mario Deane was a young man of 31, when he was arrested in Montego Bay, the St James capital, for possession of a small amount of marijuana. He was placed in a lock-up at the Barnett Street Police Station.

Three days after his August 3, 2014 arrest, Mario Deane was in hospital dead, after a beating by cellmates. Six years after the incident, two of Mario Deane’s cellmates, Marvin Orr and Adrian Morgan, pleaded guilty to manslaughter.

But a case against three police officers – Constables Juliana Clevon and Marlon Grant and Corporal Elaine Stewart – for manslaughter, misconduct in a public office, and perverting the course of justice – has meandered for a decade.

Often, trial dates have been postponed for myriad reasons, including the unavailability of witnesses; the defendants’ difficulty gaining legal representation; inconclusive investigation files; intervention of the COVID-19 pandemic; and a shortage of jurors.

THE JURY QUESTION

Last week, Justice Morrison was up to his tether on the jury question. Three hundred summonses were prepared for jurors for the current session of the St James Circuit Court. None were delivered. The judge found the excuses for the failure flimsy.

He said: “Justice delayed is justice denied, and what accounts for the delay? A significant part of it is that there has been an insufficiency of jurors, which is why this case could not have been tried in the past.

“For 10 years, these three persons, who are presumed innocent until proven guilty by a jury of their peers, have been waiting and so have the family members of the deceased person.

“How can that be justice in this country at this time? We have to find a solution. Nobody is going to be served [for jury duty], and it is painfully obvious.

“I am indignant at the paltriness of these excuses because there are other matters which I have tried since I have been here, and jurors have been found, but for this matter, oddly enough, none can be found.”

While Justice Morrison’s remarks were pregnant with implications with respect to this matter, there is indeed a broader concern of Jamaicans shying away from jury duty, and more recently the potential for the deliberate contamination of juries.

In April 2023, Justice Morrison himself was forced to delay the start of the Easter session of the St Catherine Circuit Court because of insufficient jurors. The same thing had happened at the start of the Hilary session three months earlier when only a single juror was present.

This is a failing over which Chief Justice Sykes has consistently complained in arguing for bench trials to be the default in Jamaican courts.

“It seems to me the time has come now to do away with jury trial because the truth is, there is nothing to suggest that jury trial is inherently a better quality of justice than a bench trial,” Justice Sykes said in a speech in Montego Bay last December. “There is no evidence to suggest that.”

In any event, it has become increasingly difficult to attract jurors, especially from the island’s professional classes and the upper echelons of the society.

“The only persons we find – and I’m not saying anything is wrong with them – but they turn up: fishermen, domestic helpers, practical nurses, and so on,” Justice Sykes said in that Montego Bay speech. “And so, the burden of jury service falls disproportionately on these persons.”

SERIOUS DEBATE

A further spanner was tossed into the operation of the jury system, with respect to its vulnerabilities, when the UK-based Privy Council, Jamaica’s final court, ruled that a local judge was wrong to continue the murder case of dancehall deejay Vybz Kartel and others, even after it was found that a juror had attempted to bribe his colleagues to return a not-guilty verdict.

If the juror had been removed, the remaining 10 (one juror had earlier been allowed to withdraw) would have brought the panel below the number then required for murder trials. The prosecution was willing to take its chances with the presence of the tainted juror.

The Privy Council, however, held that the remaining jurors, who had resisted the bribes, could overcompensate, to the detriment of the accused person.

Jamaica’s Constitution doesn’t make jury trials mandatory. Instead, it insists on fair trials within a reasonable time by a competent court.

The Jury Act makes for jury trials obligatory in cases for treason or where the death penalty can be imposed.

Indeed, there are some courts, such as the Gun Court, where only a judge sits. But generally, both the defendant and the prosecution must agree to forgo juries.

This newspaper believes that it is high time for a serious debate on the idea of bench trials as the starting point, and immediately, for judges to have the power to continue cases on their own when they discover jury tampering.