Kartel’s last stand

United Kingdom Privy Council judges, examining the appeal of dancehall artiste Vybz Kartel’s 2014 murder conviction, have asked attorneys to come back today with additional submissions on their arguments around the ‘tainted jury’. The matter was of deep interest to the law lords during day one of the two-day hearing taking place in London.

Yesterday’s hearing got under way at 5:30 a.m. local time (10:30 a.m. UK) as the judges heard arguments in the final appeal available to Kartel, whose given name is Adidja Palmer, and his three co-convicts in the 2011 murder of Clive ‘Lizard’ Williams.

Convicted alongside Kartel in March 2014 were fellow artiste Shawn ‘Shawn Storm’ Campbell, Kahira Jones, and Andre St John.

The appellants are represented by a nine-member team comprising Jamaican attorneys Bert Samuels, Bianca Samuels, John Clarke, Linda Hudson, Isat Buchanan, and four other lawyers.

One of those other attorneys, King’s Counsel (KC) Hugh Southey, told the court that juror direction can be an important way of keeping a trial on track.

He said that the fundamental problems surrounding direction in the case included an alleged bribe as well as jurors sticking to their oath and avoiding bias.

One of the grounds for appeal cites how should trial judge Lennox Campbell have handled the allegations that there were attempts to bribe members of the jury during the trial and whether the jury or the particular juror, Livingston Caine, who is alleged to have offered the bribes, should have been discharged.

Caine was convicted for attempting to pervert the course of justice and spent approximately nine months in prison. He is now a free man.

Southey said, “Obviously, judges need to avoid discharging unnecessarily because it’s a waste of resources, etc. At the same time, judges should not be reluctant if the circumstances arise to discharge the jury because it is by doing that the regard of the jury is, in one sense, preserved.”

Southey added that “discharging the jury in the right circumstances prevents people having to then exercise appeal rights essentially potentially being held in custody until the appeal is heard. It ensures effectively that someone’s fair trail rights are vindicated as soon as possible”.

Buchanan, in his submission, argued that breaches were evident on more than one occasion and that the conviction should be quashed and ought to be quashed.

“In relation to the jury point ... certainly, I have read for this case. There has never been in modern common law where a jury who we know for a fact is poisoned, is tainted, was allowed to remain on a jury to bring a verdict simply because the legislation would have prevented him from being discharged where it is clear on its face that that juror ought to have been removed to protect the fair trial,” Buchanan said.

KC Peter Knox, who appeared on behalf of the prosecution, argued that “one bad apple” should not lead to a dismissal of the entire jury.

Caine’s dismissal would have meant that the 64-day trial could not continue as there would have been only 10 jurors remaining following the earlier discharge of a female juror.

That female juror had expressed fear that she would probably have to bury her son because one of the defendants found out her son was also a prisoner where the defendants were being housed.

Knox submitted that there was nothing to cause the trial judge to go further than he did.

“Defendants can’t derail trials just by making bribes to juries,” Knox argued, adding that it would bring the jury system into disrepute if an entire panel were to be dismissed because of one bad juror.

He also said that the trial judge was placed in a challenging situation, which he handled “most sensibly” as the information about the attempts to tamper with the jury came “right at the end of the trial”.

Knox said it would be very difficult to get a retrial, and the prosecution had stated that it was prepared to take the risk of going forward.

However, the Privy Council judges questioned whether the fact that the case would have to be restarted was enough reason for the trial judge not to dismiss Caine.

They noted that a judge cannot sidestep the requirement to dismiss a juror in instances where they are found to be unfit, such as if they suffer from a mental illness.

The judges also had questions about Justice Campbell’s directions to the jurors following discovery of the bribe attempt.

They questioned whether he had instructed them not to hold the issue against the defendants in the case.

Knox noted that the judge had persistently issued “very strong warnings” to the jurors throughout the trial and had spoken to the jury foreman and asked her to tell her fellow jurors to remember their oath.

However, the law lords questioned whether the trial judge had “delegated his duties” to the foreman.

Meanwhile, earlier in the day, the attorney for the appellants contended that telecommunications evidence (JS2) should be excluded as it was obtained in breach of the Telecommunications Act and Charter of Rights.

Southey argued that if the matter of the admissibility of evidence obtained in breach of the law was not addressed decisively by the court, there would be nothing to stop the police from continuing to obtain evidence in breach of Jamaica’s Constitution.

The prosecution’s case was that the appellants murdered Williams on August 16, 2011, after he failed to return two unlicensed firearms Kartel had given him for safekeeping.

Williams was not seen or heard from after that date, and his body has never been found.

The police took the appellants into custody on September 30, 2011, and seized their cellular telephones.

The prosecution relied heavily on evidence derived from these phones, which was taken from a copy of a CD rom provided by Digicel in response to a police request.

At the trial, the appellants challenged the admissibility of this telecommunications evidence.

They argued that the police request to Digicel and Digicel’s provision of data to the police were carried out in breach of the Interception of Communications Act.

Further, the evidence had been obtained in breach of the fundamental right to the protection of privacy of communication guaranteed by the Charter of Fundamental Rights and Freedoms contained in the Jamaican Constitution.

However, the trial judge ruled that the telecommunications evidence was admissible.

The judge finished his summing up at 3:42 p.m. on March 13, 2014.

The jury returned at 5:35 p.m. when the forewoman told the court that the jury had not reached a unanimous verdict.

The judge sent the jury out again.

At 6:08 p.m., the jury returned, and by a majority of 10 to 1, convicted the appellants of the murder of Williams.

The Court of Appeal dismissed the appellants’ appeal against conviction in April 2020.

The appellants filed an appeal in the Privy Council, Jamaica’s final appellate court.

The appeal judges are Lord Reed, Lord Lloyd-Jones, Lord Briggs, Lord Burrows, and Lady Simler.

The appeal hearing continues today.

andre.williams@gleanerjm.com