Defence to appeal decision to proceed with Keith Clarke murder trial

King’s Counsel (KC) Valerie Neita Robertson has indicated that the defence lawyers representing the three soldiers implicated in the 2010 shooting death of Keith Clarke will be appealing yesterday’s ruling by the Court of Appeal for the matter to proceed to trial on April 15.

Asked to comment on the way forward, following Justice Dale Palmer’s ruling, Neita Robertson said, “I can tell you that the defence intends to appeal the decision.”

However, the senior attorney was tight-lipped about the grounds on which the defence would bring the appeal while stressing that the team was prepared.

Palmer’s ruling followed a voir dire – a trial within a trial – ordered by the Court of Appeal to determine whether the matter should proceed to a trial. Both the voir dire and the ruling were conducted in private.

The three defendants – Corporals Greg Tingling and Odel Buckley as well as Private Arnold Henry – were charged with murder in 2012 in the aftermath of Clarke’s death.

The businessman was shot 21 times inside his Kirkland Close, St Andrew, home in May 2010, during a police-military operation to apprehend then fugitive drug lord Christopher ‘Dudus’ Coke.

The defendants, however, in their defence, have maintained that they were protected from prosecution for their actions during the operation by immunity certificates or “good faith certificates”.

Consequently, the Court of Appeal, in its ruling in 2023, ordered the voir dire by a judge alone to determine whether prosecutors could rebut the certificates of good faith issued by the then national security minister, Peter Bunting.

While noting that the judge had restricted comments on the details of the voir dire, given the sensitivity of the case, Director of Public Prosecutions Paula Llewellyn said the judge also ruled that the good faith certificates would not hinder the Crown from going to trial.

Reacting to plans by the defence to appeal the decision, Llewellyn said, “ … Mouth mek fi talk anything, but we will see.”

At the same time, she said the Crown was ready to proceed to trial.

Family happy with ruling

Meanwhile, attorney-at-law Leonard Green, who is representing Clarke’s family, said they were extremely happy with the decision.

“It has been going on for a long time. It’s almost 14 years since the death of Mr Clarke. … It has been extremely stressful for the family members, and even with the outcome, they are quite broken by the entire circumstances that they find themselves in,” he said.

As it pertains to the appeal, which will, no doubt, delay the trial, if it materialises, Green said he advised the family that they must remain calm.

“It is a process, and we expect that at the end, a just result will be coming,” Green said.

The murder trial was set to begin in 2018 when Jamaica Defence Force lawyers surprised prosecutors with immunity certificates.

The certificates were signed in February 2016 by Bunting, almost six years after Clarke’s death and four years after the ruling by Llewellyn that murder charges be laid against the soldiers.

Following a legal challenge, the Constitutional Review Court, in a majority decision handed down in February 2020, ruled that the certificates were manifestly unfair and unreasonable.

However, the Court of Appeal overruled the decision of the Constitutional Court, and upheld the validity of the good faith certificates issued by Bunting.

Attorneys-at-law Neita Robertson and John-Mark Reid are representing Tinglin, and attorney-at-law Linton Gordon is representing Henry.

Attorney-at-law Peter Champagnie, K.C. is representing Buckley.

Also appearing with Green is Nyron Wright.

tanesha.mundle@gleanerjm.com