No fix for damage bribery case did to Kartel murder trial, says defence attorney

Just like Humpty Dumpty, defence lawyer John Clarke yesterday charged that there are no common-law safeguards available that can fix the post-trial damage caused by the bribery issue, which unfolded in the murder trial of Vybz Kartel and his three co-accused.

Closing out the arguments for the defence against a retrial, Clarke hammered home that it is now too late to fix that problem, noting that the trial judge could have instituted certain measures such as a gag order or prohibited publication on the issue to minimise the publicity.

He said if those common-law options had been deployed, “these appellants could never complain that that publicly in relation to the bribery and how many Jamaicans view them, which is demonstrated in the material provided to this court the bribery could affect another hearing".

Clarke, however, conceded that despite the complaint about the bribery issue, the defence would accept as a solution any remedy that the court could find to cure the prejudices against the accused.

Citing a similar case, he said three options were presented - poll the jury, delay the retrial, and move the case to a remote area to fix the publicity issue.

“In light of that, we will submit that if the Crown can show that any of these options can be deployed to save the retrial in this case, and then we would have lost on that point,” he added.

But Clarke quickly pointed out that the trial could not be delayed; neither could the trial be moved to a remote area.

Although polling is possible on the island, Clarke said the test would be whether it would be practically possible to draw a jury that would eliminate prejudices from their minds. At the same time, he said, the court could examine all the material to determine how widely disseminated it was and the nature of how prejudicial it was, in order to unearth the potential for unconscious bias

Considering all those points, Clarke surmised that it would be impossible to “put Humpty Dumpty back together again" during the hearing in the Court of Appeal to determine whether Kartel, born Adidja Palmer, Shawn 'Shawn Storm' Campbell, Kahira Jones, and Andre St John are to be retried for the September 2011 murder of Clive ‘Lizard’ Williams.

The Court of Appeal upheld their 2014 convictions in 2020. However, in March, the United Kingdom-based Privy Council overturned the convictions and remitted the matter to the local appeal court to decide whether there should be a retrial.

Meanwhile, attorney-at-law Isat Buchanan, during his submission, argued that the Court of Appeal must deal with the issue of the breaches of the accused's constitutional rights, which have not been justified by the Crown.

He also pointed out that there are questions surrounding whether the evidence collected, sorted, collated, and preserved was in breach of the men’s right to privacy.

Turning to the issue of the strength of the Crown's case, which is one of the prosecution’s grounds for pressing for a retrial, Buchanan argued that the Crown is relying on evidence for which it has not yet got permission to use and which will be challenged by the defence.

Buchanan emphasised that there were problems associated with the technological evidence that the Crown intends to use and the evidence of the main eyewitness.

Pertaining to the technological evidence, specifically the phone evidence, Buchanan said that the defence has an expert witness who provided a report to establish that there was tampering with the device and that the inadmissibility of the phone evidence and certain technological evidence, which would not be available to the defence, would place the defence in a worse-off position than before.

Further to this, he said the report from the expert would also show that the prosecution's case had weakened and had been whittled down.

However, Justice Marva McDonald-Bishop, noting that the CrownNo had objected to the report, told Buchanan that the appeal court would not be delving into that report as it was the jurisdiction of the lower court should the matter be retried.

Additionally, she said the court understood the point about the strength of the prosecution's case as it related to the technological evidence and "we accepted that that factor ought not be given any greater weight".

Moving on, Buchanan further pointed out that there were several inconsistencies in the sole eyewitness evidence and that similarly, the unavailability of the handwriting expert witness, who is the only person who had seen the eyewitness’s original statement, wiould also affect the defence's case. This, he submitted, was another point to be considered by the court in ruling against retrial.

The Crown will begin its argument today as to why the men should be retried.

tanesha.mundle@gleanerjm.com