Defence asserts challenges in ensuring fairness in possible Kartel retrial

The Court of Appeal on Thursday questioned the possibility of finding seven unbiased jurors, given the widespread publicity surrounding the case after the prosecution argued strongly that there are safeguards in the Jamaican court system to ensure a fair retrial for Vybz Kartel and his co-accused.

But prosecutor Janek Forbes argued, “It has not been established that it is impossible to find a panel of jurors from Kingston and St Andrew who are able to hear, consider, and independently and impartially discharge their function.”

Countering the defence’s argument that there are no safeguards to guarantee a fair trial, Forbes maintained that despite the significant public attention and reach of the publicity, amplified by the media, it is still possible for the accused men to get a fair retrial.

He advanced that safeguards such as polling of the jurors as well as challenges to the juror selection and the usual directions given at intervals throughout the trial can guarantee a fair trial.

Ultimately, Forbes said during his argument before a three-judge panel which will decide whether the men are to be retried: “When you come to consider the materials before the court, the court will have to consider and weigh whether or not the content is actually adverse and prejudicial or the extent to which it is.”

But Justice Marva McDonald-Bishop, who is leading the three-judge panel, expressed doubts.

She expressed concern that evidence, including voice notes and videos, found their way into the public domain, “where people heard voices [and] saw images” while the appeal was being heard.

The judge further questioned whether there would be issues with admissibility regarding the leaked material if the matter were to be retried.

Forbes, in reply, said that the evidence was disclosed to all parties and that the blame for any leak could fall on either side. At the same time, he said there are many ways that the evidence could have been leaked.

Defence lawyer John Clarke on Wednesday submitted that there were no common-law safeguards available that could fix the post-trial damage done by the publicity and guarantee the men a fair retrial.

Citing solutions such as polling of jurors, delaying the retrial, or moving it to a remote area, Clarke said none of the options would work in this case. He said the situation was just like “Humpty Dumpty – impossible to put back together”.

In another argument from the prosecution, which sparked further questions from the court, Acting Director of Public Prosecutions Claudette Thompson argued that while she would concede that the accused men’s rights to have their case tried in a reasonable time had been breached, it was justified.

In the same breath, she said the court process, which ensued from the moment the men were tried until their convictions, was handled in a reasonable time. The only delay, she said, occurred when the matter was to go before the Privy Council.

But Justice McDonald-Bishop cautioned that the prosecution had to consider its position, especially given that the men already spent 13 years in prison and that the first trial would not count, so in essence, the men’s rights would continue to be breached if the matter is to be retried.

STRONG CASE

During further arguments as to why the men should be retried, Thompson stressed that the Crown had a strong case and that it was relying on direct evidence and technological material comprising digital and telecommunications evidence.

When directed to the possible challenges promised by the defence of its technological evidence, Thompson said that even with the challenge, the Crown would have an objectively strong case.

But Justice McDonald-Bishop told her that that was not the prosecution’s biggest challenge as it had more pressing hurdles to overcome such as the availability of witnesses. Earlier, she had questioned Thompson about the availability of the witnesses it intended to call, pointing out that there was nothing before the court to say whether the witnesses had been contacted and when, and further, if they had agreed to give evidence.

“This court will not be sending any case to the Supreme Court again to sit and wait until witnesses are found,” the judge warned after pointing out that the mere submission of a list of witnesses without any other information was unacceptable.

She was then told that Deputy Director of Public Prosecutions Jeremy Taylor had indicated in an affidavit that checks had been made and most of the witnesses were found.

But the judge, still not satisfied, said, “If you think that is enough, that is a matter for you.”

While highlighting that the defence had put up a very strong case and that the hearing was a strict proceeding by order of the Privy Council, Justice McDonald-Bishop stressed that the matter must be properly developed, executed, and disposed of.

She further noted that this matter would be a test of the country’s pre-trial system.

Meanwhile, earlier in her submission, while agreeing that there was uncertainty surrounding a possible retrial date, Thompson said that the matter could be tried as early as the next Hillary term (January 2025 to April 2025). She explained that the Supreme Court had a system that prioritises certain vintage cases and a differentiated case- management system, which is aimed at fast-tracking matters.

Another argument was that the matter must be tried in the interest of justice as it involves an alleged murder, the use of an illegal gun, the missing body of the victim, and attempts to destroy the crime scene.

According to Thompson, the cost should not prevent the matter from being retried. She said the Government would have to bear the cost.

At the same time, she said a retrial would cost less than other trials such as the One Don Gang matter, where significant resources were required, including lawyer fees and the use of multiple courtrooms. In the matter, she said the only resource that are required is the jury.

The Court of Appeal, however, has requested an audit of all the matters that were sent back for trial in the last six years and is awaiting a report.

Kartel, whose given name is Adidja Palmer; Shaw ‘Shawn Storm’ Campbell; Kahira Jones; and Andre St John were all handed life sentences in April 2014 for the 2011 murder of Clive ‘Lizard’ Williams. However, on March 14, 2024, the United Kingdom-based Privy Council, Jamaica’s final appellate court, overturned the convictions on the grounds of juror misconduct. It sent back the matter to the Court of Appeal for a decision on retrial.

tanesha.mundle@gleanerjm.com