D-Day for Kartel & co: Court to hand down retrial decision by July 31

The prosecution is pushing for a retrial despite the likelihood that two of the accused who are charged with the murder along with entertainer Vybz Kartel would have finished their sentence if convicted again.

“We are accepting that by the time we do come to a retrial, if it so orders, the appellants would have served close to or the full minimum sentence,” acting Director of Public Prosecutions, Claudette Thompson, said on the final day of a six-day hearing to determine retrial. The three-judge panel led by Justice Marva McDonald-Bishop will hand down the highly anticipated judgment by July 31.

If the men are retried and convicted, the sentencing judge will have to factor in the 13 years that they have already served, granted they have got bail, and cannot impose a sentence that is higher than the previous penalties.

But despite the present reality, in a final attempt to convince the Court of Appeal to rule in the Crown’s favour, Thompson doubled down on the argument that the accused men must not be allowed to walk free based on a technical blunder.

Vybz Kartel, whose real name is Adidja Palmer, and his co-accused, Shawn 'Shawn Storm' Campbell, Kahira Jones and Andre St John, were charged with the 2011 murder of Clive Williams and convicted in 2014.

All four accused were sentenced to life in prison with Campbell and Jones given pre-parole sentences of 25 years, Palmer, 35 years and St John, 30 years. However, two and a half years were later shaved off their pre-parole sentence by the Court of Appeal which upheld their convictions.

But on March 14, 2024, the United Kingdom-based Privy Council, Jamaica's final court of appeal, overturned the convictions on the grounds of juror misconduct and remitted the matter to the local appellate court for a decision on retrial.

Thompson, while pointing out that the sentence for murder is life imprisonment with a minimum 15-year pre-parole sentence, said there is also the alternative, a determinate sentence with a minimum pre-parole period of not less than 10 years.

However, she said when one considers the principle established in Meisha Clement v R, it is likely that the accused men would be afforded a minimum 15-year mandatory sentence.

“Additionally, we submit that the court would have to take into consideration if there were a retrial and conviction, the period already spent in custody and so it would be a determinate sentence imposed,” she said.

But McDonald-Bishop quickly pointed out that, “You cannot retry someone and give them a higher sentence than before… If you send them back and they should get a higher pre-parole sentence, it would prejudice them.”

Noting the sentences of Jones and Campbell, she pointed out that even if they were to be given the minimum 15 years pre-parole when the time spent is deducted they would have almost completed their sentence.

Thompson replied that it is unlikely that they will be given the minimum sentence.

Using the determinate sentence, when considering the 13 years, the judge would not be able to impose more than 10 years given that their previous sentence was 22 and a half years.

McDonald-Bishop said the two men stand to be prejudiced based on the length of time served in custody and the 13 years is based on the assumption that they would be offered bail if there is a retrial.

Thompson however conceded, “We do not have an answer beyond the answer that we gave.”

Earlier, in her response to the submission from the defence, she said, "It is [in] the interest of the public in Jamaica that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of some technical blunder."

She also stressed that the cost to be incurred should not be weighed too heavily as no cost can be placed on life irrespective of the deceased’s character.

She said there are remedies to address constitutional breaches regarding delays in the case.

"The courts have been and should loathe to dismiss a matter due to pretrial publicity as the criminal justice system has within it sufficient safeguards to mitigate the risk of prejudice," the prosecutor said.

She said there are "sufficient safeguards" to ensure that the men "get a fair hearing by an independent and impartial jury".

However, defence lawyer Isat Buchanan said the court must acquit the men given the confluence of factors including the constitutional breaches.

“It is not a case where the interest of justice demands a retrial as the men have specifically particularised their hardships and prejudices that they would have faced which are unchallenged by way of an affidavit from the Crown as well as the elapse of time,” he said.

Buchanan stressed that the length of time that has elapsed since the incident is a factor that must weigh against ordering a new trial, especially since the elapse has resulted in the breach of the accused men’s right to be tried within a reasonable time.

“As you know it [the trial] was 64 days previously and we are submitting that given what is now before the court it is likely to expand given the voir dires that would possibly follow so in a case like the interest of justice calls for an acquittal of the appellants,” he added.

Drawing on the precedent established by the case of Linton Berry v R, Buchanan said the case was not one in which the interest of justice required a retrial having considered the ordeal suffered by the appellants

Furthermore, he said the prosecution has failed to discharge its “evidentiary burden” to demonstrate how it would justify and treat the ordeal and breaches suffered by the appellants if a retrial was ordered.

Noting that the guaranteed rights and freedom must be taken seriously as warranted by a free and democratic society, Buchanan told the Crown that, having admitted that rights have been breached and are likely to be breached, there must make an appropriate response to the breaches which would be a judgment of acquittal to prevent further breaches, as anticipated.

He emphasised that the court must balance the fundamental rights of the appellants to a fair trial within a reasonable time against the public interest in the attainment of justice.

Furthermore, he said that despite the Crown’s argument that there are safeguards to ensure that the accused men get a fair trial, there is still the impossible task of getting a potential jury that will be able “to disavow itself from the notion that the accused men somehow benefited... from the action of the blunder with the jury.”

Meanwhile, his colleague, John Clarke in his submission, acknowledged that mere publicity, adverse or otherwise, is not enough to convince the court to rule against a retrial

The issue, he said, is that there is significant prejudice in relation to the commentary on the case, the leaked exhibits and the "the link" assumed in the public domain between the jury tampering and the accused men.

Clarke argued that the presence of key evidence in the public domain was one of the "special circumstances" in the case and reiterated that there is no safeguard in place to address those issues and it will be difficult to find an impartial jury.

tanesha.mundle@gleanerjm.com