‘It was an expected ruling’

While underscoring that Jamaica’s justice system needs fixing, one of the attorneys of newly freed dancehall entertainer Vybz Kartel said yesterday’s decision by the Court of Appeal to release the artiste and his co-appellants signals that the Constitution works and remains an avenue for justice.

“The Constitution works. It has always been our belief,” lead attorney for the men, Isat Buchanan, said moments after the highly anticipated verdicts of acquittal were handed down.

Expressing his joy for the men, Buchanan said, “This is their Independence, their Emancipation, July 31st for them.”

Newly minted President of the Court of Appeal Justice Marva McDonald Bishop, in freeing Kartel, whose given name is Adidja Palmer; Shawn ‘Shawn Storm’ Campbell; Andre St John; and Kahira Jones, ruled that the court would not be ordering a retrial as it was not in the best interest of justice.

Jones, who is serving an 18-year sentence for wounding with intent stemming from a 2009 incident in which he shot and injured a man in Waterford, Portmore, St Catherine, will not be freed.

The quartet were convicted in March 2014 for Clive ‘Lizard’ Williams’ murder and sentenced to life in prison a month later. Their convictions were subsequently upheld by the Court of Appeal in 2020.

However, on March 14, Jamaica’s final appellate court, the United Kingdom-based Privy Council, quashed the men’s murder convictions on the grounds of juror misconduct and remitted the matter to the local appellate court for a decision on retrial.

The Privy Council ruled that the trial judge should have dismissed a tainted juror, Livingston Cain, who, later, was found guilty of accepting a bribe to try to influence other jurors in the case.

McDonald Bishop, who was part of a panel of judges including Justice Paulette Williams and Davis Fraser, who decided the case, said a number of factors were considered in arriving at a decision and that“having weighed everything in the balance, the weight is against a new trial”.

A jubilant Buchanan, flocked by members of the victorious legal team - attorneys-at-law John Clarke, Alessandra Labeach, and Iqbal Cheverria - said the ruling was evidence that one coud not do anything without God.

“We have always said this many times during interviews - God and time. We do the work while God grounded us in the faith and so were confident of this outcome,” he said.

However, he highlighted that it was important to note that the court found that there was no evidence linking the men to the jury tampering and that they were clearly innocent.

Changes needed

Stressing the need for respect for the Constitution and for the correct narrative to be sent by the media, Buchanan added, “There is a lot of changes that need to come, including the starting of innocence projects because the idea that persons can gamble with the Constitution and liberty of people is something that we ought to be very afraid of in terms of modern narrative and media.”

Meanwhile, his colleague, Clarke, described the ruling as a bittersweet moment for the men.

“I don’t think that if you ask any of the appellants they will say that they have gotten justice because from day one, they have professed their innocence and at the end of the day, you have after almost 13 years, they are just going home without the merits of the case being decided, so for the appellants, it is regrettable how the matter has ended.

“One can only hope that this is a teachable moment for our country as we move forward to ensure we achieve the ideals of our anthem - justice for all - and we hope that the person who has the power will examine this to ensure that no other Jamaican citizen has to spend 13 years and after 13 years there is nothing that nobody can do to give back Kartel or any of the appellants the missing 13 years of their lives,” he said.

Ultimately, he said the authorities have to do better for the appellants and the victims who may feel that they did not get justice.

Clarke, in the meantime, commended the court for returning the judgment in record time given the volume of material that it had to review.

Standards and rules

Reacting to the judgment and the significance of the decision, well-known defence attorney Christopher Townsend said that although the judgment had not yet been released, it would set some standards and rules on how to proceed in matters of this nature.

“It was an expected ruling. I am not surprised by it at all. From my observation it is the only fair ruling that could have been arrived at and certainly it is the kind of ruling that one would expect of that particular panel, and certainly coming on the heels of her appointment, it says a lot. We believe that the Court of Appeal has been left in good hands,” he said.

While the crime and how it was done was offensive, one must adhere to the rules of justice, Townsend said.

“So in this instance, the State had failed, and for a retrial to happen, it would be a further failure of the State,” he added.

The panel of judges, in arriving at the decision yesterday, considered 12 factors.

The factors were the seriousness and prevalence of the offence; the strength of the prosecution’s case; the availability of the witnesses and exhibits; the availability of the defence witnesses; the delay and whether a trial could be facilitated within a reasonable time; the time, financial cost, expense, and impact on the court’s resources if a new trial was reordered; the unfairness of a new trial if ordered; and the ordeal to be faced by the appellants if a retrial was reordered.

The impact of prejudicial publicity on the fairness of a new trial if ordered; whether the new trial would give the prosecution an unfair advantage; changes in the Jury Act, potential legislative changes in the sentence for murder ;and the possibility of prejudice arising from the mandatory minimum sentence and minimum term for eligibility for parole were also considered.

Noting that the case had borne every hallmark of a “deliberate attack and barefaced defiance of law and order”, McDonald Bishop said, “The court is, therefore, satisfied that the nature, the seriousness, and prevalence of the alleged offence in this case are powerful factors that weighed in favour of a retrial.”

At the same time, she said, “The court, however, finds that there are several equally powerful factors, which when combined, militate against ordering a new trial.”

She listed such as the prosecution’s insufficient and inadequate account of the availability of the witnesses and trial exhibits, the unavailability of witnesses and exhibits, which was relied upon by the defence in the first trial, the financial impact on the appellants, and the impact on the court resources if a trial was ordered, which swung the pendulum in the former convicts’ favour.

The judges also considered the psychological, financial, and medical effects on the appellants who had already spent 13 years in prison, Palmers’ medical problems, declining health, and the lapse of time between the commission of the offence and the possible 15 years that it would take to get a new trial.

In the meantime, the judge said, “We find that the submission regarding pre-trial publicity did not assist the appellants. Pre-trial publicity is such that you would have to prove that it is impossible to obtain a fair trial, and that question is one for the trial court.”

The Office of the Director of Public Prosecutions said it would await the written judgment before commenting on the decision.

tanesha.mundle@gleanerjm.com