‘Egregious errors’ - Missteps in deportee’s case lead to 13-year delay

A string of “egregious errors” by a senior judge coupled with a case file gone missing for over a decade caused Jamaica’s second-highest court to toss out the conviction of a deportee accused of stealing a credit card from a man who gave him a place to stay, and using it to rack up charges totalling nearly $400,000.

Michael Francis, who was deported from the United States in 2007, pleaded guilty on July 31 that same year to 20 counts of fraud-related charges in the then Corporate Area Criminal Court. He was sentenced the same day to a total of four years in prison by then Senior Resident Magistrate Judith Pusey.

Ten days later, Francis, through his attorneys, filed papers in the Court of Appeal challenging both his conviction and sentence and was later released on bail.

What happened to the case and the case file for the next 12 years remains a mystery to both Pusey and the Court of Appeal.

“The file could not be located for several years and only came to hand on the 23rd day of January 2019. Now over ten years later I am unable to recollect what transpired,” Pusey indicated in her reasons for judgment, which is among the documents before the Court of Appeal.

“There is nothing on the record to indicate why the matter lay dormant for over a decade,” the Appeal Court acknowledged.

When it eventually considered Francis’ case on September 25, 2019, the Appeal Court ordered that the guilty plea and prison sentence be set aside.

SERIES OF MISSTEPS AND BUNGLING

However, details about the case were not made public until late last month and they point to a series of missteps and bungling.

The Appeal Court, in its written decision made public on January 29, noted that none of the indictment orders with the charges laid against Francis was signed by Pusey, as is required by Section 272 of the Judicature (Resident Magistrate) Act.

“The [Judicature Resident Magistrate] Act prescribes that before a defendant can be tried in the Parish Court for an indictable offence, an order for trial on indictment must first be endorsed on the information and signed by the Parish Court Judge, as a condition precedent to the commencement of a trial,” it explained.

The judgment indicated, also, that the indictment which charged Francis with the offence of making a false declaration did not outline the allegations against him or the specific law that was breached.

“We are unable to state the basis upon which the Senior Parish Court Judge assumed jurisdiction to entertain a plea to this offence. The trial in the matter is declared a nullity,” the court ruled, siding with the arguments made by attorney-at-law Melrose Reid, who represented Francis.

The Office of the Director of Public Prosecutions, citing a number of case law on the issue, conceded that it could not challenge the appeal.

The Appeal Court also took note of claims by Francis that during his first appearance in the Resident Magistrate Court, he felt “pressured” to enter a plea of guilty and that he was ignored when he indicated that he had an attorney and wanted to provide information to mitigate his sentence.

“We find it of great significance also that it appears that the appellant was pleaded and sentenced on the same day, without being permitted to consult his legal representative and without being afforded an opportunity to mitigate his sentences. This is a practice that should be eschewed,” the court said.

Pusey, now a High Court judge, could not offer a rebuttal.

“Unfortunately, no note was made of what transpired in court on arraignment,” she said in her reasons for judgment, parts of which were reproduced in the Court of Appeal ruling.

“In addition, there is no number one information on the file with the indictment order or sentence recorded on it with the counts properly listed to assist the rehearsing of what transpired and to assist the Court of Appeal in its determination,” she added.

In the end, her recollection of what transpired, the Court of Appeal said, would not have affected its decision, as the failure to sign the indictment order “deprived her of jurisdiction” to preside over the trial.

“In light of all these egregious errors, the fact that almost 14 years would have elapsed since the commission of the offence and the hearing of this appeal, and the absence of any evidence and/or material to support these counts, we did not consider this to be a suitable case for proceedings to be commenced anew”.

MORE FORTUNATE THAN OTHERS

Francis, 57, told The Sunday Gleaner that he was still rejoicing that he did not end up being lost in the prison system.

“I was a little bit more fortunate than some people because I could have been locked up for 13 years waiting for my appeal against a four-year prison term to be heard,” he said, taking a shot at Jamaica’s penal system, which faced public criticisms last year for its handling of mentally ill detainees deemed unfit to plea.

He continued, “The case was just sitting there in limbo at the Kingston and St Andrew Parish Court and every time I go to the courts office to check on the case I got a different story. I had to do everything myself because I had to go to the records office at the courthouse and search through piles of files. To my dismay, when the file was found there were no documents in the file.”

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Jamaica’s judicial system needs to be modernised

Michael Francis’ case, legal practitioners say, is a reflection of Jamaica’s archaic and stagnant judicial system, which the Government, assisted by international partners, is pushing to modernise.

Delays by parish court judges to produce reasons for their judgments and long overdue transcripts of criminal trials in the circuit courts have been cited as the main reasons for the pile-up of criminal cases before the second-highest court.

The Court of Appeal, in its 2019 annual report, disclosed that there were 412 outstanding transcripts for criminal cases, a 21 per cent increase over 2018.

“It is noted that only 8.82 per cent of the outstanding transcripts in 2018 were received, and of the 100 that were outstanding for the period 2000 to 2014, only five were received,” Justice Dennis Morrison, then president of the Court of Appeal, wrote in the report.

“But, more significantly, particularly so in relation to criminal appeals, it [delay] signifies an ongoing departure from the explicit constitutional guarantee of fair hearings within a reasonable time.”

In November 2017, well-known medical doctor Jephthah Ford was convicted in the Kingston and St Andrew Parish Court and sentenced to six months in prison on each of two counts of attempting to pervert the course of justice.

He is free on bail pending the outcome of his appeal.

According to evidence produced at the trial, Ford offered police investigators millions of dollars during a secretly recorded meeting to free two Surinamese men who were held with US$533,000, approximately J$55 million, during a police operation along Half-Way Tree Road in St Andrew in July 2014.

But the appeal has stalled because then Senior Parish Court Judge Simone Wolfe Reece, who presided over the trial, has not yet produced her reasons for judgment, judicial insiders told The Sunday Gleaner.

Up to last Friday, Ford’s attorney, Bert Samuels, had no idea what was holding up the appeal. “I don’t have any notice at all. None whatsoever,” he said.

STILL WRITING IN NOTEBOOKS

Chief Justice Bryan Sykes has acknowledged publicly that delays in the production of transcripts have forced convicted persons to abandon their appeals.

Amid the push to modernise the court system, judges, in some criminal trials, are still recording the notes of evidence by hand, a major factor that contributes to the delays in producing transcripts, according to Sykes.

“They are still writing in notebooks longhand. In the case that just finished in Manchester [the $400 million fraud trial], the judge there wrote nine books of evidence. So, think of now, the preparation time for that transcript,” he said last September during a church service marking the start of the court term.

“It may take weeks, it might take months, and so those are things we need to look at in delivering justice,” Sykes added, while indicating that new audiovisual equipment recently delivered to the courts will be used to help speed up the production of transcripts.

One judicial insider described the process of producing notes of evidence at the parish court level as very tedious.

“The secretary types from the judges’ notebooks and then the judges have to proofread the notes. So, for example, there are two or three secretaries and they type all the appeals at Half-Way Tree [Kingston and St Andrew Parish Court],” the source explained.

“So, it’s not as quick a process. The process at the parish court is a little more involved.”

For Paula Llewellyn, Jamaica’s chief prosecutor, delayed notes of evidence and/or transcripts mean her office is hard-pressed to challenge convictions before the Appeal Court.

“That is a critical feature for the appeal to go on so if it does not exist, never mind that it is no fault of the prosecution, then you have to concede that there is technically nothing before the court in terms of a finding of fact,” said Llewellyn, the director of public prosecutions.

“It is unfortunate and not in the public interest for that to occur. Happily, in my experience and as far as I am aware, this happens in the minority of cases.”

livern.barrett@gleanerjm.com