Murder convict files $35m suit against State for trial delays

Mervin Cameron, who spent six years in custody before he was tried and convicted in June 2019 of double murder, is suing the State for $35 million for breaching his constitutional right to a trial within a reasonable time.

In another case, 34-year-old Tuscan Whyne is appealing his murder conviction and calling for “redress for the breach of his constitutional right to a fair trial within a reasonable time”, after he spent eight years in custody before he faced trial. He was sentenced to life imprisonment in 2015, and ordered to serve 20 years before he was eligible for parole.

With frequent occurrences of trials being delayed for inordinately lengthy periods, several legal experts are calling for an end to this “injustice” and believe financial compensation should be awarded by the State for breaching the rights of the accused.

“The Constitution states that trial must take place within a reasonable time, and eight years is not a reasonable time; it is an injustice,” said one attorney.

“The judges have the power to take control of a case and say, ‘This matter is going on for too long’, and set a specific date for the case to be disposed of one way or another,” a retired Court of Appeal judge pointed out to The Sunday Gleaner last week.

He also urged judges to be aware of the practice of some lawyers who indulge in “judge-shopping”.

He referred to a case some years ago when an accused man who had a matter in the Gun Court wrote to the late Chief Justice Edward Zacca, complaining that his case was taking too long to be tried. He said Zacca, in the interest of justice, immediately assigned a judge to try the case.

“We took the view that the delay was equally contributed to by both parties, and that the appellant’s constitutional right to a fair trial, within a reasonable time, was breached to the extent of the State’s culpability. The appellant would, therefore, be entitled to an appropriate remedy,” the retired judge explained.

Attorney-at-law Hugh Wildman, who is representing Cameron in the lawsuit against the State, said that scant regard is being shown for the constitutional rights of many persons who have been appearing before the courts.

“Compensation should fit the callousness on the part of the State because the Constitution is the highest law of the land and should not be violated. Compensation should reflect the seriousness of the breach,” he said.

Attorney-at-law Anthony Williams told The Sunday Gleaner that “persons should definitely be compensated if their constitutional rights to a fair trial within a reasonable time have been breached. There are provisions in the Constitution for such persons to be compensated.”

TRIAL NOT UNFAIR

In making a ruling in the case of Whyne in July, the Court of Appeal found that there was a breach of his constitutional rights and gave him a one-year reduction of his sentence.

The Court of Appeal also noted that “… we do not think the delay in the circumstances was such that rendered the trial unfair, as it is our considered view that the directions given by the trial judge were appropriate and sufficient to warn the jury of the risks attendant to the delay”.

The ruling was made after the court examined the records in the parish court and submissions made by the prosecution and the appellant’s attorney-at-law, Melrose Reid.

The constitutional breach was one of the grounds on which Whyne was seeking to gain his freedom.

He was arrested and charged on October 31, 2007 for the murder of Webster Bailey, otherwise called ‘Bald Head’ and ‘Bigga’, who was fatally shot about midday on October 28, 2007 in the vicinity of the Hannah Town Police Station in Kingston. A police sergeant who knew the appellant had witnessed the shooting incident.

Whyne denied shooting Bailey and said in his defence that he was not in the area at the time of the incident.

He was tried for the murder eight years later and convicted by a jury in July 2015. He was sentenced two months later to life imprisonment and ordered to serve 20 years before he was eligible for parole. The judge, in sentencing him, discounted the eight years he had been in custody.

However, it was argued on appeal by Reid that the trial judge should have dismissed the case because of the unreasonable delay prior to trial. She argued that the judge should have given an additional discount for the delay when sentencing Whyne.

Director of Public Prosecutions Paula Llewellyn and Crown Counsels Kimberley Dell-Williams and Dwayne Green took no issue with Whyne raising the constitutional point on appeal. However, they argued that the delay, which was admittedly long and not ideal, was due mostly to Whyne’s own doing, as there were at least 27 times in the Home Circuit Court when the trial was put off because Whyne had either changed his legal representation or needed to have it settled.

The prosecution noted that the reasons for the delays were numerous and also referred to times when Crown witnesses were absent and Whyne was brought late to court.

‘TWO DISCREET ISSUES’

The appeal court said it found no basis upon which the trial judge should have dismissed or stayed the trial.

However, President of the Court of Appeal Justice Patrick Brooks, Justice Carol Edwards and Cresencia Brown-Beckford, who heard the appeal, said they disagreed with the Crown that the credit for time spent on pre-trial remand appropriately addressed the issue of delay. They said “time spent in pre-trial custody and redress for a breach of the right to a fair trial within a reasonable time are two discrete issues”.

“The appellant was entitled to separate redress to vindicate the breach of his constitutional right,” the appeal court ruled and deducted one year from the sentence for the breach.

In 2017, while Cameron was in custody for four years, the Constitutional Court ruled that his right to a fair trial within a reasonable time was breached. By a majority decision, the court ruled that the State should compensate him.

Cameron is appealing his conviction of life imprisonment and 35 years before being eligible for parole.

Wildman said he is awaiting the outcome of the appeal before he pursues the claim for compensation.

editorial@gleanerjm.com