PUB­LIC AF­FAIRS Why the X6 mur­der case crashed

Jamaica Gleaner - - OPINION & COMMENTARY - Dr Orville Tay­lor is se­nior lec­turer in so­ci­ol­ogy at the UWI, a ra­dio talk-show host, and au­thor of ‘Bro­ken Prom­ises, Hearts and Pock­ets’. Email feed­back to col­umns@glean­erjm.com and tay­loron­black­line @hot­mail.com.

KHA­JEEL MAIS died five years ago and he was killed by a bul­let from a 9mm Glock pis­tol. We know that he was the pas­sen­ger in a taxi­cab and seated in the rear, when he met his demise. His fam­ily is ter­ri­bly dis­traught and miss him im­mensely. This son, brother and rel­a­tive is gone for­ever. Noth­ing writ­ten past this line in this col­umn, on Face­book or other so­cial me­dia is go­ing to bring him back. God, and pos­si­bly at­tor­neys with the priv­i­lege of the cloak of si­lence, know who killed the youth. But only God will judge the killer.

No vengeance or court sen­tence could have can­celled out the death. This fact is in­escapable. Thus, as when it oc­curred back then, my deep­est con­do­lences go out to the fam­ily of this young man, whose life was pre­ma­turely snuffed out. Friends, other rel­a­tives and other mem­bers of so­ci­ety must em­brace the fam­ily in their grief and try to em­pathise.

Nev­er­the­less, all of what I’ve said is what we know. There was a homi­cide, but for all our col­lec­tive pain and out­rage, we don’t even know whether there was a mur­der. Now, I know that this sparks all kinds of ques­tions, as to whether I have swal­lowed the urine of a psy­chotic fe­line, but mur­der is a very spe­cific ac­tiv­ity.

It is ir­rel­e­vant that Mais might have been ‘trou­bled’ or, in street talk, a ‘bad bwoy’. Even hard­ened crim­i­nals can be mur­dered, and of­ten are. Thus, his ‘in­no­cence’ or ‘bad­ness’ mean noth­ing. Ask the po­lice who can smell the cof­fee from INDECOM breath­ing down their necks. One doesn’t have to be an an­gel to be a mur­der vic­tim.

To be mur­dered, one must have been killed in mal­ice. It must not be in cases where one’s life, or any­one else’s, is be­ing threat­ened, and this is the ex­act stan­dard for po­lice as well as li­censed firearm hold­ers, or any­one who has means of deadly force, in­clud­ing their hands, legs, cut­ting tools or stones. Busi­ness­man Patrick Pow­ell leaves the precincts of the Supreme Court af­ter be­ing freed of mur­der.

Not only do I stand on the same page as the di­rec­tor of pub­lic prose­cu­tions (DPP) in this mat­ter, I stand in the same line, be­cause one could not defini­tively place the freed ac­cused at the scene of the crime.

We know noth­ing ex­cept that young Mais was killed. A driver of a ‘new typa X6’ had a col­li­sion with the taxi Mais was trav­el­ling in. A sim­i­lar ve­hi­cle owned by the ac­cused had prima fa­cie ev­i­dence of a gun be­ing fired from the driver’s side. The owner of said ve­hi­cle owns a Glock, but there is no ir­refutable ev­i­dence that he was in the ve­hi­cle, fired any shots, or had any con­nec­tion to the lo­cus in quo. And don’t ‘cir­cum­stan­tial ev­i­dence’ me. Own­ing a car which is in­volved in a col­li­sion can­not be prima fa­cie ev­i­dence that one was in pos­ses­sion or con­trol of it.

And more­over, own­ing a gun hardly means that it is that gun which was fired or that he fired it. It is a stupid as­sump­tion that the owner of guns, il­le­gal or law­fully pos­sessed, do not aid and abet their il­le­gal pos­ses­sion. Sim­ple fact. Only a dilly-dally taxi driver, with pos­si­ble fearin­duced di­ar­rhoea, de­men­tia and am­ne­sia, saw, didn’t see, maybe saw, ‘never mek out’ or didn’t pos­i­tively iden­tify him.

NO SOLID EV­I­DENCE

So let me ask all those who have an opin­ion, in­clud­ing a lawyer who must have spent too much time at the bar he wasn’t called to or fre­quents. Who else, or what piece of solid foren­sic ev­i­dence, can defini­tively place the ac­cused man at the scene?

In plain Ja­maican lan­guage, “Ef u nain dideh, how u know

sey him en dedeh?” In law, that is called doubt, and that’s all a de­fence lawyer has to raise. What­ever my gut feel­ing may or may not be, I hon­estly do not know if the man who walked free of the mur­der charge was guilty. What mat­ters is that no ev­i­dence be­yond any rea­son­able doubt placed him there.

For all the out­rage and di­a­tribe about mis­car­riage of jus­tice, there is noth­ing un­usual about the for­mal ‘not-guilty’ ver­dict, be­cause dozens of mur­der ac­cused es­cape jus­tice although the po­lice know, but just can­not pro­duce ev­i­dence that will stand up against a crim­i­nal lawyer – and I’ve cho­sen my words wisely.

Ask any Ja­maican homi­cide de­tec­tive who, de­spite these odds, still man­aged to ar­rest around 60 per cent of killers last year. Wit­nesses dis­ap­pear, twist their mouth as if un­der an obeah spell, or sim­ply go blank like a Sam­sung S7 be­fore burn­ing up on the dock. Had the wit­nesses taken the gin­seng, or the other mem­ory pill whose name slips me now, there would be far more con­vic­tions of the guilty. By the way, we need to read the po­lice and DPP’s an­nual re­ports and kill the lie that most mur­der ac­cused are found not guilty.

As re­gards the where­abouts of the miss­ing firearm that the ac­cused has failed to dis­close, it means lit­tle. Los­ing one’s gun or be­ing care­less with it, or even loan­ing it out, is not a mur­der charge. Yes, there are other pos­si­ble crim­i­nal charges re­lated to the firearm. How­ever, re­fusal by an in­no­cent man to pro­duce a firearm, for what­ever pur­pose, does not in it­self place the ac­cused in the vicin­ity of the al­leged crime.

Nonethe­less, I am deeply dis­turbed that the ac­cused was charged for fail­ing to pro­duce his re­quested firearm as re­quired by the Firearm Act. And I shud­der to think that any­one could have ad­vised him to wil­fully breach the statute. Bet me and lose; noth­ing in any law or pro­fes­sional code could sup­port such an il­le­gal act. And no one, whether wit­ness, prose­cu­tor, po­lice or de­fence lawyer, has the right to lie or in­ten­tion­ally mis­lead the court, what­ever his ‘in­struc­tions’ are.

How­ever, the pis­tol is still out­stand­ing, and noth­ing tells me that it was re­ported as stolen or miss­ing, as re­quired un­der Sec­tion 41. The whole story might now elude us, but one day we all will know ‘what a Glock a strike’.

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Orville Tay­lor

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