Prevent bad-faith juries

EVEN AS it examines the future of jury trials in Jamaica, the Holness administration must urgently bring to Parliament legislation to close a loophole for the cynical contamination of juries, deliberately aimed and the undermining of cases – the potential for which was identified by the Privy Council in the Vybz Kartel murder appeal.

When faced with a deliberately contaminated jury, beyond the point where a cure – outside of abandoning the trial – is possible, judges should have the option of converting the case to a bench trial, once specific criteria are met.

Usually, drafting legislation is a slow, grinding process in Jamaica. But in this case, Delroy Chuck, the justice minister, could lift, almost verbatim, Section 46 of Britain’s Criminal Justice Act 2003 and insert it as Section 31 (5) of Jamaica’s Jury Act.

In 2014, Kartel – his given name is Adidja Palmer – a widely popular dancehall artiste, and three associates were convicted for the 2011 murder of another associate,

Clive ‘Lizard’ Williams, allegedly over Mr Williams’ failure to return illegal guns given to him for safekeeping. Mr Williams’ body was never found.

Kartel and the others – Shawn Campbell, Kahira Jones and Andre St John – were sentenced to life in prison, having to serve between 25 and 35 years (Kartel) before the possibility of parole. Shane Williams was acquitted.

But last week, the Judicial Committee of the Privy Council (JCPC), Jamaica’s final court, overturned the convictions and remitted the case to the island’s Court of Appeal to decide whether the quartet should be freed or face a new trial. The Privy Council held that the contamination of the jury meant that Kartel and his colleagues had not been assured of a “fair hearing by an independent and impartial court”, as guaranteed in the Charter of Fundamental Rights and Freedoms of Jamaica’s Constitution.

GAINING ACQUITTAL

Ironically, the jury contamination was allegedly with the intention of gaining the acquittal of Kartel and the others, for which Livingston Caine, one of the jurors on the case, was a year ago convicted for perverting the course of justice. He was jailed for 12 months at hard labour. At the time, however, Mr Caine’s lawyers said the verdict would be appealed.

Long and complex, the Kartel case lasted 64 days. On the final day, the forewoman of the jury reported that she had been offered J$500,000 by a fellow juror to use the respect and influence she enjoyed among the group to convince the jury to return a not-guilty verdict. During an investigation by the judge – conducted outside of the presence of the other jurors – the forewoman reported that all the jurors – apparently including one who was discharged weeks earlier – had been separately approached by the alleged briber, or “miscreant” as called by the Privy Council.

Defence lawyers had argued for the jury to be dismissed and the case abandoned, but the presiding judge decided to continue with the case, with the alleged corrupt juror in place. Had Mr Caine been removed, with one juror having previously been excused, the number would have fallen to below the minimum number that was at the time required for a murder conviction. The judge decided to continue the case.

The Privy Council held that the decision by Justice Campbell was wrong in failing to isolate the jury from the source of the contamination.

INSUFFICIENTLY ROBUST

The JCPC also felt that Justice Campbell’s investigation of the alleged attempts to corrupt the jury was insufficiently robust to determine how deeply and widely it had gone, so as to determine what remedy was to be applied. Neither were they satisfied that he was aggressive enough, in light of the developments, in asserting the obligations of jurors to abide by their oaths or affirmations.

But at the bottom, the Privy Council’s decision rested fundamentally on the possibility of those jurors who knew of the perverse intention of one their colleagues, whether consciously or unconsciously, overcompensating, resulting in bias against the defendants. And in the circumstances of this case, there was no cure for that potential mischief outside dismissing the jury.

Said the judgment delivered by Lord LloydJones: “In coming to this conclusion, the Board is mindful of the very serious consequences which may flow from having to discharge a jury shortly before the end of a long and complex criminal trial. It is also very conscious of the danger of deliberate attempts to derail criminal trials, in particular in their closing stages, by engineering situations in which it becomes necessary to discharge the jury. In England and Wales legislation now provides that in certain circumstances, it is permitted to discharge a jury because of jury tampering and to continue the trial without a jury but by judge alone (section 46(3) of the Criminal Justice Act 2003). However, in the absence of such a provision – and there is no such provision in Jamaica – there will be occasions on which, as in the present case, a court will have no alternative but to discharge a jury and end the trial in order to protect the integrity of the system of trial by jury.”

While there is no evidence that this has ever occurred, or is likely to occur in Jamaica, Minister Chuck should act quickly against the possibility.

The opinions on this page, except for The Editorial, do not necessarily reflect the opinions of The Gleaner.