Lessons from the murder trial of Kartel et al., appeals, retrial

Now Now that the dust has settled and the marathon case is being reported in our legal reports as “Shawn Campbell et al. vs. The King” but popularly referred to as the “Vybz Kartel Murder Case,” it is time to reflect on some important and instructive moments in this historic case.

Following the missing person report in August 2010 concerning Clive “Lizard” Williams, police arrested and charged five men, including Shawn Campbell and Adidja Palmer (Vybz Kartel), Kahira Jones, Shane Williams and Andre St John. After nearly four years in prison, they were found guilty of murder – with the exception of Shane Williams – and sentenced to life imprisonment. The four were only eligible for parole after 25 to 35 years.

The trial was anything but uneventful. It began with 12 jurors and ended with 11. Among those 11 was a briber. The Jury Act of 2014 allowed murder cases to be tried with 12 jurors. In the decade since this trial, murder cases can now be tried with seven jurors. When the men were tried in 2014, the judge could not sit with fewer than 11 jurors. This was the dilemma the trial judge faced when he acquitted a juror mid-trial. The judge could not reduce the number any further without being forced to declare a mistrial and order a retrial. In retrospect, the judge should have refused to release the jurors, which brought the number down to 11. The acquitted juror had complained that her son, who was being held in the same institution as the defendants, had expressed great anxiety in the event that she would render a verdict unfavorable to the defendants. What the judge should have done, in hindsight, was to transfer either her son or the defendants to another institution and proceed with a jury of twelve.

Fair trial denied

It was the charge of bribery levelled against Juror 'X' by the foreman of the jury that ultimately led to the successful claim that the men's right to an impartial jury had been trampled upon and that they had been denied the right to a trial by an independent and impartial tribunal in contravention of Article 16 of the Constitution. The trial judge had to take responsibility for this error; however, I consider that both the Director of Public Prosecutions (DPP) and the local Court of Appeal also made errors.

Why am I saying this about the DPP? Her role as chief prosecutor may have justified her attendance at the chamber hearings regarding the foreman's complaint about Juror X, who allegedly made the offer to pay the foreman $1 million in two equal instalments. However, the DPP encouraged the judge to proceed with the case rather than abandon the trial. The DPP said: “[A]As far as the prosecution is concerned, we are prepared to proceed with the case.” The DPP then asked the trial judge not to deal with the foreman’s bribery charge, but to “just remind them of their oath and their charge” (page 11 of volume 10).

The right to a fair trial is one of our fundamental rights. The prosecution is an organ of the State. The framers of our Constitution have expressly stated in Section 13 (2(b) that “…no organ of the State shall take any action which shall abrogate, abridge or infringe these rights”.

In the 2001 appeal of Barry Randall before the Privy Council of the Cayman Islands, in which a prosecutor's misconduct was found so egregious that the conviction was overturned, the court admonished prosecutors: “The right to a fair trial belongs to the guilty as well as the innocent, for an accused is presumed innocent until proved otherwise in a fair trial.”

In Shawn Campbell v Vybz Kartel, the trial judge was overly concerned about the inconvenience of rehearing the longest criminal trial in Jamaica's history. He allowed expediency to override the requirement of a fair trial. It was also a policy he failed to follow in Randall. In that case, the Privy Council said it was “the longest criminal trial ever held in the Cayman Islands”. Despite that fact, the Privy Council continued, there was “an overriding requirement: to ensure that the accused of a crime is fairly tried”.

Aside from the judge and the DPP, our own local Court of Appeal must also face criticism. I would like to make it clear that statistics show that the judgment of the Court of Appeal in England has been overturned by its highest court of appeal more often than the judgment of our local Court of Appeal has been overturned by the Privy Council. I would like to silence those who would use the Kartel case to support the retention of this colonial court. This is a position I cannot support as we have capable judges in the Caribbean to staff a highest regional court of appeal.

But as I said, it is still a mystery to me why my claim for jury misconduct was not upheld in our Court of Appeal. The denial of the defendant's right to be tried by an independent and impartial jury was obvious and easy for first-year law students to understand. All I can say is that in the future, the local Court of Appeal must demonstrate a keen awareness of the Privy Council's statement that “the right of an accused to a fair trial is absolute.”

Deficiencies of the Privy Council

I also have a criticism of the Privy Council. The prosecutor had been given permission by the trial judge to ask questions directly to the foreman in the courtroom. The Privy Council had no objection to this questioning by the prosecutor. I am of the opinion that no lawyer, whether defence counsel or prosecution, should be allowed to question a juror directly in a trial in the courtroom or in open court.

A question to a juror can endear him or her to the jury, which is a subtle but real interference in the affairs of the jury who are deliberating on the facts. The approach that has always been accepted is to ask the judge to ask the question on behalf of counsel, with terms approved by the judge, rather than allowing and answering direct and uncontrolled questions. In legal practice, a question may be asked by a lawyer who is not interested in the answer, but in the message that the words used in the question convey to the person being questioned and to the judge/jury who are hearing the question.

In addition, there was another issue of great public and constitutional importance. It concerned the fact that the judge had admitted the contents of Kartel's phone into evidence. The phone was examined and used against him, in breach of his right to privacy in communications, and without the permission of a judge, in contravention of Section 13(3)(j)(iii) of the Constitution and the Access to Information Act. The Privy Council refused to resolve the issue of illegally obtained evidence in Jamaican jurisprudence, thereby depriving us of guidance on a major issue of fair trial.

Despicable police behavior

The case brought to light numerous examples of unacceptable police conduct. One of these involved the safe storage of evidence. The original CDs containing the information allegedly stolen from Vybz Kartel's phone were lost by the police, thus denying the accused the opportunity to compare the original and the copy. Furthermore, the phone stolen from Vybz Kartel was kept in an unlocked filing cabinet and, shockingly, the said phone was used by the police for making private calls and sending text messages.

The alleged crime scene at the address at Havendale, Kingston 8, St Andrew, was heavily tampered with and compromised while under police surveillance and control. How can the police take control of a crime scene, cordon it off with yellow crime scene tape and allow others to mysteriously gain access and contaminate the alleged crime scene?

Praise for the lawyers

I would like to commend all the lawyers who appeared before the four courts and whose hard work led to the successful outcome of this case. Four teams were involved in this case. Firstly, the trial team who worked on this matter for 17 weeks. The defence trial team's insistence that a court reporter be present to take a transcript of the proceedings in the judge's chambers during the investigation into jury misconduct is very commendable. It provided the Privy Council with material which led to the acquittal. In fact, this transcript of the proceedings in the judge's chambers which ultimately led to the acquittal was not included in the transcript for the local Court of Appeal which ultimately found its way to the Privy Council.

Special mention must be made of Pierre Rogers, whose words of encouragement to the judge to stop the trial were included by the Privy Council in its written judgment. At my insistence, by an application to a single judge of our local Court of Appeal, a new Volume 10 was later added as part of the case, containing the judge's handling of the complaint of Juror X that he had offered bribes. It should be noted that Juror X was later tried for this misconduct, found guilty, and sentenced to prison.

The 6,196-page transcript and record of the appeal testify to the length, complexity and hard work of the four teams. The trial team was followed by the Court of Appeal team, the Privy Council team and finally the retrial team.

I will close with the words of F. Lee Bailey, the renowned lawyer who was part of the OJ Simpson defense team, that “the defense never rests.” These words were obviously a shining example for the lawyers in the Shawn Campbell/Vybz Kartel case, who were guided by the truism that lawyers are indeed guardians of the Constitution.