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Like Humpty Dumpty, defence lawyer John Clarke yesterday charged that there were no common law safeguards to repair the post-trial damage caused by the bribery issue in the murder trial of Vybz Kartel and his three co-accused.
In closing his defense arguments against a retrial, Clark stressed that it was too late to address the issue now, noting that the trial judge could have taken certain steps, such as a gag order or a ban on publications regarding the matter, to minimize publicity.
He said that if these common law options had been adopted, “these appellants would never have publicly complained about the bribery and how much Jamaicans look upon them, as evidenced in the material before this court, that the bribery could have affected another hearing”.
Clarke acknowledged, however, that despite the complaints about bribery, the defense would accept any remedy the court could find to remove prejudice against the defendant.
Citing a similar case, he said three options were proposed – polling the jury, delaying the retrial and moving the case to a remote area to address publicity issues.
“Given this, we believe that if the prosecution can prove that any of the above options can save this case from retrial, then we have failed on this point,” he added.
But Clark was quick to point out that the trial could not be postponed; nor could it be moved to a remote area.
While the island can conduct public opinion polls, Clark said the test is focused on whether it is possible to assemble a jury that is free of bias. At the same time, he said the court could review all the material to determine how widespread it was and the nature of the bias to unearth the possibility of subconscious bias.
Taking all of this into account, Clark speculated that it would be impossible to “rehabilitate Humpty Dumpty” at the Court of Appeal hearing that will decide whether to retry Cattell (born Adijah Palmer), Sean “Shawn Storm” Campbell, Kashira Jones and Andre St John for the September 2011 murder of Clive “Lizard” Williams.
The Court of Appeal upheld the 2014 conviction in 2020. However, in March this year, the UK Privy Council overturned the conviction and sent the case back to the local Court of Appeal to decide whether a new trial should be held.
Meanwhile, attorney Isat Buchanan argued in his filing that the appellate court must address the issue of violations of the defendant’s constitutional rights, which were not explained by the prosecution.
He also noted that there were questions about whether the collection, classification, organization and preservation of evidence violated the privacy rights of these individuals.
Turning to one of the prosecutors’ arguments for a retrial, the strength of the case they had laid out, Buchanan argued that the evidence they relied on had not yet been cleared for use and would be challenged by the defense.
Buchanan stressed that there were problems with the technical evidence and key eyewitness evidence that the prosecution intended to use.
Regarding technical evidence, particularly telephone evidence, Buchanan said the defense had an expert witness who provided a report confirming that the equipment had been tampered with, and that telephone evidence and certain technical evidence were inadmissible because the defense did not have access to them, which would leave the defense in a worse position than before.
Moreover, he said the expert’s report also showed that the prosecution’s case had been weakened and undermined.
However, Justice Marva McDonald-Bishop noted that the prosecution had challenged the report and told Buchanan that the appeals court would not delve into it because it was the jurisdiction of the lower court if the matter was reheard.
Furthermore, she said the court understood the strength of the arguments put forward by the prosecution as it related to technical evidence and “we acknowledge that no further weight should be given to this factor”.
Buchanan further pointed out that the evidence of the sole eyewitness contained multiple inconsistencies, and that the absence of the handwriting expert witness (the only person who had seen the eyewitness’s original statement) also affected the defense’s case. He said this was another factor that the court would consider in deciding not to grant a retrial.
Prosecutors will begin arguing today why the two suspects should be retried.
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