Lambert Brown, Guest Columnist"When the integrity of the administration of justice is at stake, as it is now, this court has a duty to unleash its inherent powers; to maintain its authority; to prevent its process from abuse, and to keep the 'stream of justice pure'."
- Justice Roy Jones, Supreme Court of Jamaica, 2005.
DESPITE THE 'mother of all acquittals', the Kraal trial continues to generate much public discussion. Some lawyers for the defence felt it necessary to hold a press conference to explain the acquittal and to condemn any criticism of the trial.
The Director of Public Prosecution, whose office in my view did a good job in presenting its case, has taken the unusual step to speak publicly about the evidence presented at trial.
On Thursday, the 'foreman' of the jurors was on radio giving her views. In the United States, while jurors may make comments on the cases in which they sit, I do not think this is the practice here in Jamaica.
In fact, it may even be illegal to ask a juror what happened in the jury room, even after the case is over. Why has this case attracted so much attention? Why is so much 'spin' necessary to explain its outcome?
DISTRUSTFUL OF JUSTICE SYSTEM
The reality is, a large segment of our population has become distrustful of our justice system. They believe that it is not possible in our local court system to get justice against the state or its agents.
Whether this view is merely a perception or it in fact mirrors the reality is, in my opinion, unimportant at this time. What is necessary is an immediate, impartial and transparent enquiry into the justice system if we are to ensure that its authority is maintained, its process is not abused and, most importantly, ensure the purity of the stream of justice.
I attended the Kraal trial on several days. I did the same thing in respect to both the Braeton Coroner's inquest and trial. I have also been to court on other occasions.
I believe that our judges could benefit immensely from courses in scientific investigatory techniques so they could better understand the evidence that they will have to explain to the jury.
A simple issue such as the significance as to where a spent shell is found, in determining the likely location of the shooter when the gun was fired seems to have eluded some in our judiciary. Gunshot residue analysis, blood splatter evidence, and DNA analysis, are but a few elements of modern crime-fighting techniques.
However, I fear from experience in the courts that at least some of our judges are not up to speed with these issues.
Like judges everywhere, our judges are expected to have their biases, based on their world view.
In Jamaica, many people believe that our judges come to the table - Oops! Bench - with biases in favour of the state and its agents. This is the fuel I think that drives the controversy over the Kraal and other pro-state agents' verdicts. It makes no sense we pretend that our 'stream of justice' is pure. We must subject it to review, after all, 'justice is not a cloistered virtue'.
It is against this background that I wholeheartedly support trial by jury. I think we must oppose any further encroachment on this privilege of our citizens. Equally, I do not share the view that jurors cannot make mistakes or may not be biased. However, it is more likely that a jury of seven or more collectively will be less biased than a single judge.
Nevertheless, I will concede that jury trials can be manipulated. The state controls from whom the jury pool is drawn and it is the agents of the state who determine which juror is subpoenaed to attend court.
In a jury trial like the Kraal case, it is natural that advocates on both sides in the jury selection process would seek to get empanelled jurors they believe would be favourable to their side. In America, jury consultants who help lawyers pick jurors, are well rewarded. We do not have that practice here.
It is my view that where a lawyer appearing in a case before a judge has a social or working relation with a person sworn as a juror in that case, such lawyer should declare that knowledge upfront to the judge and such a juror should be disqualified from the case.
Fairness, in my view, demands that. In fact, in January 1997, in a criminal case in Kingston, a juror was discharged because he had said 'hello' to a former co-worker whom he had seen in court.
The co-worker was related to the accused man, but the juror did not know this. In fact, the entire jury was discharged in that case and a new set of jurors empanelled. Interestingly, in that case, too, the judge jailed a woman for contempt of court.
JUSTICE MUST BE SEEN TO BE DONE
In a civil suit brought by former Prime Minister Manley against John Hearne and this newspaper, it was discovered during the trial that a member of the jury either worked or was at the time working at the National Workers' Union of which Manley was once president. The trial was halted. The juror was disqualified and cost awarded against Manley.
During the Braeton inquest in the Spanish Town Coroner's Court, I witnessed a juror speaking with a police investigator from the Bureau of Special Investigation assigned to the case. I also witnessed the said juror driving away in a car with the same police investigator.
So what did I do about it? I typed and signed a statement about what I had witnessed. It was given to one of the lawyers in that case. I am aware that the matter was discussed in the judge's chamber. The police and the juror were questioned and what I said was admitted to be true. In the end, the juror was never discharged, but allowed to remain hearing the case.
In 1924, British judge Lord Hewart said the following: "It is not merely of some importance, but of fundamental importance that justice should not only be done, but manifestly and undoubtedly be seen to be done."
I came away from the Kraal case with the strong feeling that this standard of justice has not been met and our stream of justice is far from pure. Neither was I surprised at the outcome of the case.
The Kraal six have been acquitted and the verdict must stand, but I hope our laws could be changed like in England, where appeals on points of law could be made by the prosecution.
Lambert Brown is first vice-president of the University and Allied Workers' Union, and may be contacted at labpoyh@yahoo.com.
