Tue | Oct 24, 2017

Jury trials a thing of the past?

Published:Saturday | January 30, 2016 | 12:00 AMBert Samuels

Jury trials a thing of the past?

I am compelled to enter the debate (in the press) and give my full support to Valerie Neita-Robertson's and Clive Mullings' position for the retention of 12 jurors deliberating on non-capital murder cases.

It is important, for the discussion, to put the history of the jury system into context. Our Jury Act was promulgated in 1898. However, the system of trial by jury long preceded 1838 by centuries, this being the year when Jamaicans were, for the first time, seen as humans entitled to due process. Under the Jury Act, both civil and criminal trials allow ordinary citizens to participate in the justice system as judges of the facts.

Cumulatively, Mrs Neita-Robertson and I have 74 years in the criminal courts. We both have had the privilege of being front-row participants in the system of trial by jury. Our views must be measured against our collective experience. A little-known fact is, though we appear on the vast majority of times for the defence, we have, on occasion, also been retained by relatives of persons who have been killed, to associate ourselves with, and give our support to, the prosecution. In short, we have both traversed both sides of the criminal Bar.

The Offences Against the Person Act was amended in 1992. Our Parliament created two classifications for the offence of murder - capital and non-capital. The sentence for capital murder can result in death by hanging. The sentence for non-capital murder is imprisonment for a fixed term before one is eligible to apply for parole. So, though, on average, that eligibility for parole kicks in after the lapse of 20 to 30 years (depending on how egregious the killing), it is foreseeable that a convict's imprisonment can surpass the 20 to 30 years, should parole be denied.

 

BLURRED LINES

 

In our experience, the courts have shied away from imposing the death penalty in capital cases. The result is that lengthy terms of imprisonment are the order of the day for both capital and non-capital murders. It is, therefore, not inconceivable that today, with the new amendment to the jury law, a man can be tried by seven and another by 12, and both are sentenced to the same period before they can apply for parole! The point I am making here is that the distinction between a jury for capital and the jury for non-capital has, in practical terms, become blurred. It is against this background that a discussion on the reduction of the number of jurors required to deliberate on a case of non-capital murder must be cast.

The Jury Act was careful to single out the number of jurors required to deliberate on cases of murder prior to the advent of the creation of the two categories in 1992. It required the unanimous verdict of 12 for the offences of murder and treason before a defendant could be either acquitted or convicted. All other offences of a lesser gravity required seven jurors. Those offences also never required - unlike murder - unanimity before their verdict could be accepted.

The first amendment to the Jury Act took place in 2010 and led to, for the first time, a majority verdict of nine for non-capital murders, abandoning the need for unanimity. As if that were not enough for the lobbyist for reducing the strength of the jury system, we have eroded even further the protection it offers, reducing the number required by five!

Trial by one's peers is not only inextricably bound up in our democracy, but it also has its origins in the concept that a citizen's fate, where the consequence (sentence) is serious, should not be left in a single pair of hands. I have often recounted the words of the late Justice Martin Wright who, in addressing jurors three decades ago, repeated a truism when he said, "The collective wisdom of 12 jurors was superior to that of any single judge."

The judge is supreme on the law, however, the coming together of 12 persons on life issues is richer, and hence, wiser than any single judge. There is a connection between the vote of each member of the electorate to decide on who will govern, and the verdict of a jury. They are both participants in the democratic process. They give flesh to the concept of the separation of powers. They secure the independence of the judiciary from the other all-powerful arms of Government. In short, they guarantee a vital check and balance between tyranny and good order.

The random selection of jurors is void of the influence and/or control of the state. As regards the selection of judges, there is a Judicial Services Commission, but how our judges are appointed is not entirely void of the influence of the State; the commission is appointed by the State. The net result is that, regarding a defendant who is charged for a serious offence, trial by jury is our only guarantee of a verdict far removed from any political influence whatsoever.

 

NOT AS SERIOUS AS MURDER

 

It is based on these principles outlined so far that the reduction in the amount of jurors must be looked at. The judges of fact are now the same in number as judges of fact in burglary, rape, or motor manslaughter cases. By no means are these offences, in terms of the possible sanctions, as serious as non-capital murder.

The justification (sic) for the reduction is that there is a scarcity of jurors. Respectfully, what is scarce is the will to uphold a system which was fought for to guarantee the liberty of every citizen. Five persons can now determine one's guilt, when prior to 1992 it required 12! The population has doubled since Independence, so that more qualified adults are available today. Even fisherfolk know that they must increase the size of their nets to satisfy increased demand for their stock.

A combined TRN/voters' list guarantees an adequate supply of jurors. Pay them and treat them well, and like judges of the law, we will have as many as we need. The delivery of justice can't come cheap. Nor can expediency replace due process.

I believe in the justice system and the rule of law as much I am committed to trial by jury. No new legislation, with imprisonment spanning multiple decades, has been made to be tried by jury. The lotto scamming law imposes up to 25 years, and the anti-gang laws up to 30 years. They both are triable without jurors. The reasonable inference for this trend is that trial by jury is on its way out.

Every new serious offence created by our Parliament in the past 30 years has avoided jury participation, and where governed by time-honoured principles when jurors are required, their numbers have been substantially reduced. Jurors have become an endangered species Their use shows all the signs of increasingly becoming an extinct entity.

Jamaica, the boulders of the great protective wall guaranteed by our jury system are coming down.

• Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.