Tue | Dec 1, 2020

Glenn Tucker | Hell no! Bar DPP from appeal

Published:Friday | August 2, 2019 | 12:00 AM
Paula Llewellyn, Jamaica’s chief prosecutor.
Glenn Tucker

Imagine, if you will, a scenario in which you emerge from the CXC examination room and your classmates are discussing the questions. You discover, to your horror, that you completely misread a question and had, in fact, written foolishness. So you dash back into the exam room, demand to have your answer sheet returned, and request an extra hour to “make some changes”.

This is, in fact, what Justice Minister Delroy Chuck is advocating. And I can see Director of Public Prosecutions Paula Llewellyn with an even broader smile of satisfaction behind him. They want prosecutors to be able to appeal sentences that go against them, thereby getting a ‘second bite of the apple’. This is known in the United States (US) as ‘double jeopardy’.

The framers of the US constitution, however, quite rightly frowned on this idea. The Fifth Amendment states: “... Nor shall any person be subject, for the same offence, to be twice put in jeopardy for life or limb ... .” In Benton v. Maryland 395 US 784 (1969), the court concluded “... that the provision of the 5th Amendment represents a fundamental ideal in our constitutional heritage ...”.

In so doing, Benton expressly overruled Palko v Connecticut 302 US 319 (1937), in which, under a state statute allowing appeal by the State in criminal cases, when permitted by the trial judge, for correction of errors of law, a sentence of life imprisonment, on a conviction of murder in the second degree, was reversed. Upon retrial, the accused was convicted of murder in the first degree and sentenced to death.

I will not, at this time, don my hat as a social scientist to discuss holding culture as the independent variable to explain variations in law. But justice, for the ordinary man, should reflect society’s sense of right and wrong and what ought to be.

In hearing of the Ministry of Justice’s plan, I am reminded of two cases. The persons – quite prominent – were arrested, and the usual howls of shock and disbelief in the media and back patios followed. These matters were in the courts for years as investigators ‘had not completed their investigations’. But the accused persons were required to continue the shameful, painful ritual of coming to court with their lawyers over and over to hear the same story.

Finally, the trial. And it took the juries little time to declare not-guilty verdicts. Both persons died shortly after. Which may have been a blessing as they were penniless – their life savings and loan funds transferred to the pockets of assorted lawyers.

not models of consistency, clarity

But Mr Chuck and Ms Llewellyn would want to have a second go at putting them through this hell again. Hell no! The public is just waking up to the many ways that continued chronic stress can kill you.

Perhaps it is because we are not all learned lawyers, but some decisions in our courts can hardly be characterised as models of consistency and clarity.

We have a habit of arresting and charging, then investigating afterwards. Everyone, including judges, is refusing to admit that this is a wasteful, cruel, costly practice in a country where to be arrested is to be guilty, not to mention the implications for corruption.

The present law not only protects the integrity of final judgments but, more important, protects the accused against the strain and burden of multiple trials.

The State, with all its resources and power, should be more professional and thorough in its operations and not be allowed to make repeated attempts to convict an individual – now broke and broken from the first trial – for an alleged offence, subjecting him to embarrassment, expense, and a continuing state of anxiety and insecurity.

Neither liberty nor justice would survive this decision.

Glenn Tucker is an educator and sociologist. Email feedback to columns@gleanerjm.com and glenntucker2011@gmail.com.