Mon | Jan 20, 2020

Orville Taylor | Miller time: Justice on trial

Published:Sunday | December 8, 2019 | 12:33 AM

Whatever was the verdict, justice has been served. Defence attorney Bert Samuels is one of the brightest persons who I know. When he defended Shorty more than 36 years ago, when everyone and his dogs thought that he was guilty, the whole country recognised that he knew the practice of law like the back of his hand.

Two weeks ago, his client, reputed leader of the Clansman gang Tesha Miller, was found guilty of being an accessory to murder. The offence for which he was charged was a brazen killing of a public employee and thus, an attack on the State.

A week before, two self-confessed members of the gang pleaded guilty to the gruesome killing of two women, beheading them like chickens or other domestic livestock. Here, there is no debate as to the culpability of the killers, because they admitted it. However, had they gone to trial, it would have been a coin toss – head you win, tail I lose.

Of course, as any good attorney should, Samuels has given notice of appeal. He is an expert in the law; therefore, he would know whether there is any basis in law for such action. Let me make it clear, whatever the outcome and however far he takes this matter, I will be satisfied that justice is done, because this is the system to which we all subscribe.

In this wonderful democracy, we are free to ‘try any case in the court of public opinion’. Our laws and Constitution give us the right to say that we believe that a person is guilty or innocent after a trial, despite the judgment.

In the past, we have seen some very strange jury verdicts. In one case, where there was seminal fluid with the accused’s DNA found on the underage victim, most logical Jamaicans expected a guilty verdict. However, in the coin toss, the jury sucked in its conscience and gave him head, when the tail was the only reasonable conclusion.

Another high-profile case saw a defendant walk free, despite the expert testimony of pathologists trained by The University of the West Indies, the number one Anglophone Caribbean university, now ranked, under the leadership of the current vice-chancellor, within the top four per cent of universities globally.

Of course, both these cases are outliers, because most times, the jury, in cases of homicide in Jamaica, convict those prosecuted by the director of public prosecutions. True, you can’t win them all.

OPPOSED TO JURY TRIALS

Indeed, intrinsic in any fair system of justice must be that neither the prosecutor nor defence counsel has a guarantee of any particular outcome at the end of any trial. That is democracy at its best; and any variation from this introduces ‘extra-judicial’ elements into the system.

Nonetheless, my well-known and unwavering position is that I am opposed to jury trials. Not simply because I am aware of cases where jurists have confessed off the record that, “him look too nice fi sen’ go prison!” thus, making a tough hard-working male homicide cop cry. Rather, because despite the argument that juries are asked to adjudicate on the ‘facts’ and not the law, the subtlety of legal facts as opposed to scientific facts is easily lost on non-legally trained minds.

It is sheer disingenuity that Parliament, with all its brilliant legal minds, will not trust a jury to determine if there was malice, a firearm or the shooter wilfully shot with intent to harm the victim, who miraculously survived the three gunshot wounds. Yet, in the identical scenario, if the victim dies, the case is then sent to a set of amateurs to determine the fate of the accused. This inconsistency supports the angst I feel when juries come into play. Lawyers can chat all they want, those of us who study, modify and ‘control’ human behaviour know that there are myriad techniques to make people see truth where lies lie and lies where truths do.

One might be interested to know that in countries where there are no jury trials for capital offences, there seems to be lower homicide rates. At least, this is the case for ‘developed’ countries, like the Netherlands and Japan, which do not have the challenges of poorly paid judges, prosecutors, and police officers. More research in a later column will interrogate this.

Nonetheless, in spite of the Transparency International survey revealing that only six per cent of Jamaicans have ever bribed judges, which is significantly lower than many other democracies which scrutinise us, there is some basis for caution regarding the recommendation that we should dispense with jury trials and go for bench judgments, where only high court judges determine capital cases.

‘GRUDGEMENT’

In my head, a stinging warning by a senior counsel to debutant attorneys, many years ago, is still echoing. He cautioned then that in the field ‘people have long memories’. This scared me to the point of incontinence as I fought repeatedly and unsuccessfully to keep my mouth shut. The implication was that someone would be carrying malice from an earlier encounter and then later come face to face in ‘grudgement’ and thus victimise the attorney, her client or somehow subvert the entire process.

It is also not lost on me that from cursory observation, the majority of judges are former prosecutors. And yes, there is an unspoken overrepresentation of women in the judiciary. Any social scientist, but especially sociologists, anthropologists, and psychologists, understand without any doubt whatsoever that these structural biases easily creep into the conduct of individuals. In fact, feminist research unambiguously points to the social pathologies in some countries where the judiciary is male-dominated. Thus, the reverse must hold true.

Still, this is the nature of the beast; for the time being, Miller is a convict. However, although the police and my media colleagues believe him to be, no court has yet linked him to the Clansmen.

Literally, the jury is out but justice is still on trial.

- Dr Orville Taylor is head of the Department of Sociology at the UWI, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.