Uncomfortable with jury reduction
THE ANNOUNCEMENT by Justice Minister Mark Golding last week that the Government is moving to reduce the number of jurors needed for non-capital murder has hit like a truck.
As part of a comprehensive response to questions posed by Opposition Senator Robert Montague, Golding said last Friday that the Government intends to reduce the number of jurors in non-capital murder cases from 12 to seven.
This reduction is due in part to the fact that many trials, especially murder, involving multiple defendants, are delayed as a result of difficulties with sourcing jurors to empanel a jury. So, in order to cure the mischief, the Government is reducing the number of persons to decide the innocence or guilt of a subject. While it maybe expedient, that aspect of justice reform is something I have great difficulty supporting. It just smells to me like another attempt to make it easier to convict persons who are before the court and whose liberty is on the line.
For those who do not already know, I am in full support of trial by jury, and I am more and more worried that we are moving to a state where we abolish the jury system.
Murder is a most serious offence and an accused should be entitled to having 12 persons, blessed with common sense, healthy scepticism, and good reasoning ability to decide their fate.
At present, in murder matters, the prosecution and defence are entitled to reject seven persons without showing cause in a jury pool. Golding has said that this too will be reduced, but he has not said to what extent. One suspects, however, that the decision will be to have it being uniformed with other jury matters where there are five challenges each where seven jurors are being empanelled.
I will not pretend that the issue cited by Golding is not real. In fact, attorneys-at-law at both the defence and prosecution bar may quietly admit that they use objections without cause (peremptory challenges) as a reason to delay the start of a trial if they are not ready. Thus, in the case where there are four murder accused, 28 jurors may be rejected by the defence and 28 by the prosecution, simply because the lawyers don't get a good vibe about them.
So Golding's problems are real. But the way to cure that cannot be to lower the bar. If the proposal goes forward and becomes law, it will require only five persons to decide whether a person is innocent or guilty. This is coming from a situation where only a few years ago it needed all 12 jurors for a conviction or an acquittal. And then we decided that the unanimous verdict was not expedient enough, we needed to move to majority verdicts. It now requires a majority verdict as low as nine-three to determine the guilt or innocence of an individual.
It would be interesting if the Office of the Director of Public Prosecutions or the chief justice could do a study looking at what impact, if any, the embrace of majority verdicts have had on pulling the clog from the court system.
Amending Jury Act
Until this is done, Golding, perhaps, could hold off on lowering the bar. Instead, he should focus his attention on getting the Jury Act amended to allow for jury lists to be compiled and sent electronically. Believe it or not, despite the Jury Act being amended in 2009 to allow for persons who hold Taxpayer Registration Number (TRN) to be called for jury duty, the State has only been using the voters' list because it cannot find $29 million to print a master list of both the TRN and voters' list to allow a random selection of jurors to be summoned.
The minister should also move quickly to have the Jury Act amended to remove that non-sensical clause which exempts some 112,000 public servants from jury duty; and to put in train the provision for the accused and the prosecution to agree to a trial by judge alone in a case troubled by jurors.
That said, however, Golding appears to have his finger on the pulse of activities within his ministry and appears to be the right man for the job at the right time.
One of the many positives coming out of his answers to Montague's questions is the willingness to rid the courts of old cases and to finally respect the constitutional rights of Jamaicans to trial within a reasonable time.
Golding said the Government is to introduce a statutory solution, which when the law is passed, will see cases before the Resident Magistrate's Court that are not tried within two years being dismissed.
He disclosed that his ministry has been contemplating the use of the clear house system, beginning with summary offences in the Resident Magistrate's Court, which would see the introduction "of a time frame within which they must be tried or else they are dismissed".
This is a step in the right direction. For too long, poor Jamaicans have been dragged from their homes, taken to court and left to linger there for years before their matters are completed. Golding should not stop at the Resident Magistrate's Court; this policy should go all the way to the Supreme Court where it is taking years to have cases tried.
The minister, however, should be mindful that this system is open to abuse and corruption, thus it will need to have built into it, the necessary protection to ensure that cases are not intentionally frustrated out of the system.