Sat | Jan 23, 2021

Full Text | ODPP to seek disciplinary action against Buchanan over ‘reckless’ accusations in Kartel case

Published:Thursday | November 26, 2020 | 3:56 PM
Director of Public Prosecutions, Paula Llewellyn - File photo.

The Office of the Director of Public Prosecutions (ODPP) is to bring an action at the General Legal Council against Isat Buchanan, one of the attorneys representing murder convict Adidja ‘Vybz Kartel’ Palmer, on allegations of misconduct and breaches the canons of professional ethics.

The ODPP has slammed Buchanan over accusations that it has failed to give the defence team access to cell phones seized as evidence in the case as they prepare to take their matter to the Privy Council to challenge his conviction and sentence. 

In its rebuttal, the Paula Llewellyn-led office argued that Buchanan, “driven by youthful exuberance”, has mischaracterised events and has accused him of engaging in “scurrilous”, “irresponsibly”, “outrageous”, and “reckless” behaviour.

Attorney-at-law Isat Buchanan: “Detention, for me, is the most egregious act or the most egregious punishment that can be meted out on a human being.”
In Photo: Attorney Isat Buchanan

In a statement this afternoon, the ODPP said it is of the view that his conduct goes against the canons and as such it will take its grouses to the council for it to take disciplinary action.

Full Statement

The Office of the Director of Public Prosecutions (ODPP) has been made aware of a recent publication in the LOOP Jamaica media outlet on the 23rd day of November 2020 entitled “Vybz Kartel’s lawyers move to gain access to entertainer’s phone”, where allegations were made against the ODPP by Mr Isat Buchanan, Attorney-at-Law, in respect of the cell phone, an exhibit in the trial of Mr Adidja Palmer for the offence of murder. The matter is now on appeal to the Judicial Committee of the Privy Council.

Allegations

1. In the abovementioned article circulated by Loop Jamaica, Mr Buchanan is quoted as saying:-

"The DPP is being very dodgy and shady, and very deliberate in their action to continue to violate the constitutional rights of Adidja Palmer. Despite the attempts of myself and the Queen's Counsel, we have been unable to get access to the cell phone, which we believe has evidence of tampering,"

2. In the same article, he goes further to accuse the ODPP of being the “authors of delay”

ODPP’s response

3. In this article, Mr. Buchanan made scurrilous accusations which were published by Loop Jamaica without any input or response from the ODPP on the issue at caption.

4. Language is the tool of Attorneys and if the reportage is correct, it would appear that Mr. Buchanan had chosen these particular words in a deliberate way. We find this state of affairs absolutely shocking and we will demonstrate that Mr Buchanan would have been in a position to know that these allegations have no basis in fact. 

5. The words “dodgy” and “shady” are usually used to describe the behaviour of persons of a dishonest character or dysfunctional moral compass which is commonly found in thieves, fraudsters, and conmen. It goes without saying that this sort of behaviour would be highly unbecoming of any attorney-at-law. Of course, if such a person were convicted, that person could never qualify to be employed as a prosecuting attorney in the public service.

6. The only inference that can be drawn from the words of Mr. Buchanan, as reported, is that the Director of Public Prosecutions, who is enabled by the Constitution of Jamaica, and her 57 prosecuting attorneys who are her agents have acted dishonestly, illegally, criminally and unprofessionally in the issue of the access by the defence to Mr. Palmer’s phone. He is further quoted in the article as asserting that “the Office of the Director of Public Prosecutions is deliberately violating the constitutional rights of Adidja Palmer.”, an allegation which is even more outrageous.

7. It is of note that this is not the first time that this unfounded allegation has been made by Adidja Palmer’s legal representatives. It is a matter of record that in the appeal against conviction and sentence, it was raised that the ODPP had abused its powers in relation to Adidja Palmer. The Court of Appeal dismissed that ground indicating that it had no merit. 

8. In the leave application to the Judicial Committee of the Privy Council, heard by the Court of Appeal, Mr. Buchanan raised this issue once again and this ground also failed before the Court of Appeal.

9. It would appear that, driven by youthful exuberance intertwined with severe disappointment, these grounds have failed. Mr. Buchanan has irresponsibly and recklessly sought to raise this ground in the court of public opinion facilitated by the media entity Loop Jamaica. Disappointingly and inexplicably, Loop Jamaica published this story without requiring Mr. Buchanan to furnish any evidentiary particulars in relation to these allegations thereby ignoring journalistic ethical standards and also natural justice and fairness. At no time was the ODPP exposed to these comments prior to its publishing or given an opportunity to respond on or off the record.

Exchange of Emails between ODPP and English Queen’s Counsel for the Defence 

10. The ODPP prides itself on maintaining high ethical standards and now provides the following facts in the public interest:

i. That the ODPP in dialogue with the English Queen’s Counsel representing Mr. Palmer at the Privy Council had agreed that we were not in opposition to the defence having access to the phones. Mr Buchanan would know this fact as he had been copied into all the discussions in the exchange of emails between our Office and English Queen’s Counsel.

ii. That before the COVID-19 outbreak entered into its second wave, it was agreed that the defence’s expert would come to Jamaica and examine the phones in the presence of our expert. Again, Mr. Buchanan would know this fact as he had been copied into the exchange of emails between our Office and English Queen’s Counsel.

iii. That English Queen’s Counsel representing Mr. Palmer at the Privy Council had written in respect of the availability of his technical expert that:-

“For COVID reasons he has declined to travel to Jamaica so before we formally instruct him we would like to canvas with you whether the exhibit – the Blackberry 9800 ( with SD Card) and JS/2 could be sent to him as an independent expert to be examined.” English Queen’s Counsel also forwarded an email from his technical expert who suggested the following:- 

“Have them send it directly to me as an independent expert. I shall maintain the chain of custody, make the appropriate examination, and render an objective report.

The Prosecution can send me the evidence by secured FedEx. Or we can transfer custody in person from their courier at Philadelphia International Airport (Change planes in Miami.).”

Mr Buchanan knows this as he had been copied into the exchange of emails between our Office and English Queen’s Counsel. 

iv. Our response to English Queen’s Counsel was as follows:- “We have considered the plan you have put forward to us and we are not comfortable with the exhibits leaving Jamaica. It is hoped that there will be some window of opportunity that will open that will allow your expert to come to Jamaica to test the items while being observed by our expert.” 

11. Having agreed that we would have had no objection to access to Mr. Palmer’s phones being given to the defence under certain conditions for the purposes of their preparation for the Privy Council hearing, the issue was how this was to be accomplished given the challenges brought on by the COVID-19 pandemic. 

Custody of the Exhibit (Phones)

12. The contextual background is that the phones in question are exhibits and therefore in the custody of the Registrar of the Supreme Court. The Court is obliged to keep and protect the integrity of these exhibits until all the appellate processes have been exhausted. There is no principle of law – common law, Constitutional or Statute – that empowers the Office of the Director of Public Prosecutions to hand over items which are in the custody and possession of the Supreme Court to anyone who requests access to them.

13. Our discussion with English Queen’s Counsel was an extension of professional courtesies indicating what our stance would be on enquiry from the Registrar. Before the trial, the onus would have been on the prosecution given our duty of disclosure to make the items available to the defence. After the items have been admitted into evidence and become exhibits they then leave the possession of the Prosecution and fall within the custody of the Court. Therefore in order to gain access to those exhibits, the onus would be on the defence to approach the court for orders. The exchange of emails would have made the defence aware prior to approaching the Registrar of what our stance would have been in relation to gaining access to those exhibits. The ODPP had assumed that this was the path that would have been followed and certainly, Mr. Buchanan would have advised Queen’s Counsel in England. There would be nothing precluding the defence in taking steps to move the Registrar or a Judge, after hearing submissions from the defence and prosecution, in respect to the release of the stated exhibits under certain conditions.

14. We reiterate that at the present time the prosecution, that is neither the ODPP nor Police, have custody of these exhibits. To date, no court documents have been served on the ODPP nor have we received any correspondence indicating that the defence including Mr. Buchanan has approached the court for the release of those exhibits. It is not the ODPP who have been the “authors of delay.”

Possible breach of the Canons of Professional Ethics

15. In light of the facts as outlined, we deem the mischaracterisation of the ODPP by Mr Buchanan of us being dodgy, shady, and breaching Mr. Palmer’s constitutional rights as being reckless, dangerous and a possible violation of the Canons of the Legal Profession (Canons of Professional Ethics) Rules. Canon I (b) of the Legal Profession (Canons of Professional Ethics) Rules (hereafter the Canons) states: An Attorney shall at all times maintain the honour and dignity of the profession and shall, abstain from behaviour which may tend to discredit the profession of which he is a member.

16. These mischaracterisations are not only possibly defamatory but have the effect of bringing the ODPP into disrepute as well as putting the security of our staff at risk. As prosecutors, we are bound to operate at a very high ethical standard. We are professionals and have no vested interest in the outcome of any case but we are obliged to use our experience, knowledge of the law and skill to put forward the best available evidence in proof of our case at trial. If there is a conviction, we use those same positive attributes to defend that conviction, where appropriate, as a matter of law in the Court of Appeal. In any given year, prosecutors in the ODPP and also in the Parish Court conduct hundreds of prosecutions island-wide with more than half of them resulting in convictions. It is unacceptable that because the prosecution has succeeded in its case, a disappointed defence attorney by the use of falsehoods should seek to mislead the media and the public through misrepresentation and mischaracterisation hoping to damage the reputation of the messenger/prosecutor.

Canon V(o) states:- An Attorney shall not knowingly make a false statement of law or fact. And while there is no express Canon which prescribes and forbids Attorneys from making insulting, demeaning ad hominem attacks on fellow counsel’s character and integrity, Mr Buchanan, Attorney – at –Law, should be made aware that Canon VIII (a) (b) states:- Nothing herein contained shall be construed as derogating from any existing rules of professional conduct and duties of an Attorney which are in keeping with the traditions of the legal profession, although not specifically mentioned herein.

Where in any particular matter explicit ethical guidance does not exist, an Attorney shall determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.

17. At no time has the ODPP acted in a “dodgy” or “shady” way nor has the ODPP contravened the constitutional rights of Mr Palmer. On the contrary, at all times, the prosecutors of the ODPP have acted, at every stage of the Adidja Palmer case, within the highest traditions of the Bar and the parameters outlined in our Code of Professional Conduct.

18. The allegations of Mr Buchanan as quoted and published in Loop Jamaica is an unfortunate attempt to impugn our character and integrity in the public domain which would be inimical to the administration of justice given the core function of this high public office which operates under the Constitution.

19. Having considered and caucused with members of my senior staff, it has been decided to take our concerns to the relevant fora which concern and regulate the conduct of attorneys. 

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