Bert Samuels, GUEST COLUMNIST
Following on a most unfortunate rejection of a majority verdict, which ought to have been accepted by the learned trial judge - in the recent 12-week trial of three police officers - a disappointed director of public prosecutions (DPP) has sought to launch an attack on those of us who practise at the defence Bar from time to time. It seems judicial error has been, and will continue to be, part of the reality of our system of justice.
In April 1993, I launched a protest about an unfortunate outburst from a career prosecutor in the presence and hearing of the jury during the trial - that my client, Corporal Fredrick Lawrence, had "planted a gun on the deceased" - but a senior judge refused my application to discharge the jury. There was, of course, absolutely no evidence of the planting of a gun by the officer in the trial.
This error on the part of the senior judge was not corrected until the matter was heard by the Privy Council some 10 years later! The police officer served 10 years in prison before he was released by the Privy Council's overturning of the conviction. By then, the statute of limitation prevented him from being compensated in a civil action. An innocent man spent a great part of his life in custody as a result of judicial error.
Before now, I have refrained from going public in chastising the judge, the prosecutor or, for that matter, the state of the law for this grave error at the expense of 10 years of my client's liberty.
Recently, I was appalled to hear the DPP opining that defence lawyers make their money from "getting off their clients". This clearly implies that we do whatever it takes to get our clients' names cleared, solely for the reward of material gain. This most unfortunate comment cannot go unchallenged. Most defence lawyers have, in addition to defending, also prosecuted matters before the court, and/or represented complainants who are themselves, often the victims of crimes.
PROSECUTION VS DEFENCE LAWYERS
On the other hand, prosecutors, with a few exceptions, having qualified as attorneys, plunge themselves into the hard work of clerks of the courts, and thereafter, prosecutors at the DPP's office. The point I make is that most of them have never defended one day in their lives. Prosecutors, in general, therefore, cannot reliably speak to how defence lawyers 'make their money'.
What I have detected over the years is a sinister attempt to make out the work of the defence as other than noble and above board. When the all-powerful State takes the citizen to court, his liberty rests in the capable (or otherwise) hands of the lawyer who has conduct of his defence.
This was the task my chambers assumed when, in 2007, we took on the defence of Winston Hamilton. He was charged for the rape of a policeman's girlfriend. He was pointed out in an identification parade by the victim. Upon him being arrested, he voluntarily gave his underwear to the police. Body fluids were extracted from the clothing. The rapist used a condom, and had left it at the crime scene. It was immediately retrieved by the victim's boyfriend and contained a pure sample of the rapist's sperm.
This sample was compared with our client's body fluid by a government analyst to whom the police took it for testing. He was fully excluded by DNA comparison. Regardless, in the face of this scientific exclusion of Hamilton, the prosecution continued. We wrote to the DPP prior to trial, pointing out the injustice in putting a man on trial where DNA unambiguously proved his innocence.
Still, he was made to face the expense and peril any criminal trial heaps on a defendant. He was acquitted without the defence being called, after the prosecution's DNA expert testified.
TRAVESTY NOT ISOLATED
This travesty of justice is not an isolated case. Rory Reid, who was alleged to have fired at the police in 2007, was apprehended seconds after he allegedly fired at them. His hands were swabbed three hours after he was handcuffed at the Grants Pen Police Station. The swab results showed that he had no elevated gunpowder residue on his hands. He was, therefore, scientifically excluded. This information was disclosed long before trial.
The DPP elected, nonetheless, to put Mr Reid on trial. He was acquitted without being called on to state his defence. In both the Hamilton and Reid cases, the DPP was in possession of evidence that unequivocally attested to the innocence of these two citizens, but failed to terminate the prosecution.
During the course of the trial of Patrick Nelson, the doctor from Kingston Public Hospital was called to testify to the loss of the complainant's left eye, which was allegedly shot out in 2009 by a 45-year-old man with whom she grew up, and who lived in her community as her neighbour.
During cross-examination of the doctor, I applied to review her medical notes. This was strenuously resisted by the prosecutor. The law prevailed, and I was able to read the notes. My deep suspicion of a cover-up was confirmed as, in the notes, it was recorded by the said doctor on admission to the hospital that the complainant told her that she was shot "by an unknown assailant". The resistance of the prosecutor against us seeing the notes, gone unchallenged by the defence, would have resulted in a travesty of justice.
How committed are some prosecutors to the well-settled principle that says, where a prosecutor has evidence which points to the innocence of the accused, she has a duty, in the highest traditions of the Bar, to disclose it and revisit her intention to proceed with the trial, along the principles of fairness?
The duty of prosecuting counsel is not to obtain a conviction at any cost. It excludes any notion of 'winning' or 'losing'. Unlike the defence, her function is a matter of public duty which is, of necessity, charged with great personal responsibility. These principles were settled as long ago as 1865, the year of the Morant Bay Rebellion in the English case of Paddock.
It is the failure of many prosecutors to understand their public function in the administration of justice, in my humble opinion, that has caused them to find difficulty in appreciating the role of the defence.
Bert S. Samuels is an attorney-at-law. Email feedback to firstname.lastname@example.org and email@example.com.