Prosecution deserves right to appeal cases
Published:Saturday | April 19, 2014 | 12:00 AM
THE EDITOR, Sir:
Resident Magistrate Judith Pusey has ruled that former junior minister Kern Spencer and his co-accused Coleen Wright did not have a case to answer in the Cuban light bulb case. This decision has left many - even in legal circles - shocked.
The question being asked by the man in the street is, 'How could a gift of light bulbs, intended to be distributed freely to the people, cost tax-payers in excess of $265 million?'
Director of Public Prosecutions Paula Llewellyn claimed that she was surprised by the decision, and that had she the power so to do, she would appeal the decision.
This again brings into sharp focus her expressed wish for the prosecution to appeal certain decisions. Criminal lawyers find this unthinkable. While defendants can always appeal convictions in trial, prosecutors in Jamaica cannot appeal acquittals.
DOUBLE JEOPARDY
The 5th amendment of the US constitution says, in part, "... Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb". This - known as double jeopardy - seems to be the thinking of those attorneys who challenge the DPP's position.
In many countries, the criminal procedure is subject to a rule that prevents prosecutors from appealing judicial terminations that favour defendants. And what is the history of this rule? The Digest of Justinian suggests that it goes back to Roman times. It states: "... The governor must not allow a man to be charged for the same offence of which he has already been acquitted." Canon law shares the same opinion and the Bible states "there shall not rise up a double affliction".
On the programme 'Impact', the DPP was taken to task by a criminal attorney who took the position that the prosecution has all the necessary tools to make a case against the accused, and that this extra power would only place a greater burden on the courts. But I think he has missed the point. The DPP's concern stems from the fact that the judge could make an error in law, and where this exists, the matter should be revisited.
The extension of the coverage of double jeopardy in prosecutorial appeals first happened in 1904 when the Supreme Court in Kepner v United States (Kepner was a lawyer acquitted of embezzlement. An appeals court reversed the acquittal and found the lawyer guilty) argued that reversing an acquittal amounted to being tried twice for the same crime.
In United States v Morrison, 429 US 1, 3 (1975), we see that the prohibition of appealing acquittals extends to bench trials like the one in question, where the judge, rather than a jury, is the factfinder.
May I bring to the attention of the DPP's detractors the case of Sanabria v United States, 437 US,54 (1978) where the judge acquitted the defendant before a final verdict was rendered and blatantly misinterpreting the relevant statute. The prosecution appealed and the court granted a new trial. The Supreme Court eventually reversed arguing that "there is no exception permitting retrial once the defendant has been acquitted, no matter how egregiously erroneous the legal ruling leading to that judgment might be." Sanabria 437 US 75.
INTELLECTUAL ANANCYISM
May I preface what I am about to say by pointing out that I am not trained in the law. But this is just pure, undiluted, learned, legal bull manure. It is intellectual Anancyism like this that could place the thickest layer of corruption on our corruption-laden country. There is nothing in the DNA of judges that makes them immune to error - or corruption!
Just a few months ago, there was a decision by Judge William H. Pauley that the USA bulk collection of telephony metadata does not violate the Fourth Amendment. This came a week after Judge Richard Leon's decision that it does. The judges reached opposite conclusions on the very same issue. Were they both right? Was one of them right? Or were both wrong?
There should be freedom from bias against the accused. But there should also be freedom from prejudice against his prosecution. This asymmetry twists the criminal procedure towards the interests of defendants. May I suggest, respectfully, that until this is done, the scales of justice cannot be said to be evenly held.
GLENN TUCKER
Stony Hill