This week’s featured overall development as Newsmaker of the Week is the range of perspectives on the keenly watched court battle between the prosecution and defence relative to whether dancehall entertainer Vybz Kartel and his three co-appellants will face a new trial for the 2011 murder of Clive ‘Lizard’ Williams.
The matter has been extended for a sixth day on Tuesday, June 18 for closing arguments in the Court of Appeal.
Vybz Kartel, whose real name is Adidja Palmer, along with Andre St John, Kahira Jones and Shawn ‘Shawn Storm’ Campbell, were charged with the murder of Clive ‘Lizard’ Williams in 2011 and convicted in 2014.
Entertainer Vybz Kartel
However, they had their convictions quashed on a technicality by the United Kingdom Privy Council in March this year, and the matter was sent back to the Court of Appeal for it to decide whether they should be retried.
For four of the five days in the ongoing hearing, the defence and the prosecution made their submissions, with the former largely arguing that a fair trial is not possible, given that the evidence has been publicised for years and the high publicity of the case, among other reasons.
However, the prosecution has countered those arguments, arguing that a fair trial is possible, and an unbiased set of jurors can be found to hear the case, should it be retried.
Over the course of the proceedings, one of the panel of three appellate judges, Justice Marva McDonald-Bishop, questioned both sides, seeking clarification on various points, such as the availability of all witnesses and the breaches to the men’s right of having a trial within a reasonable time.
The panel also comprised Justices Paulette Williams and David Fraser.
The defence was first to get its submissions under way on Tuesday, and those arguments were concluded by Wednesday afternoon.
The defence team argued over a two-day span that a retrial would be a breach of the constitutional rights of the men, among other things.
As it relates to Vybz Kartel, attorney Isat Buchanan submitted reports that spoke to the failing health and mental condition of his client, while arguing that to put his client through a retrial would only serve to further damage his health.
Buchanan said an expert is set to give evidence that the technology evidence on which the prosecution is relying has been tampered with, which led to a brief exchange with McDonald-Bishop. Buchanan, in raising the point, sought to show the weakness of the prosecution’s case.
But the judge said even if the technology evidence is not in the picture, the prosecution could still rely on its eyewitness.
However, Buchanan shot back that the eyewitness was not reliable, and argued that he had been inconsistent in his evidence, and with the technology evidence provided by the Crown.
He stated also, that the witness had denied writing a statement, and also pointed to the death of the prosecution’s handwriting expert.
The attorney argued that there are deficiencies in the prosecution’s case, and that it is not in the interest of justice to order a retrial because this would give the prosecution an opportunity to fix those deficiencies.
He said this is tantamount to giving the prosecution a “second bite of the cherry”.
Buchanan also argued that the men’s rights were breached by the way the Crown obtained its evidence, which also led to a brief exchange with McDonald-Bishop, who reminded that illegally obtained evidence can be admissible, based on its probative value.
Outlining grounds other than Kartel’s poor mental and physical health — a heart that is functioning at 50 per cent and autoimmune illness Graves’ Disease — Buchanan said his client is in a financial bind with family responsibilities that are made worse by the fact that he is unable to work.
He said a retrial would further damage his client physically, financially and mentally. He added that his client is further burdened by the fact that he had to bear his own cost for the appeal going to the Privy Council level.
The argument was also made that the men would not receive a fair trial, due to the reported issue of jury corruption, for which they were said to have been not responsible.
He said the ordering of a new trial would be difficult for the men, as the trial would take a long time before it gets off the ground, and be lengthy, due to its complex nature and the number of witnesses involved.
Attorney for appellant Kahira Jones, Iqbal Cheverria, cited a report on the mental condition of his client as he sought to bolster arguments for the court to deny the Crown the opportunity of a retrial.
Cheverria also cited the $70 million debt his client incurred as a result of the first trial, the poor condition in which he’s being held, the prosecution’s weak forensic evidence among reasons to deny a retrial.
Attorney Alessandra LaBeach, who also appeared for Kartel and Shawn ‘Shawn Storm’ Campbell, argued to the panel of three judges that the evidence against Campbell was weak. In light of that perspective, she said it would be unfair for him to be retried.
She said her client was merely in a taxi with the men and was not transporting them as was alleged by the prosecution.
The prosecution responded to the arguments of the defence on Thursday and Friday.
The Crown submitted on Thursday, in particular, that the rights of entertainer Vybz Kartel and his co-appellants would not be breached should the Court of Appeal order that they undergo a fresh trial for the 2011 murder.
Leading that charge for the Crown’s request for a retrial was Acting Director of Public Prosecutions (DPP) Claudette Thompson.
The argument was also made that the men would be able to get a fair trial, notwithstanding the publicity surrounding the jury corruption scandal from the first trial.
It was further argued that they would not be prejudiced by voice notes and images from the trial that have been leaked to the public.
Thompson said the state, too, had incurred cost, and argued that the Crown will continue to pursue justice, this despite the cost.
This point led to questions from McDonald-Bishop, who noted that the court would have to consider the possible expense to the state as it decides whether or not to grant a retrial.
During the exchange, Thompson said that the state would “just have” to bear the cost, while also stating that she does not know that “we can attribute” any cost to the administration of justice.
She said pursuing justice in the case of murder in general, but specifically in the Vybz Kartel case, is worth the spend because of the nature of the murder in the case at hand — that Williams was killed over an illegal gun, the disposal of the body, and the attempt made to destroy by fire the house in Havendale, St Andrew in which the killing occurred.
Attorneys for the appellants cited hardship to the men as a result of the trial, incarceration and 10-year wait for the appeal process to be completed. But Thompson submitted that hardship on the part of the victim’s family should also be considered.
On the issue of the length of time the men may have to wait for a retrial, the acting DPP said that they will not have to wait beyond 2025.
Thompson cited an affidavit by colleague Jeremy Tylor, KC, which states that most of the witnesses are available to testify, should the court order a new trial.
Thompson cited the strength of the Crown’s case against the men, and said the prosecution has strong circumstantial evidence against all the accused men.
In countering the appellants’ claims that the delay in the appeal was a breach of the men’s rights, Thompson said the prosecution does not find the lapse in time oppressive. She outlined reasons for the lengthy appeal process, which she said was demonstrably justifiable.
During their submissions to the court, the appellants’ attorneys argued that post-trial publicity of the issue of jury corruption, which the men were said to have not been involved in, and the wide publication of voice notes and images leaked after the trial, would prevent the men from getting a fair trial.
However, this argument was countered by Janek Forbes of the Office of the DPP, who said the matter of prejudice as claimed has not reached the standard as outlined in the referenced case of Grant v the DPP.
Forbes submitted that the usual safeguard of reminding jurors of their oaths at regular intervals could be applied.
However, McDonald-Bishop said that does not seem to be sufficient while referring to the juror corruption issue.
On Friday, prosecutors argued that the court can institute “remedies”, should there be a likely breach to the men having a trial in a reasonable time.
According to prosecutor Lorian Tugwell, the remedy to such breaches include an order for an expedited hearing; the men being granted bail; and the provision of legal aid representation to those who are unable to afford attorneys due to the length of the proceedings.
“I conclude by saying that the appellants’ rights to trial within a reasonable time and to bail were breached, and we say, despite the breach, there is nothing to suggest a fair trial is impossible, contrary to what has been suggested,” Tugwell told the Appeal Court judges.
Social media users are watching the developments, with the views split on whether a retrial should be granted or not.
“I am tired of this long drawn out thing. Mere formalities! If you a guh try back the case, just say so and let di Teacha (Vybz Kartel) condition his mind to that and get the trial going again, ’cause this a draw out too much now,” a woman wrote on Facebook.
“So dem a talk about breach like anuh 13 years the man dem in custody fah and can’t get back the time. Justice system mek me feel shame, a tell yuh man,” a male Facebook user wrote.
“From a man charged with murder, he must answer to the allegations. He must be retried, and a don’t want no Gaza fans attack me. My opinion that!” a woman asserted.
Wrote a man: “The case should be tried on its merits, and the men should not get off on any technicalities, full stop!”
A woman questioned: “What about the family of the deceased person? Shouldn’t they have a say too in the matter? Haven’t they suffered and need justice?”
Meanwhile, a man said that the prosecution should be fair, and realise that the accused men have served some of their original prison sentences, which have since been quashed.
“How can Kartel get back over 10 years of his life that done gone already? He can’t! So how you ago stand there and say retrial, retrial, retrial and burden taxpayers now? Madness this!” he opined.
Another man on Facebook had a different viewpoint on the matter.
“From the witnesses available, let the matter be tried later this year, because this is priority,” he stated.
On Instagram, a woman called for Kartel and the others to be freed, as, in her opinion, the prosecution’s case is not sensible.
“The men have served time in prison that they can’t get back, and you cannot do the decent thing and concede?… It is rough for Kartel, a tell you, no joke about it,” the woman wrote.
A man stated that, “Justice must prevail, and a retrial must be held because the prosecution said witnesses available and evidence (is) there. No acquittal! It will send the wrong signal.”
