Prisoner free after appeal

| 25/08/2010

Cayman Islands News, Grand Cayman Island headline news, Cayman Court of Appeal(CNS): A man who was serving a ten year sentence in Northward HMP, having been convicted on a firearms charge, walked free this morning following his acquittal by the Cayman Islands Court of Appeal. The president Sir John Chadwick (left), apologised to David Whorms over the length of time it had taken for his appeal to be dealt with and told him he was free to go. Although the crown had applied for a retrial when the court handed down its written judgment allowing the appeal on the 2008 conviction for possession of an unlicensed firearm, the court said the prosecution’s case was not strong enough to warrant a retrial and acquitted Whorms. The conviction was overturned based on a misdirection of the trial judge, Justice Williams, to the jury.

The Court of Appeal found that the judge had not explained to the jury clearly enough that another individual, Cary Esteban, who was with Whorms on the night of the arrest and the discovery of the gun, could have also been in possession of the weapon.    
 
“In our view the jury needed to be directed … that before they could be sure the weapon was in the possession of Mr Whorms … they must be satisfied that it was not, in fact, in the possession of Mr Esteban,” the president of the Court of Appeal wrote.
 
During the trial, evidence had pointed to Esteban having some involvement with the weapon that was found in the car occupied by Whorms, Esteban, and a third man, Donald Nixon, by police, after they were pulled over while driving in the Cayman Kai area on the night of New Year’s Day 2008.
 
The loaded .38 calibre Smith & Weston revolver was found by one of the police officers under the passenger seat where Esteban was sitting. Later, a spent .38 shell was found at Esteban’s home and gunshot residue was found on Esteban’s T-shirt following specialist tests.
 
However, charges were dropped against Esteban and were only brought against Whorms, whose DNA was found on the weapon. His defence attorney had argued that the DNA could have made it on to the gun through transference when he was arrested and the gun found, as an expert witness had testified that it was secondary DNA.
 
The appeal court judges said the members of the jury were entitled to reject the notion of transference but they had not been properly directed when it came to dismissing the possibility that on the night of the arrest Whorms may not have been in possession of the gun because someone else was.
 
The judges said the jury should have been directed that, even though Esteban was not on trial, they needed to consider if he could have been in possession of the weapon. Unless they were satisfied he was not, they could not be sure it was Whorms.
 
“If they could not be sure of that they could not convict him,” the Court of Appeal stated. “We are unable to avoid the conclusion that there was a misdirection in this case. That misdirection was, in our view, sufficiently material to render the verdict of the jury unsafe."
 
The original crown counsel in the case was not available when the judgment was delivered, and while a request was made for a retrial by the prosecuting lawyer who was holding, she was unable to offer an argument since she was unfamiliar with the facts of the trial.
 
The Court of Appeal criticized the crown for not being prepared for the possibility of the court allowing the appeal. “Somebody in the Legal Department should have addressed their minds to the possibility that this would be overturned,” the president noted.
 
The court said it did not feel that in the interests of justice a new trial was required as the crown’s case was not strong enough and the appellant had already served 33 months – almost three years — in jail as a result of his period of remand following his arrest and then ongoing delays in hearing the appeal.  
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  1. Anonymous says:

    XXXXXX The incompetence of the justice system did not only affect David when he was sentenced for the 10 yrs; it affected everyone in his life, his wife and 2 young daughters, his family and true friends, and mostly his mother. It is a great thing that the president of the court of appeals had enough intelligence to see where everyone went wrong and set him FREE with an APOLOGY!

    Thank you God for giving David a second chance to be a father to his children and put the past behind him and keep moving forward for better. Amen.

     

     

    • Anonymous says:

      It wasn’t God that aquitted the guy, it was the Judge!!!

       

      God had nothing to do with it!!!!

      • Anonymous says:

        FYI. GOD has everything to do with what goes on in the life of people who believes! The Lord works in misterious ways!  God Bless!!!

  2. Anonymous says:

    You can google "misdirection" but the fact is if the case cannot be re-trialed as it was WEAK

    From the article:

    "The president Sir John Chadwick (left), apologized to David Whorms over the length of time it had taken for his appeal to be dealt with and told him he was free to go. Although the crown had applied for a retrial when the court handed down its written judgment allowing the appeal on the 2008 conviction for possession of an unlicensed firearm, the court said the prosecution’s case was not strong enough to warrant a retrial and acquitted Whorms."

     

    Trying to redirect the true issue will not escape the fact that this is just another case of poor Law Enforcement work product. Whether an innocent man had been put in prison, or a guilty one set free, in both cases it is unacceptable. The people charged with these Islands protection are being made fools by the criminals that are doing these crimes. Mentally the criminals appear more adapt at escaping capture and conviction then the Police are at doing the job they are paid to do. If you put them in a physical confrontation they are in most cases not equipped to deal with armed suspects and Mr. Baines’ policy is to use unarmed men to apprehend armed suspects just like in the case where the Esso was robbed with a shot gun was used against a constable. Mr. Baines redirects the attention to the fact that it was a stolen legal firearm and uses that to set the stage to control further the legal guns. I ask him how many illegal guns have been used in crimes? He implies just as his predecessor Smith did that there are many. HOGWASH! This is just another example on how they are trying to appear that they are doing something and in the meantime are trying to unarm anyone that has a gun. If the gentleman that shot and killed the intruder in his home, not long ago did not have that firearm, he may have been dead or harmed in unthinkable ways. Wait a minute, that was done by a guy that was arrested and set on bail to only commit another crime while he was under the Agencies that are charged to protect us. Another fine example of how great this system is.

     

    If anyone wants to google something, how about google the definations of Police, Law Enforcement and then google EFFECTIVE to see how things should be.

  3. Teka says:

    As the mother of David’s two daughters, I will never be able to express how happy my family is at this moment!! As I read the replies, some touch my heart as others are just really caught up in ingnorance and as a Caymanian it is evident that something’s as well as people will never change.

    David, is an excellent father who has missed many moments in the past 2 years, due to "MISDIRECTION". We are all very grateful to God for allowing Justice to prevail because at the end of the day your thoughts still do not change the fact that there are 2 wonderful children out here that need their father in their lives. Everyone will always have something say but evidence speaks for itself!!

    Congratulations, David, and welcome home!!!!!

  4. Anonymous says:

    Am so very happy this morning that this wonderful young man is FREE!! Anyone that knows David Ashton Whorms knew that he would never be involved with a firearm. From the beginning he has always stated that he was innocent.

    It’s truly sad thathis appeal took so long; he missed out on many things especially many "firsts" with his two beautiful daughters. Am certain that they are overjoyed that their "Daddie" is home with them now. From the day that they were born, you were always a hands on Dad with them; now that justice has finally been served, treasure every minute of being with them.

    Ensure that you become an upstanding citizen in your community. You were one of the few young men that knows the true meaning of being a father. Let your presence in their lives be present always. I never lost faith in you and every time I went to visit you I encouraged you to lean on God for strength and trust him as you knew that he would always answer your prayers. Last Saturday when I saw you and I was leaving I turned and saw you thru the fence and I could hear you as you yelled saying "see you next week" I yelled back saying "YES, I WILL SEE YOU NEXT WEEK"!! When I sat in my vehicle I gave God thanks with tears of joy knowing that you had finally arrived where you needed to be spiritually.  You were now standing on the promises that God made us all.

    Am so proud of you, and am certain that your baby girls are overjoyed to see you and be with you. May God continue to smile on you my darling nephew. No one deserves this more than you do!!!

  5. anonymous says:

    someoneneeds to go on to google and research exactly what is meant by "misdirection". This has absolutely nothing to do with how the prosecution presented its case or the police investigation. it is about issues a judge should have warn the jury to consider or conversely what he should warn them not to consider.

    • Anonymous says:

      Equally why hide behind the judge. It is  evident that a retrial WAS not ordered  because the Crown did not have strong evidence AND WHERE was Crown Counsel  to argue her application for a retrial? She is paid by us !!!! The judge is wrong too.

  6. Anonymous says:

    Here we go again. One of the few convictions that was obtained and it is thrown out.  It has become the norm for prosecutions to pass the smell test so to speak.

     

    The Police are in one breath stating they are doing a great job, arresting criminals, putting them in prison, but yet on the other hand we are being over-ran by crime. In the next breath Mr Baines is saying that his Police Officers cannot add two plus two together to get four. They are mentally unstable and incompetent for the most part. They lack critical thinking skills, cannot read or write properly and if armed are a danger to themselves and others. This is out of his mouth.

     

    People complain that he is being paid a massive salary, cars perks etc. The Commissioner of Police is so to speak the CEO of a 300 man strong plus company and in the real world that job comes with perks and high pay and it should! But he should also perform, and provide the service his "Company" is being paid to provide and HE is not. Instead he pays lip service and entertains thoughts of taking A/C out of the cars, puts a few local faces in key places, has an Inspector tag along on presentations that holds an advanced Degree to qualify the load of bunk that he is selling for the day and has the audacity to say that things are not that bad when you look at the big picture. Then to top it off, is bringing in more of the same UK Officers to work along side and train our local Constables. In the meantime we are being held under siege by the criminals, armed robberies almost daily, criminals have convictions over-turned, etc while this charade keeps going on.

     

    The Government has given loads of money, this one and the previous Governments and for the most part, all of these Commissioners have gotten us is more crime. This one is by far the worse. They are ineffective as a Law Enforcement Agency. Mr. Baines wants a Police Service that shakes hands and is a friend to all, I for one do not need another friend and want someone to stop my next enemy that wants to harm myself or my family.

  7. Anonymous says:

    Not everyone who is convicted of a crime is guilty. My advice to David is to walk the straight and narrow road. STAY away from bad company. You know who you can call your friends. Let this be a lesson learnd the hard way. Take care of your family and yourself. and ask God every day to help you gain back the confidance that people may have lost in you.  Its not gonna be easy, take it one day at a time. I was in the courtroom every day of your trial and i was not convinced that you were guilty. A long standing judical advice is "if there is a doubt you MUST give the accused the benfit of that doubt. The police and legal departments have got to get there sh..together. We want the guil;ty ones behind bars not the innocent. Stay on the right path David.. Maybe Mr. Baines should hire an in-house consel to review his cases before they are submitted  to the legal department for review and prosection.

  8. Anonymous says:

    A lot more are in there for things they haven’t done!!! XXXXXX  Police always looking ‘scapegoats’ to pacify the public!!

  9. Anonymous says:

    Sends out a good signal to the other gun toters and would be thugs. XXXXXXX Of course what could the judge do if Frick and Frack prosecutors couldn’t build a case. What happened to posession is 9/10 of the law? or did they find it under a rock in his grandma’s back yard?

    • Anonymous says:

      Not the judges’ fault. They are safeguarding us all from faulty imprisonment. The problem is we have a completely lousy police service and a worse prosecutorial service (the Legal Dept that the judge criticises).

    • Anonymous says:

      What happen to "innocent until proven guilty" "if the glove dont fit you can’t convict". It seem to me that they jailed the wrong man.

      This guy was not a "thug" as you say, he was a victim of circomestance I would say. He was taken away from two beautiful girls for almost 3 years. lets hear what you would say if this happened to your father when you was young.

  10. mark says:

    Just another case of Cayman justice at work, incompetence in the first trial resulting in a waste of money and time.

    • Anonymous says:

       

      The Governmemt really need to do something with the police department. How many more do we need to read about before they take these things serious?

      This is why the crime is getting worst, they arest the wrong people and alow the real criminals to walk free and continue doing there things.