Sleepwalking past the jury

| 22/07/2010

It was only a few months ago that a local defence attorney warned that Cayman was sleepwalking into legislation which was slowly eroding the people’s civil liberties. He was speaking after his client faced being tried a second time for murder following his acquittal the first time by a judge. This double jeopardy situation is as a result of changes to the Criminal Justice bill that enables the crown to appeal not just against a sentence but against a verdict.

This legislative change was followed only a few months later by the Witness Anonymity bill. Although ‘paved with good intentions’ to protect victims and witnesses, who in some cases fear very serious repercussions, it also raised questions about a defendant’s right to a fair trial and their right to confront their accusers.

Now this month we have learned that government is currently considering removing the right to trial by jury for all firearms cases. This does not just mean the gang-bangers which the country’s law enforcement and prosecution services are having such trouble convicting, it means all firearms related cases.

When I first sat down to write this opinion piece I had intended to use the hypothetical example of a woman who finally shoots her husband with his own gun after years of abuse as an incident where the law would apply and obviously raise concerns.

In such circumstances, the wife may have planned and plotted the killing of her abuser and may even have committed the act when her husband’s back was turned or while he lay sleeping, but many would still consider the killing an act of self defence. However, the law would state otherwise.

Such a case before a jury may well bring a not guilty verdict, something many would consider a just outcome, as jurors also consider the human element and motivation for a crime. Before a judge, however, the same woman could expect to go to prison for life as he would likely be forced to interpret the letter of the law.

In wake of the news of the early morning shooting in George Town today (22 July) we have another example where most would agree a jury trial, if there is a trial, would be essential.

Although the details of this case remain sketchy as the police are still investigating, it is evident that a burglar is now dead as a result of a gunshot wound he received from a licensed firearm holder and the owner of the property he appears to have been attempting to steal from. The homeowner has not yet been arrested, we hear, and he may never be but it is possible he will face some form of charge for an offence relating to the firearm. If this law passes before he comes to trial he will be denied the right to a jury, something that I am certain the vast majority of people here would see as fundamentally wrong.

The problem we have with this piece of proposed legislation is that it is being floated as a way to address the inability of the police, and in turn the crown, to secure convictions in cases of serious crime.

This failure in high profile cases is motivating the authorities to change the law rather than change their methods of policing and prosecuting. We all want to see those who are gunning each other down on the streets and engaging in gang violence behind bars but we should be asking ourselves if we want that at the cost of everyone’s civil liberties and fundamental rights.

If a community does not care about rights and liberties then it is easy to dramatically reduce crime. Laws can be passed to introduce a curfew, for example, that states no one is allowed on the streets after dark and the police will shoot on sight anyone who is – no questions asked. Job done, crime goes down a lot. No one in a democracy could accept such a draconian approach, but every chip that authorities take from our civil liberties approaches this kind of eventuality where the authorities move to take ultimate control of our freedoms in order to address the complexities of criminality.

It is disappointing that the newly formed Human Rights Commission is not demonstrating on the court house steps on behalf of the community over yet another attack on civil liberties and human rights.
While the chair has raised his concerns to the attorney general in a short letter (published on the site), the commission, which was formed to defend everyone’s rights against the state, has been less than vociferous on this issue.

It will be crying shame if we have to wait for the unintended circumstances of this law to place someone in jail for life after being denied their right to a jury trial before the community wakes up and sees what is happening to this oh-so fundamental right.

Already the state can try you twice for the same crime, it can place an anonymous accuser before you who could be vexatious but you cannot know, and will, if this law passes, place you before a single judge, removing your right to be heard by a jury of your peers.

Not everyone who is arrested and charged is guilty. The police are not perfect; they are human beings too and they make mistakes. The pressure of rising crime and limited training is taking its toll on the RCIPS and there is no doubt that they will make more mistakes in the future.

However, the law should provide checks and balances to ensure the innocent are not convicted as a result of mistakes in policing. We have already lost two of those checks and balances and a third, perhaps the most serious of all, sits perilously close to being lost.

If the community remains silent on this, the change to the law will pass. The only hope is that the people of the Cayman Islands raise their voices and demand that their right to a jury trial remain. There are other ways in which the authorities can legislate for extreme circumstances to enable proven gang members to be tried without a jury and where tampering of jurors is a genuine possibility. The law does not need to encompass every firearms case to achieve this goal.

I have heard many people recently raise their voices loud and clear in an effort to fight the National Conservation Bill as they are convinced it threatens their rights over their own land. I sincerely hope that there are more and louder voices out there that will also seek to fight to protect this, the most fundamental of all rights. Let us hope that this time the community wakes up in time and does not sleepwalk past its right to a face a jury.
 

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  1. I miss Marius says:

    Over the last2 years I have watched the most absurd use of resources that I have seen in my entire life (I will try to make the sequence of events brief).

    -Marius is arrested at the airport for allegedly having in his possession .25 of a gram of ganja (nearly undetectable amount).

    -Marius is suspended from his job awaiting the results of his trial (in most civilized countries, this type of infraction would never make it to a judges docket).

    -Marius and Crown council spend about 40k preparing for trial.  And Marius’ employer also pays Marius 50% of his salary while he is under suspension and awaiting trial.

    -Six months later, Marius is convicted on the charge of possession (remember this was for .25 of a gram).

    -After many years of residing in Cayman, Marius now is fired from his job, his wife has to leave her job, and they are up-rooted and have to leave the island.  They were fortunate in that they were able to sell their home and possessions in a short period of time.

    -in absentia, Marius appeals and a few months later the conviction was reversed and Marius is found not guilty (both crown and defense spent several thousand dollars to prepare for the  hearing)

    -Crown is not happy and appeals the reversal.  Marius is found not guilty, again (thousands more are spent).

    -Crown is really not happy and is awarded 4th hearing on the matter.  The 4th hearing will be in August.

    by the time all the cost are added up to date; docket time, crown council costs, time spent by witnesses, defense costs, Marius’ salary while under suspension, etc.  Over a 1/4 of a million dollars have been spent and the matter of an alleged possession of .25 of a gram of ganja is still not settled.

    Can someone please help me understand how this 1/4 of a million dollar expense makes sense.

  2. Anonymous says:

    I did not quite get from the article why not having a right to trial by jury is a loss of human rights.

    It seems a major assumption that a judge would not " also consider the human element and motivation for a crime" and "likely be forced to interpret the letter of the law."

    Please explain.

     

     

  3. Anonymous says:

    This is an excellent article Wendy and I hope that the Caymanian people will wake up and take a stand on this! For this to happen would be dangerous and an erosion of our rights as a people.

  4. Anonymous says:

    I want to support the wirters veiw point and urge Caymanians to STAND UP NOW before the Govt Legal Depts rounds up all natives and put some fake charges against us to take away whats left of our freedom.

  5. Anonymous says:

    From my perspective it is a matter of drafting any change in the law so as to eliminate the problem without causing other significant problems.

    The problem of jury intimidation is not specific to gun crime. The problem is that some criminals will intimidate jury members into delivering the verdicts that the criminals want irrespective of the crime involved. So here are my suggestions.

    Persons charged with a violent crime who have previous convictions for violent crimes, witness intimidation or jury tampering – go straight to judge only trials.

    If in the opinion of the presiding judge there is any evidence of witness tampering or jury members or prospective jury members being intimidated in relation to a trial then there should be a provision allowing for the judge to dismiss the jury and go ahead with the trial on a judge only basis.

    In cases where a person admits killing or injuring a person but claims it was reasonable self defense, permit juries to weigh the evidence. I would rather have juries deciding on whatis reasonable in defending your own home or your loved ones.

    Significantly increase the penalties for witness or jury or judge intimidation – 25 year minimum for a first offense sounds about right to me although I would not have a problem with 50 years given the current threats to our society.

    All of these legislative changes can be made by our politicians if they are at all serious about limiting crime.

     

  6. Man says:

    There is one other issue we have not discussed here, that is the issue of the "visiting" Judges. I have observed that our Courts, with the exception of the few, have judges, mostly from our neighboring Jamaica, in and out of our court room. There seems to be a new face consistently. Do we not need persons committed to the improvement of our society sitting in our courts as judges? Or. Is the "visiting" Judges the best practice to prevent intimidation? But then, what of corruption?

    And please, do society a favor and not make an issue of my mentioning Jamaica, I do not have an issue with Jamaicans. I do have an issue with the fact that the RCIP, the security companies, Northward Prison, the judges, the Attorney General and the Chief Justice is predominantly Jamaicans. One nationality with control of law enforcement and Justice. So why do we need to maintain trial by Jury? Our allowing one nationality this degree of control here is in itself eroding the public’s confidence in the judiciary. And it would be the same if we had allowed the British, the Americans, the Hispanics, etc this type of dominance.

    • Anonymous says:

      I couldn’t agree with you more! If recruitment of well qualified, experienced and able lawyers was given priority for the legal department (dare I say from other jurisdictions other than Jamaica!) it might be that the skills of the prosecutors would be raised to a level where appeals of lost cases might not be so necessary. It appears to me that the prosecution is at a disadvantage because the skill level of counsel seems below the level of lawyers they are up against on the other side. Is the change in law then a mere stab at giving the prosecution a second chance, so to speak? Just a query.

  7. nauticalone says:

    We must also admit that it is possible to intimidate a Judge XXX

    From my perspective, it seems the more important and urgent need of our community is properly trained/equipped Police Officers.

    This change seems to be a band-aid for what is a serious social wound!

  8. Anonymous says:

    Home intruder shot dead! Jury or Judge trial???

    I can’t imagine any jury convicting the homeowner that shot the intruder earlier this week.  However I can imagine that a judge might convict this homeowner.  This alone should give us some pause before changing the law that all firearms offenses should be judge alone trial. 

    • Anonymous says:

      I agree in part.

      The principal problem with jury trials involving the thugs who have been terrorising the community is the potential for the thugs to intimidate a jury into acquitting guilty thugs. Is it possible that in a trial involving an ordinary citizen who has used a gun to defend himself from the same thugs that the thugs could intimidate a jury into convicting the good citizen?

      • Dennie Warren Jr. says:

        It’s also possible for residents who wish to be armed to defend themselves against those criminal thugs, while keeping our right to be tried by a jury of our peers.  The right to be tried by a jury of our peers is non-negotiable!

        • Gun lovin' criminals says:

          You really are obsessed with guns aren’t you.  Maybe we should bring back duelling too.

      • Bodden says:

        So… what are saying?

        That a Judge can’t be intimidated???

        The problem is not "Jury," but the selection of strong-minded Jurists for a case. That is why I believe one should be able to Appeal court decisions.

    • durrrr says:

      I couldn’t disagree more. If he is guilty of a crime (and that is the big IF), he should be charged, tried and, if there is sufficient evidence to prove him guilty, found guilty and sentenced.

       

      And for the record, I really hope that the Crown determines that he did use reasonable force in self defence, and decides not to charge him.

      • Anonymous says:

        I think that you are missing the point. Part of the defense in such a case revolves around what degree of force a "reasonable" person is entitled to use. That is a matter which a jury is likely to be better able to assess than a judge, which is of course is why emerging democracies in the UK and the US have insisted on trials be juries all these centuries.

        • Durrrr says:

          I don’t think I am. We’re not talking about the interpretation of laws or the exercise of discretion by the Court. We’re talking about a (theoretical) case where an accused is guilty according to ‘the letter of the law’, but a jury lets him/her walk because they disagree with the law. In my opinion, that is completely the wrong approach.

          • Anonymous says:

            Sorry, but juries have been a defense against outrageous laws passed by corrupt and self-serving politicians since juries were first invented.  [Of course we have no such politicians in Cayman.]

            In the UK context it was once the law that if a peasant stole an animal that was valued at more that a few guineas he would be hung, but if the value was less he would be flogged, exiled, jailed or whatever. The ordinary people knew that hanging a man for stealing a sheep this was wrong, so they often find that although the peasant had stolen the animal, they would also find that the value of the animal was less than the prescribed amount in order to prevent an injustice.

            The US has also historically had laws that juries refused to enforce because they were unjust, and as a result of such refusals laws were changed.

            Would you prefer the situation where the jury says, "We know that the law is unjust but the law is the law and therefore we are going to let you swing while we hold discussions to consider getting together a petition to perhaps ask the corrupt politicians to change the law." I would not.

      • Bodden says:

        durrr,

        Look at it this way, if one Jurist is bribed or intimidated by a thug, but all 8 remained firm in their resolution, chances are the guilty thug won’t get away.

        But if you have one Judge who is bribed or intimidated by a thug and he/she yields, you can see that there is nothing to prevent the thug now from going free.

        I prefer a well-selected Jury of judges rather than one Judge. It may be time-consuming, but to me, it is worth it, especially if you are innocent.

  9. Need for Change says:

    I will not get into any arguments with anyone on this page, HOWEVER, I will say that Caymanians had better wake up, DO NOT GIVE UP THE RIGHT TO BE TRIED BY A JURY! I lived for a time in a country where you do not have that right and if you could see the unjusticies that go on there it would make your hair crawl! Never put that kind of power in the hands of one individual! I also agree with the writer above "I spent three months on a jury", my opinion is that the RCIP does not look to me like they put too much into checking into the past of some of these officers they hire.

    What needs cracking down on here is these companies that are allowed to operate with licenses that allows them to take out permits for people and bring them here without them having no work secured here, they operate under the cover of a company "providing labor" . Then they turn around and collect the permit fee back from these people. All of these things are contributing to the down fall of Cayman, it helps create unemployment which then leads to criminal activities.

     

    • durrrr says:

      It’s not just one individual though – we have both a Court of Appeal and the Privy Council.

       

      I have no idea what the figures are, but wrongful convictions (that aren’t overturned on appeal) must be extremely rare in Cayman (has even one ever come to light?). Hell, the Police and Crown have enough trouble getting convictions when the accused is caught red-handed, what are the odds of them putting a successful case together when the person is innocent?

  10. Durrrr says:

    This article seems to be suggesting that we should retain jury trials, because juries are capable of acquiting guilty people. Is that really what anyone wants?

    • Anonymous says:

      No, but because a jury requires more than one person to be convinced of guilt, they are less capable of wrongly convicting the innocent, which undoubtedly is what everyone wants. And if trading a few more unfortunate mistakes in return for more convictions seems like a good deal, wait until you happen to be the unfortunate mistake and see how good it seems then.

    • durrrr says:

      put all the thumbs down you want, but it was a serious question.

       

      I honestly think the selective enforcement of the ‘letter of the law’ by the Police and juries alike is the root of half of the problems in Cayman. If someone is caught breaking a law, they should be prosecuted, convicted and sentenced in the manner prescribed by whatever law it was that they broke. If a law is wrong, it should be repealed or modernised, not just ignored.

    • Legal Beagle says:

      Jury trials are a disaster for stopping crime.  The burden of proof is too high and juries are too easily persuaded by the tricks of defence attorneys.  The majority of people who are acquitted in a jury trial are guilty but just got away with it. 

      So the cost of a jury system can be measured in terms of more criminals, more burglaries, more junkies on the streets and less deterrent for those considering crime because the risk of punishment is lessened. 

      If I was a criminal I would be a stronger supporter of the jury system.

      • Dennie Warren Jr. says:

        If you were a criminal, clearly you would want a disarmed jury also; because an unarmed jury would have to set you free, or else you would murder them without risk to yourself.  Or so you would wrongly believe, because I current have a legal right to defend myself against criminals with a lawfully owned firearm.

        The right to be tried by a jury of our peers is non-negotiable, because The Rights of the accused and the non-accused are indivisible.

    • Man says:

      Come now. The article is not suggesting that at all. Trail by jury has to remain a fundamental right and is required to ensure justice. Today in Cayman, it is an absolute necessity following the corruption allegations and investigations of the RCIP and the Judges.

      Not only must Justice be done, it must also be seen to be done.

  11. Nicole says:

    Its clear that the writer of this article does not give judges credit for considering all the issues in the same way that juries do. Judges are just as if not more capable than lay persons of considering all the facts as well as the law and arriving at a verdict to acquit or to convict.

    The tone of this article intended or not suggests that judges are incapable of acquitting persons. Something which is not true considering the number of matters tried by Judges only in the Grand Court in which there have been acquittals.

    The article is also misleading in that the writer has completely ignored the existence of the Court of Appeal to which an accused can appeal if he believes he has wrongly been convicted.

    With all these checks and balances and the high integrity of our Judges in the Cayman Islands all citizens can feel assured that there will be no infringement of their rights to a fair trial.

     

     

    • Anonymous says:

      What sense does it make to appeal if there are no transcripts of the original proceedings? This situation may well be the most serious flaw in our justice system. 

      Not only do we need verbatim written transcripts but we should have audio visual records as well so there can be no doubt about the evidence and testimony presented.

      • Anonymous says:

        Holy crap — you are telling us that there is no documentation on court proceedings!! Get out of here — what the hell. I can get a tape recorder for ya’ll if you want!

         

        • Anonymous says:

          It is absolutely scary.  The lack of accurate audio video recordings of proceedings, testimony and evidence allows a greater potential for collusion and corruption to permeate throughout the system. 

          We need to seriously wake up.

           

           

      • Slowpoke says:

        "What sense does it make to appeal if there are no transcripts of the original proceedings?”

        I believe that is why Jesus invented Court Reporters, so that transcripts are available…  

        Don’t believe me?  Search the Justice Levers case…
         

    • Scrooge McDuck says:

      Just a simple question:   I’m not clear on this I’m afraid.  Who appoints judges in Cayman?  If the answer is that they are politically appointed then the passage of this law could create problems in the future if other charges are added (to an existing law) removing the right to trial by jury.  We all know of instances in other countries where trial by judge is a detriment to human rights. Must be very careful with this move.  As I am yet to be convinced it will have the desired effect without setting a dangerous precedent for this and future administrations to amalgamate the judicial with the government.  Shades of Pinochet.

  12. Cybil Libarti says:

    Legal Begal can fancy this up however he or she likes but the author’s point is still valid. The government with all of its power and resources had its chance and did not secure a conviction but the man will be tried again for exactly the same offense which sounds very much to me like double jeopardy and an attack on civil liberties which ever way you slice it. We need to pay heed to these warnings and demand we retain these rights.

  13. Man says:

    I spent 3 months on jury duty. The fundamental problem here is not the laws, it is the hiring practice of the RCIP. The RCIP is filling its ranks with individuals who are, in many instances, incapable of conceptual skills. The world of crime has become far too complex for the RCIP to not reform its hiring practices. Enthusiasm is no longer the main requirement. I experienced police officers with limited literacy skills. How then can they convince a jury that the evidence presented is trustworthy if they have difficulty reading?

    I also have to question many of the past decisions of the Attorney General including the advice on mass status grants, he being a recipient of one of those grants, advice to the previous Governor on corruption, and the recent proposed changes to the laws. As you have pointed out here, the civil liberties are on the line.

    I have said on other occasions that we are in “new” times and the abilities of ALL senior Civil Servants and elected members need to be questioned. These are no longer the “Good old days” when there was abundance and errors were ignored. This is an era when one simple error has dire consequences to many and attempts to change the laws to compensate for poor hiring practices is indeed a clear indication of the depth of the incompetence.

    • Dennis Smith says:

      One time when I really wanted to vote "thumbs Up" more than once. There is so much truth in this comment that it needs to be the topic of a separate "Viewpoint".

      Thanks for thinking outside of the box on this one.

    • nauticalone says:

      I agree totally wih your post. Far too many of our Police are incompetent!

  14. Caymanian Patriot says:

    The fundamental theory that: "Anyone who is willing to give up their freedom for safety deserves neither" has never been more true. We should never give up the right to trial by jury, especially as an alternative to proper policing.

  15. Legal Beagle says:

    Appeal against conviction is not a double jeopardy issue.  Double jeopardy is threat of a subsequent trial on the same charge after a proper previous trial.  In any event, like many criminal law rules, (like for example the year and a day rule), double jeopardy’s historical justification is no longer as persuasive and with the advent of better evidence gathering techniques such as DNA testing, it would be unjust not to permit even a second trial (as opposed to an appeal) where the facts justified it – this is now the position in Englad.

    • Heavy Cake says:

      And you know, Wendy, if it’s like that in England then….

      • Legal Beagle says:

        "And you know, Wendy, if it’s like that in England then…." it will probably eventually be implemented here about 20 years later.