Appeal court sent GSR report

(CNS): Following the disclosure of a report regarding the significant levels of gunshot residue contamination at the George Town police station, as well as on vehicles, officers and equipment, another local attorney has sent the report to the Court of Appeal. Lawyers representing Razial Jeffers, who is awaiting an appeal ruling regarding his conviction for the murder of Marcus Ebanks and the attempted murder of four other men in July 2009, have forwarded the report because GSR evidence forms part of the case made against their client. Meanwhile, the police have said the findings are not unexpected and seemed unconcerned about the potential impact the report may have on current criminal cases.

After passing on the report to the senior panel of judges that hear Cayman’s Grand Court appeals, Michael Wolkind QC and Richard Burton took a different view as to the importance of the report.

"This really is a significant development. Effectively the RCIPS are acknowledging that there has been an unsafe system up until now. It's in everyone's interest that scientific findings are reliable,” said Barton as he welcome the recommendations that were made in the report. “But it is obvious that a number of convictions must now be questioned."

The report by Scientific Support Manager Martin Gaule showed that there was a real danger of contamination as a result of GSR levels and made a number of recommendations to the RCIPS to help them reduce the problem. Following the report’s public revelations Detective Superintendent Marlon Bodden said the memo reminded staff to comply with the established processes and procedures when dealing with firearms and suspects and said it was not unusual for the RCIPS to issue such procedural reminders to staff.

"These swabbing exercises are carried out routinely in other jurisdictions and it is our intention, as part of our on-going efforts to further professionalise our service, to continue with a programme of swabbing to ensure that our stringent process and procedures are being adhered to,” Bodden stated.

Despite being routine in other jurisdictions, it appears that this is the first time such an exercise has been carried out in the Cayman Islands, though police now say it will be an on-going exercise. “We intend to continue the process of random sampling in order to ensure best practice," Bodden added.

The senior cop added that only two areas were found to have high levels of GSR: one on an officer and the other outside a cell at the station.

“Such a finding would not be unexpected as the report itself acknowledges,” Bodden said. “It is for this reason thatour protocol is that suspects are not handled by firearms officers without adequate precaution being taken to guard against contamination.  The other areas yielded low levels or trace amounts of GSR.”

The senior officer added that it is not normal procedure for GSR evidence alone to be used to prove possession of a firearm but more usually used to support other evidence available, such as DNA or eye witness testimony.

However, attorneys are pointing to situations where the GSR is used to bolster what is claimed to be weak or circumstantial evidence. In those cases the report will discredit that evidence, leaving some crown cases thoroughly undermined and leading to legal challenges in forthcoming cases and more appeals in ones already tried.

Peter Polack, the local attorney to whomthe report was disclosed during the process of a case, raised another concern relating to the report when he described the “unconscionable delay” in the release of this information to those affected by it on the part of the authorities.

“This is not the first time there has been a failure by the Cayman Islands law enforcement to release crucial information in a timely manner,” the lawyer said.  Polack pointed to the ruling by Justice Alex Henderson in the Grand Court during the Jeffers murder case where the judge found that there had been a breach of the defendant's right to disclosure — a breach, Polack said, that was admitted by the Director of Public Prosecutions (DPP) representative present in court.

“Crown counsel accepts before me that the accused's right to disclosure had been breached,” the judge stated in his ruling before the start of the trial at the beginning of this year. "I have been assured during argument that steps will now be taken in the Prosecution Service to ensure that there is no repetition of this unfortunate event."

However, the defence lawyer said that this had clearly not been the case. Polack said in other matters relating to the Jeffers case Deputy DPP Trevor Ward was forced to submit a statement in the appeal court confirming the failure to disclose crucial telephone analysis records relating to the chief prosecution witness, which has now formed one of the grounds of appeal. 

There has been a growing number of complaints in the Grand Court over the last few months from defence attorneys regarding problems with disclosure. It is understood that with the changes to the criminal procedure code introduced by the attorney general, which have seen certain criminal cases shunted into Grand Court far more quickly, and the elimination of preliminary enquiries, the workload at the DPP’s office may be now increasing beyond its ability to keep pace.

Related article and report on CNS:

Cops contaminated with GSR