Jury Tampering Issue Dominates Day One Of Vybz Kartel’s Privy Council Appeal In The UK

Attorney-at-law Isat Buchanan got high marks from those tuned into the first of a two-day hearing of arguments in the murder appeal of entertainer Adidja ‘Vybz Kartel‘ Palmer and his co-appellants, Shawn ‘Shawn Storm’ Campbell, Kahira Jones, and Andre St. John in the UK Privy Council on Wednesday (February 14).

In April 2014, the four men were handed life sentences for the murder of Clive ‘Lizard’ Williams after a trial lasting 64 days in the Kingston Home Circuit Court.

The day’s arguments were dominated by the jury tampering issue, revolving around whether the judge was obliged to dismiss the jury and, if not, whether his actions to manage the situation were sufficient.

Buchanan argued in the afternoon session that juror Livingston Caine — who was convicted of attempting to pervert the course of justice by offering a JMD $500,000 bribe to the jury forewoman in Kartel’s case — should not have been allowed to continue as he was tainted and that knowledge of the offer of the bribe might have influenced the other jurors to return a guilty verdict.

“In relation to the jury, there has never been in modern common law where a juror we know for a fact is poisoned, is tainted, was allowed to remain on a jury, to bring a verdict, simply because the legislation would have prevented him from being discharged where it is clear, on its face, that that juror ought to have been moved to protect the fair trial right,” Buchanan said.

In Jamaican legislation, “the judge is conferred with the authority to discharge a juror who becomes ill or is incapacitated as long as the jurors don’t go below 11 when murder is involved, then the verdict will be considered unanimous”.

Buchanan argued that the sum total of the breaches constituted a serious breach of the appellants’ human rights. He argued that “all state actors have a duty not to abridge or abrogate the rights of the individual, and if it is done, you must show it is demonstrably justifiable.”

“What is significant is that the test, which is that the demonstrably justifiable test, is mandatory once there is a breach, and before us now, there was a breach,” he said. 

In 2011, an act was passed to amend the Constitution of Jamaica to provide for a Charter of Fundamental Rights and Freedoms and connected matters.

“The learned judge, and I will say this respectfully  – this came at a time when the charter was very young – to allow for contemplation to give effect to it,  as judges do, in determining the intent of the legislation,” Buchanan said.

He made a polished presentation using comparative human rights jurisprudence in other territories to highlight the intended interpretation of section 32B of Jamaica’s own Charter of Human Rights. Buchanan referenced the Canadian Charter of Rights and Freedom and the South African Constitution’s Bill of Rights, which has a general limitation clause in section 36 regarding human rights breaches. The term “demonstrably justified” connotes a strong evidentiary foundation, which Buchanan argued, was not established by the judge or prosecution in the case. 

A confident Buchanan is not merely angling for a retrial of the Worl’ Boss. Instead, he wants the conviction of Vybz Kartel and his co-appellants to be quashed. “There is no cure, no proviso, or no thought of a retrial or a second bite of the apple where the unfair trial right was breached in manner that it did,” Buchanan said. 

However, King’s Council Peter Knox, who appeared on behalf of the prosecution, argued that “one bad apple” should not lead to a dismissal of the entire jury. Under local laws, Caine’s dismissal would have meant the trial could not continue, as there would be only 10 jurors remaining following the earlier discharge of a female juror.

“What is a judge to do? Defendants can’t derail trials just by making bribes to juries,” Knox submitted. 

He suggested that the bribery attempt was calculated to derail justice as it came at the end of the trial. 

Knox outlined a paragraph in his submission where he said the judge had acted most sensibly after “deliberate misconduct by a defendant aimed at achieving a discharge in circumstances where the trial is going badly”.

“There are 10 innocent jurors who have performed their duty at a suitable level without any shred of bias, it would bring the system into disrepute if the verdict has nonetheless been set aside because of one bad juror who wasn’t obeying his duty,” Knox said. 

However, the Privy Council judges noted that a judge cannot sidestep the requirement to dismiss a juror in instances where they are found to be unfit, such as if they suffer from a mental illness. One judge said the “normal scenario is to get rid of that juror”.

“The prosecutors are the losers here,” Knox hit back.

“But how can you know,” Lady Simler questioned. 

“If jurors thought that an attempt was being made to bribe them on behalf of the defendants then it might have inclined them to dig their heels and prejudiced them against the defendant,” Lord Reed remarked. 

The matter was adjourned at 4:04 p.m. UK time or 11:04 a.m. local time, and will continue on Thursday (February 15).

In the meantime, Dancehall fans are raving about Buchanan’s poise and presentation.

One noted: “I love how mr Buchanan stand out for jamaica..forget the kartel case…he’s intelligent, looks presentable..and has guts…but at the sametime…free kartel…unu breach!”

Another social media user said: “Forget the case itself. How this man represents himself and Jamaica at large is immaculate and should be an example for all of us to follow. To be this bold, fearless and confident in ones own ability is exactly what Marcus Garvey wanted for all black men and women. Im not even related to this man and im beaming with pride as if he was my big brother or uncle. Jah know star.”

Another user was also effusive in his praise for Buchanan, remarking:
“Trinidadian here..first thing first big up to the lawyer, as a black man and a Caribbean man he made me proud, very articulate in his presentation, not saying that our ppl aren’t capable but its always refreshing to see it on display ..FREE WORLD BOSS !!”

Not everyone was impressed, however, as one remarked: “He is not arguing against ‘not guilty’ but more on procedural basis which is a good strategy which may not free him but set up a new trial.”