COMMENTARY: Jeffrey Daniel: An Experimental Juryless Murder Trial

Jeffrey Daniel: An Experimental Juryless Murder Trial

BY Rawlston Pompey

Within the Judiciary, and by extension, the wider society, the focus of functional attention has been placed on an ancestral child, Nigerian-born and trained jurist, ‘His Lordship, Justice Tunde Ademola Bakre.’ He has broken barrier. Research into his appointment revealed this Magazine ‘Law and Society’ report; ‘Announcing the appointment of our own Justice Bakre, Secretary to the Judicial and Legal Services Commission of ‘ECSC’ stated; ‘The Commission was impressed with your skills and accomplishment, and deems your background and experience to be good match for the Judiciary; [Nigeria: LS: July 15, 2023]. The nation lauds ‘His Lordship’s appointment.

BASTION OF HOPE

Still emerging from the shackless of British colonialism, but with strong judicial ties, the twin-island nation of ‘Antigua and Barbuda’ has entered its 42^nd Year of political independence’ [November 1, 1981]. In the ‘2023 year of human civilization, and with some semblance of a growing democracy, there has been expressed dissatisfaction and distrust in the concept called ‘Criminal Justice.’ In some areas of adjudication, it appears that the overwhelming majority of the law-abiding citizens have not been fully inspired into accepting the Courts as the ‘Bastion of Hope.’ Such ‘Hope’ could be strengthened with the distinguished additional Judicial officer.

INSPIRING CONFIDENCE

Speaking to Judicial officers, likened to others ‘Her Ladyship, Justice Ann-Marie Smith,’ has sought to ‘Inspire Confidence’ in this vital institution. Her Ladyship’s understanding of ‘Criminal Justice,’ as well as the dispensation of it, appears not to have been just a perception, but of its reality. Such inspiration is not only conducive to an enabling societal environment that allows for the law-abiding to go about their lawful business unmolested or commune in peace and harmony, but also free from acts of criminality. Undoubtedly, such is vitally important to the ‘Rule of Law.’

BEST LEGAL MINDS

Though progress is a must, to the citizenry, it has been both a blessing and curse. A blessing as change is inevitable, and a curse when the ‘Wrath of Man’ descended.  In direct reference to ‘Murder Trials,’ the law-abiding citizens never anticipated that there would be appointees to the ‘Bar,’ so statutorily-empowered as to function in the dual role of ‘Judge and Jury.’ Intending no provocation of discourse, nor promotion of disdain, nor functional disharmony, the Judiciary, staffed with some of the most ‘Best Legal Minds,’ has in the recent past, given general public more ‘Dreams to Remember,’ than those experienced by ‘Otis Redding’ in his lifetime [September 9, 1941-December 10, 1967].

PUBLIC SCRUTINY

Still, every ‘once-in- a-while,’ the ‘Criminal Justice System’ has come under ‘Public Scrutiny.’ This occurred when it has shown much more intriguing behavior, than developments within the sphere of human socialization within the nation. The lawless often interacts with this system.  The fundamental difference, however, has often been its sometimes-uncanny practices and procedures. Thus, within this system, no citizen shall take comfort that a juryless murder trial shall take on the procedural appearance of that obtained in ‘Courts of Kangaroos.’

MURDER

From time immemorial, the killing of a person considered a ‘Reasonable Creature in Being’ has been criminally classified as’ Murder.’  Societies, everywhere have been outraged in the unlawful, cold-blooded and senseless shooting and brutal hacking that have either brought painless instant, or painfully suffering death. The frequency, nature and gravity of this felonious act has long dictated that society placed this crime at ‘Common Law.’ It was one of two serious criminal acts, so considered.

INDEPENDENT AND IMPARTIAL

For ‘Serious Felonies.’ such as; (i) Treason: and (ii) Murder,’ human civilization dictates that uncivil behavior shall neither be embraced, as to be seen as enjoying societal tolerance. In non-democracies, where due regard has failed to be given to the ‘Universal Declaration of Human Rights,’ this nation allows for certain entitlements. The criminally indicted is; ‘Entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him/her’ [December 10, 1948: UDHR: Article 10]. While there might be issues with ‘Impartiality,’ there shall be none with the ‘Independence’ of a criminal tribunal.

REMOVAL OF INDEPENDENCE

In a trial for murder that which was conducted without a ‘Jury,’ necessarily means removal of the ‘Independence’ of the tribunal. For, it is the ‘Jury’ that independently judges ‘Facts.’  Moreover, it is the Jury that makes determinations of ‘Innocence or Guilt.’ The ‘Trial Judges’ are all professionally competent in their primary adjudicating role in judging ‘Law.’ Thus, theirs is the judicial duty in guiding the lay persons (Juries) understanding with their legal knowledge and expertise.

JUDGE AND JURY

When the legislative initiative that saw the ‘Criminal Proceedings (Judge Alone Trial) Act’ duly enacted, except with cunning design or intent to mis-inform; mislead; or deceive, the Government hosted website currently reveals; ‘The Bill specifies, such as ‘Murder,’ will require trial by both ‘JUDGE and JURY’ [http//laws.gov.ag uploads>2020/03>criminal…]. Whether or not client and attorneys were mindful of possible looming consequences, the murder-accused appeared to have reposed sufficient ‘Faith’ in the ‘Pandemic Mode of Trial.’

RIGHT TO JURY TRIAL

The specified offences were not inclusive of murder. Instructively, in the United Kingdom from which this nation’s jurisprudence was derived, any person charged with a criminal offence, which penalty exceeds imprisonment of six months, has reserves the ‘Right to ‘Jury Trial’ [Wikipedia]. Contrastingly, within this jurisdiction, a murder-accused facing the ‘Penalty of Death,’ (though not now enforced), by a statutory enactment, has opted and consented to be ‘Tried by Judge Alone’ [Criminal Proceedings (Trial by Judge Alone: No. 8 of 2021: Section 5].

JUSTICE AND LAW

The young, restless, reckless and lawless shall understand that the ‘Criminal Justice System’ has never been about ‘Optional Exploitation.’ The institutionalized ‘Criminal Justice System’ and Rule of Law,’ were established to keep those so characterized in check. Even so, the legal systems were never intended to be religiously, but for reasons of urgent necessity. The expedient use in continuity of the ‘Judge Alone Trials,’ in the absence of a ‘Pandemic’ where there exists risk to the national health, appear more of a danger to improvement within the ‘Criminal Justice System,’ could see ‘Criminal Justice’ being starved for efficient dispensation.

TREASON AND MURDER

No matter the scholarly teaching, learning, intellect and Court room practice, none may deny that the two most serious criminal acts referred to, in the ‘Constitution Order of Antigua and Barbuda,’ have been; (i).’Treason; and (ii) Murder.’ So, grave have been these horrible and heinous crimes, that the ‘Constitution’ recognizes the statutory imposable penalty of ‘Death.’ Still, the constitutional provision states: ‘No person shall be deprived of his life intentionally, save in execution of the sentence of a Court in respect of crime of: (a) Treason; or (b) Murder’ [CO: 1981: Section 4 (i)].

UNLAWFUL KILLING

Criminal proceedings began with an indictment that charged murder-accused ‘Jeffrey Daniel’ with the ‘Unlawful Killing’ of ‘Newfield resident, ‘David Roberts.’ The victim reportedly succumbed to injuries sustained to his neck at his residence [May 21, 2021]. Having sought legal advice, and retained such legal services, he appeared to have placed his ‘Fate’ in the hands of a ‘Judge,’ statutorily provided with ‘Jury Power’ to conduct ‘Judge Alone Trials’ for certain criminal offences. That which may have informed such option, appeared sealed in client/counsel confidentiality.’

JUDGES WITH JURY POWER

Seeking to sensationalize the unprecedented ‘Juryless Murder Trial,’ a local and scooping regional news portals reported; ‘The first witnesses took the stand yesterday in the ‘Inaugural Judge only Murder Trial’ of Jeffrey Daniel’ [Observer Media: Loop Caribbean: November 3, 2023]. The enactment that provides ‘Judges with Jury Power,’ states; ‘Where a trial is conducted without a Jury, the Judge shall have; (i) ‘All the power; (ii) Authority; and (iii) Jurisdiction of a Jury’ [Criminal Proceedings (Judge Alone Trial) Act: No. 8 of 2021: Section 7]. Then acting in the capacity of Trial Judge, the ‘Act’ provides for a ‘Trial Judge’ to address preliminary issues, (if raised). These include; (a) ‘Fitness to plead; and (b) Fitness to stand trial for the specified offences [CPTBJAA: Section 4 (1)].

MODE OF TRIAL

As may have been explained for better understanding of that which a murder-accused may have been advised, the enactment appears as clear as the midday skies. Unsuspectingly, who else would have been legally-positioned to offer advice and/or to exploit the susceptibility and/or gullibility of clients to opt for such mode of trial?’ Still, even with such ‘Certification,’ Parliament could never have intended that an adjudicator should be ‘Jury,’ judging ‘Facts’ in any trial on indictment for murder. Prosecutorally and sensationally, there are people that so believed. A Trial Judge may run the risk of having such ‘Judge Alone Murder Trial’ nullified and voided for want of jurisdiction.

WANT OF JURISDICTION

While adjudicators are expected to judge ‘Points in Law,’ none shall be tasked with finding guilty, a murder-accused; imposed the statutory stipulated punishment; then act as executioner for the two capital offences. Until there is a law that specifically and jurisdictionally mandates trial Judges to make determinations of innocence or guilt for this serious criminal act, the trial of murder-accused ‘Jeffrey Daniel’ by a ‘Judge Alone,’ appear starved for legitimacy, and in ‘Want of Judicial Jurisdiction.’

NON-CAPITAL OFFENCES

For the ‘Non-Capital Offences,’ in ‘Judge Alone Trials,’ the ‘Act’ has made clear; (a) ‘The legislative purpose; and (b) The parliamentary mischief aimed.’ That which no ‘Jurisdictional Authority’ has been specified in the enactment, was that of ‘Judge Alone Murder Trials.’ Incidentally, it has specified the criminal offences ‘Judge Alone Trials’ shall be so undertaken. It states; Every person who is committed for trial, or indicted alone or jointly for any offence set out in Subsection (2), shall be tried before a Judge sitting alone, without a Jury’ [CPJATA: Section 4: No.8 of 2021].

CLASSIFIED OFFENCES

Neither before, nor after, the provisions contained therein, the ‘Act’ has made reference to trial on indictment for ‘Offences Against the Person Act.’ These include; ‘Murder; Serious woundings; Grievous assaults; or Bodily harm.’ The offences so classified and made triable by ‘Judge Alone,’ it further states; ‘On the other hand, crimes involving; (a) ‘Property; (b) Theft; (c) Forgery; (d) Drugs; (e) Money Laundering; (f) Firearms, etc. can be heard with a Judge alone, and an accused person can decide how he/she wishes to be tried’ [Criminal Proceedings (Section 4: Judge Alone Trial) Act: No 8 of 2021].

26- INDICTABLE OFFENCES

The ‘Criminal Proceedings (Trial by Judge Alone) Act’ has listed some twenty-six (26) Criminal Offences.’ Upon indictment, the ‘Act’ has made it mandatory for accused persons so indicted by the ‘Director of Public Prosecutions (DPP)’ to be tried by a ‘Judge’ without empaneling a Jury.’ In the absence of the two ‘Capital Felonies-Treason and Murder,’ the ‘Act’ provides for other offences to be so tried. It sets out; (i) ‘Procedures to guide the defence; (ii) Procedures to be prosecutorally followed; and (iii) Directions to judicially accommodate the ‘Juryless Trials.’

TINKERED PROSECUTION

Likened to particular pieces of legislation, there are some prosecutorial decisions that when taken, were sometimes capable of being described as a; ‘Tinkered Prosecution.’ Thus, as law-makers sometimes tinkered with law, as to be seen as performing legal gymnastics. When the murder-accused reportedly applied for, and consented to be tried by ‘Judge Alone,’ he would have waived his right to be tried by a ‘Jury of his Peer.’ However diminished may have been their responsibility, the ‘Juryless Murder Trial’ got smoothly underway.

JUDICIAL THUNDER STORMS

To see and hear ‘His Lordship, Justice Tunde Ademola Bakre,’ is to be at the ‘Criminal Assize.’ To see and hear lightning and thunder, one could be anywhere.’ Preparing ‘His Lordship’ for an apparent baptism of judicial fire, thereby confining the ‘Honourable Justice’ to the ‘Pandemic Mode of Trial,’ sounds capable of being described as anything, but thunder. Those who may not necessarily observe bolts of lightning, will most likely experience the silence-tapping gavel in delivering the verdict of the Court. This shall come after the apparent experimental ‘First Murder Trial’ by ‘Judge Alone.’ Whether or not the outcome harmonized with human expectations, ‘His Lordship’ set poised to cause as many ‘Judicial Thunder Storms.’.

CARIBBEAN EXPERIENCE

As it affects ‘His Lordship’s’ professional and adjudicating capacity, experience and competence, none shall be circumspect. Even so, for his ‘Caribbean Experience,’ legal luminaries have expressed functional concerns over possible; (a) ‘Disingenuity to His Lordship; (b) Likely embarrassment to the Judiciary; (c) Disservice to the nation; and (d) Grave injustice to Justice.’ These they have viewed from the perspective of foisting a ‘Judge Alone Murder Trial’ upon the apparent innocent and unsuspecting ‘Trial Judge.’ Research has revealed no set precedent by any Justice (past or present) within the ‘Eastern Caribbean Supreme Court (ECSC).’

CRIMINAL JUSTICE

Had ‘Judge Alone Murder Trial’ been so intended, there may have been no need for the enactment called the ‘Juries Act’ [No. 6 of 2009]. That which now seems most troubling, has been that which the ‘Constitution Order’ never intended, and ‘Criminal Justice’ never demands. Though the ‘Judge Alone Murder Trial’ of ‘Jeffrey Daniel’ has yet to reach the threshold for a ‘Judge Alone Verdict,’ the professional view has been that no sitting Judge of the ‘Criminal Assizes,’ shall replace the empanelment of ‘Jury’ specifically to provide lay-person peerage in murder trials.

HUNG JURY v HUNG JUDGE

Seemingly, optionally and legally guided by his attorneys, to all intents and purposes, the murder-accused has waived his right to a ‘Judge and 12-member Jury Trial.’ While there may be a ‘Hung Jury,’ there is no such concept as a ‘Hung Judge.’ That which may have been rightly or wrongly considered his best trial option, may bring him joys to celebrate or likened to ‘Otis Redding,’ left him with remembrance of a ‘Murder Trial.’ It has been the trial in which a ‘Judge Alone’ determines ‘Verdict; Fate; and Future. Until the ‘Judge Alone Verdict’ has been delivered, the murder-accused may have reasons to quietly sit and ponder.

OBJECT – PERIOD OF OPERATION

Instructively, the ‘Criminal Proceedings (Judge Alone Trial Act),’ when tabled in the House of Representatives, Legislators addressed both; (i) The object; and (ii) The period of its operation.’ Thus, it states; ‘The object of this ‘Bill’ is to facilitate the trial of criminal matters in the High Court by Judge Alone; that is by a Judge sitting without a Jury. Ensuring that general public and persons having business to do at the ‘Criminal Assizes,’ the ‘Act’ continues; ‘Notably, the Act when passed will only apply for the period of the Pandemic’ [ABL: http//laws.gov.ag > uploads > 2021/03/ criminal].

DREADFUL RULINGS – DREADFUL VERDICTS

Where there is no Jury, the likelihood for dreadful rulings and dreadful verdicts to be given have never been without legitimate concerns. Though not necessarily unmindful of that which such trial entails, Defence attorneys ‘Wendell Robinson-Alexander’ and associate Wayne Marsh, as well as ‘Director of Public Prosecutions (DPP), Shannon Jones-Gittens’ may have been cognizance of the specified offences to which such ‘Mode of Trial’ without ‘Jury’ refers.

ADVENTUROUSLY RISKY

For instance, an accused person indicted for trial at the ‘Criminal Assizes,’ and for offences not specified in the Act,’ is required to ‘Consent’ to be so tried. The language and tenor contained therein, have been such that even with the advice of ‘Defence attorneys,’ such trial appears ‘Adventurously Risky.’  Before an order was made by the ‘Trial Judge,’ an accused person is required to provide a ‘Certificate of Confirmation of Consent (COCOC),’ for offences charged or indicted, but not listed among those specified for mandatory ‘Judge Alone Trial.’

THE ‘COCOC’

For the benefit of  knowledge, ‘The COCOC’ reads; ‘ I Charles Tabor-Black confirm; (i) ‘That I have sought and received legal advice from the undersigned attorney-at-law; and (ii) I have elected to be tried by a Judge alone; (iii) The attorney has; (a) ‘Advised me of my rights; (b) Possible defences; (c) Penalties; (d) Consequences and implications of electing to be tried by Judge Alone; (e) I had sufficient time to confer with the attorney concerning this mode of trial.

FAVORABLE OR DETRIMENTAL

The Certification ends; (f) ‘I fully understand the implications of electing to be tried by ‘Judge’ alone’ [Criminal Proceedings (Judge Alone Trial) Act: No.8 of 2021: Section 5 (4)]. Whether or not to his ‘Favor or Detriment,’ the ‘COCOC’ ends; (a) ‘I Consent and Agree to have my trial conducted by a Judge without a Jury; (b) I freely and voluntarily give this consent of my own choosing and my own free will, without reservation; and (c) That no promise; inducement; threat; coercion or force of any kind was employed by anyone to secure my consent to this mode of trial’ [CPJATA].

CERTIFICATE OF CONSENT

Notwithstanding defence counsels best professional advice, in any ‘Juryless Murder Trial,’ electing to be so tried appears detrimentally risky. Should an adverse verdict be given, an accused appears well-positioned to argue that he/she submitted to solicited legal counsel by trusted attorneys. That which remains open to reasonably drawn inferences from the very carefully crafted ‘Certificate of Consent,’ is that an accused person seeking such advice, undoubtedly, would have been introduced to the ‘Pandemic Mode of Trial.’ Clearly, it would have been seen as anything, but; (a) ‘Making own choosing; and (b) Exercising free will.’

SHORT TITLE AND COMMENCEMENT

Be that as it may, that which shall have been clear in the minds of general public; the populace and members of the legal fraternity, and more particularly, the ‘Director of Public Prosecutions (DPP), were; (i) ‘The Short Title; (ii) Commencement of the Act; and (iii) Period of operation.’ The ‘Act’ states; (a) ‘The Act may be cited as the Criminal Proceedings (Trial by Judge Alone) Act; (b) The Act shall come into force on a date appointed by the Minister; and (c) Shall remain in force for a period of two years from the date so appointed’ [Section 1: (1 & 2)].

CONTINUATION OF ENACTMENT

The date the enactment came into force was ‘June 7, 2021’ [Montserrat Alive]. The two years shall have expired on ‘May 6, 2023.’ Instructively, prior to the operationally-expressed expiry date, the ‘House of Representatives and the Senate, sat and passed a ‘Continuation Act’ [May 18, 2023: and May 25, 2023: No. 5 of 2023]. Giving legitimacy to continuation, this statutory provision is contained in the ‘Interpretation Act’ [Chapter 224: Section 14]. Even so, the enactment made no provisions for ‘Judge Alone Murder Trial.’

SANCTITY OF LIFE

Though abolished in the United Kingdom and its dominion [1965], attempts to foist its abolishment upon former, but independent ‘Small Island States (SIS),’ such as those of the ‘Eastern Caribbean.’ Some nations have embraced the retention of the ‘Death penalty as a national policy. Some, have shown a willingness in embracing and showing respect for human dignity and worth, and more particularly for the ‘Sanctity of Life.’ However, in view of existing Law, the ‘Sentence of Death,’ remains the legal penalty imposable upon those found guilty by ‘Juries of their peers.’.

PRATT AND MORGAN

The historic London Privy Council ruling in the Case ‘Earl Pratt and Ivan Morgan’ [Jamaica: 1977], makes the case for abolishment. Both murder-convicts saw a Jury, deliberated for just two hours, before returning guilty verdicts for murder. The murder-convicts, sentenced to be hanged, reportedly languished on ‘Death Row’ for some 14 years. The ‘Judicial Committee of the Privy Council (JCPC),’ in its Apex appellate capacity, considered the psychological impact the delayed execution had on their lives. Some authors described it as ‘Mental anguish.’ The Privy Councilors not only ruled that such was ‘Cruel and inhuman punishment,’ but also in violation of the ‘Jamaica Constitution’ [November 2, 1993].

CONTROVERSIAL CRIMINAL PUNISHMENT

It further ruled that execution shall be carried out within five years of being convicted and condemned. This has been a challenge for many jurisdictions that retain the ‘London Privy Council’ as its ‘Apex Court.’ Nationally, there were more calls for the ‘Retention and Imposition’ of the ‘Death Penalty,’ than of calls for its ‘Abolishment.’ Notwithstanding the legality and constitutionality of the ‘Controversial Criminal Punishment,’ most pro-life advocates; legal officers and luminaries; practitioners may not have considered the existing constitutional provision.

PENALTY SECTION

Nationally, the one-line ‘Penalty Section’ for this crime simply and sharply states; ‘Whosoever is convicted of murder shall suffer death as a felon’ [Offences Against the Person Act: Chapter 300: Section 2]. The following Section also states; ‘Upon every conviction for murder, the Court shall pronounce sentence of death’ [Section 3 (1)]. While such punishment is contained in the law, and its imposition resides with ‘Trial Judges,’ determination of; (a) ‘Innocence,’ a ‘Constitutional Presumption,’ silently, at trial, the general public, and by extension, members of the wider society reasonably expected that; (a) Innocence or (b) Guilt’ shall be the findings of a Jury.

PREROGATIVE OF MERCY

That provision states; ‘The Governor General may, in His Majesty’s name, and on His Majesty’s behalf; (a) ‘Grant to any person convicted of any offence against any law, a pardon, either free or subject to lawful conditions.’ The sentence of the Court and a willingness by the Governor General to exercise ‘His Majesty’s Prerogative of Mercy’ has long been constitutionalized. Most profound has been the provision that states; ‘The Governor General may substitute a less severe form of punishment for that imposed for any sentence for such an offence’ [CO: 1981: Section 84 (i) (a): (c)].

CONCLUSION

Since its enactment and two-year period of operation of the ‘Criminal Proceedings (Trial by Judge Alone) Act,’ has expired, no ‘Criminal Assizes Courts Judge’ has ever ventured to hold ‘Juryless Murder Trials.’ Even as the enactment provides for ‘Judge Alone Trials,’ those participated shall have had clear understanding that no legal or judicial authority currently exists or resides with ‘Trial Judges’ to conduct ‘Juryless Murder Trials.’ In their anxieties and uncertainties, trepidation and expectation, that which shall be borne in mind, is that criminal trials have always been about; (a) ‘The search for truth and dispensation of justice; (b) Justification or liability for the act of criminality; and most importantly; (c) That it shall manifestly appear that Justice was done.’ These have not only represented the harsh realities of life, but also invariably confront the ‘Child of Blessing’ and the ‘Child of Woe.’ All may now sing; ‘Bless the Name of Jesus.’

 

 

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