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SHOULD THERE BE A TRIAL OF THOSE FOUND NOT GUILTY?

Aug 14, 2013 Features / Columnists, Peeping Tom

 

Earlier this year, the editor and a journalist from this newspaper were summoned to appear before the courts in order to answer a charge of contempt relating to the publication of an article that reported on the deliberations of a voir dire.
The editor and the journalist were reprimanded and fined, but the presiding judge was forced because of the admissions contained in the report on the voir dire, admissions that would obviously have infected the jury with bias, to terminate the trial.  This was how serious the court dealt with an issue which had the possibility of prejudicing the outcome of a trial.
Now an even more ominous development has reared its head.  A foreman of the jury – a most important position in a jury trial – has been accused of failing to indicate to the court that he was once a client of one of the defence attorneys. The foreman has since been banned for life from being a juror.
The court cannot however terminate the trial. The discovery that the foreman was formerly a client of one of the defence lawyers was made after the trial had ended and therefore there is nothing to terminate. It remains to be debated whether a charge of contempt can still be instituted against the foreman, and in making such a determination, consideration will have to be given to  Guyana’s contempt of court laws and to the fact that the case has already ended.
The case being heard was a high profile case involving persons charged with the massacre of civilians, including children at Lusignan. This was no ordinary case and therefore now that the issue of the foreman being in a conflict of interest has arisen, it remains to be seen what action the Director of Public Prosecutions will take concerning the allegations that the foreman failed to indicate to the court that he was once represented in a case by one of the defence attorneys.  This despite the fact that it was said that during the juror selection process, the members were asked whether they ever had any association with the defence. They may have also been asked whether they knew any of the victims, the accused, or the families of either.
The DPP will have to consider whether there are provisions in both the written law or in case law, or in both, that would provide for an approach to a higher court to annul the previous trial, because of the possibility of it being infected by bias due to the presence of the foreman who has admitted that he was once represented by one of the defence attorneys.
The DPP will also have to decide whether there is a basis, both in law and in fact, to institute criminal contempt charges against the juror as was contemplated in the United States where a jury foreman in the Buju Banton case undertook research into certain matters and shared the findings with other jurors. This was seen as prejudicial and thus led to questions about whether to institute a charge of contempt. The charge was never instituted.
The Attorney General should also make known his concern, if any, about this issue of the foreman in the Lusignan massacre case, because it is a serious development for which it needs to be determined whether laws should be passed to deal with this matter.
In other parts of the world, there would have been millions of persons demanding a retrial. Whether that will happen remains to be seen, but this is one matter in which the options for striking out to the verdict in the trial need to be explored.
Can that verdict be struck down now or does it still stand? This is a matter which needs to be settled in a court of law.

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