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Jury selection rule called unfair

A man who had been charged with attempted murder claimed it was unconstitutional for a Crown prosecutor to bypass ten potential jurors — all of whom appeared to be black people.

Jahmico Trott, in a civil action launched in the Supreme Court, claimed that an appearance of bias led to “unfairness”.

His claim was supported by an affidavit from a teacher who wrote that his pupils watched the jury selection process and asked why the prosecutor “challenged only black younger members of the panel”.

The Ministry of Legal Affairs said this week that legislation on jury selection was under review in line with the Government's goal of social justice reform.

The summons, a copy of which has been seen by The Royal Gazette, listed the Director of the Department of Public Prosecutions and the Attorney-General as respondents.

Mr Trott claimed in the summons that a section of the Criminal Code that allowed the Crown to “stand down an indefinite number of jurors” was incompatible with the Constitution.

The summons said that Mr Trott, 32, had been charged with attempted murder, use of a firearm in an indictable offence, possession of a firearm with criminal intent, corruption of a witness and intimidation of a witness.

It explained that a trial was set for March 6 and that the prosecutor and defence counsel were given a list of 44 names that made up the jury ballot.

The summons said: “The plaintiff maintained his not guilty pleas to all counts on the indictment, in the presence of all potential jurors in the pool, who were seated in the public gallery.”

It added that none of the group alerted the judge to a reason why they could not be a juror in the case.

The summons said: “Thereafter the jury selection process began, during which the prosecutor stood down a total of ten jurors.

“Out of the ten, all of them appeared to be people from Afro-Caribbean descent and nine out of ten of them were male. The plaintiff is an Afro-Caribbean male.”

Harold Stovell, a senior schoolteacher, explained in his affidavit that he and seven pupils aged between 14 and 18 watched the proceedings for educational purposes when the jury selection took place.

He said: “I observed that the prosecutor on each occasion that a potential juror was called, he would turn around and stare at the individual, which appeared to me to be assessing their appearance.

“On a number of occasions he merely uttered the words ‘stand by' and to my observation, [it] became evident that all of the standbys were of black members of the panel, who mostly appeared to be young black men and one black female.”

Mr Stovell added: “It appeared to me that people in the courtroom were realising the approach of the prosecutor to be intentionally tactical.

“I would note further that there were a number of white individual jury panellists who were called and none of them were challenged.”

The teacher explained: “At their instigation, I had a discussion with my students afterwards who were interested to know as to why the prosecution could ‘stand by' so many individuals and particularly that he challenged only black younger members of the panel, in their view.

“I was unable to offer any explanation as to how this could be the case, although I assumed it was permitted.

He said: “It did strike me and my young students as unfair.

“We are very cognisant about teaching our students about fairness and equality, especially in racial matters, and I found the whole process to be disconcerting given that it appeared evident to me to be biased and unfair.”

The Criminal Code Act 1907 said that, on application from the Crown, the court will order a potential juror to stand by and another name would be drawn from the pool.

The legislation allows the accused to “effectively challenge without cause” no more than three people.

Mr Trott claimed that allowing the Crown to “stand down an indefinite number of jurors” was “incompatible with Section 6(8) of the Second Schedule to the Bermuda Constitution Order 1968”, which rules that any court “shall be independent and impartial” and that “the case shall be given a fair hearing within a reasonable time”.

He asked the court to rule that the relevant section of the Criminal Code was “unconstitutional, unlawful and inoperative in that it contravenes certain fundamental rights and freedoms” enshrined in the Constitution.

Mr Trott also asked for a declaration order that allowing public prosecutors to have “unlimited standby challenge to jurors without cause contravenes, or is repugnant to, certain fundamental rights at common law, including rights of natural justice, equality of treatment and the rule of law, and is an abuse of process”.

The summons added that he sought a declaration “that the fundamental principle of equality of arms and the constitutional right to a fair trial was contravened” by the DPP “in that the reasonably informed, fair-minded observer would consider that the selection process of an impartial tribunal could be perceived to be biased”.

The offices of the DPP and the Attorney-General were listed as respondents — the holders of the offices were not named.

Mark Pettingill, of Chancery Legal, confirmed that he was representing Mr Trott.

He said: “We have taken the view that this particular section has the potential to have, at the very least, the appearance of racial bias in jury selection and that it is archaic.”

A spokeswoman for the Ministry of Legal Affairs said that Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, was “aware of the issue that has been raised with respect to jury selection ...”

She added: “At present, the matter is being reviewed to ensure that the Attorney-General's stated aim of social justice reform is achieved.”

Larry Mussenden, the DPP, said he could not comment on the case.

It is The Royal Gazette's policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

Legal challenge: Mark Pettingil, of Chancery Legal (File photograph by Akil Simmons)

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Published July 03, 2020 at 9:00 am (Updated July 03, 2020 at 7:46 am)

Jury selection rule called unfair

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