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Curb backs end of jury ‘standby’ rule

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An antiracism group said yesterday that proposed changes to Bermuda's jury selection process should be “only the beginning”.

Citizens Uprooting Racism in Bermuda welcomed amendments tabled in Parliament last week after Chief Justice Narinder Hargun said that a section of the Criminal Code on juries went against the principle of a right to a fair trial.

The charity was speaking after Mark Pettingill, the defence lawyer who took the case for a change to the Supreme Court, said he received a “significant number” of inquiries from people concerned that they could have been affected by legislation that allowed prosecutors to stand down an unlimited number of potential jurors although defence counsel could challenge only three without reason.

Cordell Riley, Curb's vice-president, said: “Curb welcomes the Attorney-General's swift response to making changes to the law that now allows both prosecutors and defence attorneys to equally challenge jurors for court cases.

“Up until this point, as highlighted in a recent news story, prosecutors had an unfair advantage in the numbers of jurors that they could dismiss.

“If justice, as it has been said, must not only be done, but also be seen to be done, the current situation flies in the face of fairness.

“It is an archaic, colonial privilege that ensures greater opportunities for conviction and less for justice. It is also an example of structural racism.

“Given the considerable breadth of legal intellectual power in this community, none had challenged this practice previously, presumably because they were comfortable with it.

“Structural racism cloaks itself in practices that have endured over time.”

The Supreme Court decision came after Mr Pettingill, acting for Jahmico Trott, made a Constitutional application, which was not opposed by the Crown.

Mr Justice Hargun found that Section 519(2) of the Criminal Code was inoperative because it allowed a difference in the number of juror challenges available to the defence and “standbys” that could be made by the prosecution.

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.

Mr Pettingill said that, during jury selection for Mr Trott's Supreme Court trial, prosecutors “stood by” ten potential jurors — all of them black people.

He did not accuse the Crown of wrongdoing, but explained that the circumstances raised concerns about the appearance of bias and “equality of arms” — that there should be a level playing field for the defence and the prosecution.

Mr Riley added yesterday: “Perhaps it is not so ironic that it took an individual whose alleged actions landed him in the system to point out such a glaring anomaly in the execution of ‘justice'.

“It is to the Attorney-General's credit that she responded positively. But this should be viewed as only the beginning.

“How many people may have got an unfair trial because the jury was stacked against them? Might this not spark a review of the criminal justice system, something that Curb has repeatedly called for in their Racial Justice Platform?”

He said that the proposed amendment did not weaken the justice system, but enhanced it.

Mr Riley added: “If you've committed a crime, you still go through the system. It's now a lot fairer for you to go through the system.”

He added that a review of legislation could identify areas of law that, with small changes, would have “a huge impact for a fairer trial”.

The Supreme Court heard last Friday that Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, had already drafted amendments to the Criminal Code. They were tabled in the House of Assembly that day.

Ms Simmons explained last week: “As the Government perpetually keeps the state of the law under review for modernising reforms, we have acknowledged that there is a disparity in the jury selection process which could give the appearance of bias benefiting the Crown.”

She said that the changes would give the Crown and the defendant the same number of “without cause” challenges to potential jurors.

Mr Trott said later: “I am very pleased with this result as I believe it ensures that I have a fair trial, where before on the jury selection, I simply was very concerned. I'm also very pleased because I think it creates a position of justice for other people that is long overdue.”

Mr Pettingill added: “I have now entertained a significant number of inquiries about individuals who are concerned that this very thing happened in their jury selections.

“In some instances I have been contacted by lawyers who indicated to me they had raised this issue before and it had been at the time rejected by the court.”

The lawyer added that any concerns raised with his practice, Chancery Legal, would be reviewed to determine “what the legal implications are with regard to their cases”.

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.

Significant victory: defence lawyer Mark Pettingill has received “a significant number of inquiries” about jury selection in recent court cases in the wake of a ruling last Friday, knocking back the Crown's right to challenge an unlimited number of jurors while limiting the defence's powers (Photograph by Blaire Simmons)
The family and friends of Jahmico Trott gather outside of the Dame Lois Browne-Evans Building (Photograph by Blaire Simmons)
For fairness: Cordell Riley, of Citizens Uprooting Racism in Bermuda (File photograph)
Jahmico Trott (Photograph supplied)

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Published July 21, 2020 at 9:00 am (Updated July 21, 2020 at 7:28 am)

Curb backs end of jury ‘standby’ rule

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