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Trio appeal conviction on unconstitutional jury selection grounds

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Mark Pettingill (Photo by Akil Simmons)

Three convicted gunmen yesterday claimed their trials were tainted by unconstitutional jury selection in the Supreme Court.

Leveck Roberts, Quincy Brangman and Khyri Smith-Williams asked to have their convictions quashed by the Court of Appeal in the wake of an uncontested ruling against the ability of prosecutors to reject potential jurors.

Mark Pettingill, who appeared for Brangman, said that a ruling could affect hundreds of cases, but that the court should not make a decision “for the sake of convenience”.

He added: “I appreciate that it may raise an issue of concern, but justice is blind for a reason, and that is part of the reason.”

Brangman is serving a 25 year sentence for the attempted murder of Nathan Darrell in 2010.

Smith-Williams was jailed in 2018 for the 2011 killings of Colford Ferguson and Roberts was jailed for life in 2015 for the double murder of Ricco Furbert and Haile Outerbridge.

But the trio argued that rules which allowed prosecutors to “standby” multiple jurors without cause went against their constitutional right to a fair trial.

Prosecutors were allowed to stand by an unlimited number of potential jurors without a reason, but the defence were only to allowed to make three challenges without cause.

The procedure was ruled unconstitutional by Chief Justice Narinder Hargun in a case last year and legislation to revise the jury selection process to allow an equal number of challenges has been introduced.

But Roberts, Brangman and Smith-Williams argued their cases had been tainted by the old process.

Mr Pettingill said the ruling highlighted a fundamental issue of “inequality of arms” in jury selection where the Crown had a disproportionate influence over the make-up of the jury.

He argued that once the Crown went “over the line” and rejected more than three jurors, there was an immediate risk that there would be a perception of jury stacking.

Mr Pettingill said the process was accepted as a practice and became a “matter of bad habit” that was missed by successive Attorney-Generals – including himself.

He added: “We are dealing with these three significant cases here – there may have been hundreds of cases in which more than three jurors were stood by.

“The fact of the matter is we simply don’t know.”

Mr Pettingill said each case should be viewed on its own merits.

He added that in some cases there were “agreed” standbys in situations where there was a clear reason to exclude a potential juror.

Jerome Lynch, the counsel for Smith-Williams, said the protection of the “finality” of trials was important, in this case the constitutional rights of the appellants should take priority.

He added: “We are dealing with the very fundamentals of a trial – that it should be fair and unbiased.”

Mr Lynch said that in cases where there was fundamental unfairness, or the appearance of it, the convictions should not be allowed to stand.

He added: “If the purpose of a Court of Appeal is to right wrongs, the recognition that this is a wrong should not be hampered in any way by ’finality’ where it can be rectified and justice can prevail.”

Mr Lynch argued the test to determine if an appeal should be allowed is if a casual observer would be left with the belief that the jury had been selected in favour of the Crown.

He added that prosecutors not having to give a reason for its decision to standby potential jurors contributed to the appearance of bias.

Mr Lynch said: “If it is for cause, say it is for cause. In our view, standbys for the Crown should be used sparingly, even with the current legislation.

“If it looks like every time the prosecutor says ’stand by’, and each time it happens to be a young black man, and there’s a young black man in the dock, it creates that sense of unfairness and bias.”

Victoria Greening, who appeared for Roberts, highlighted that the amended legislation said that earlier verdicts should not be overturned only because the Crown had challenged more jurors than the defence.

But she said it did allow appellants to argue that substantial injustice had been done.

Ms Greening added: “In my case, 33 jurors were stood by. That is a flagrant abuse.

“That would be an example where an appearance of bias is clear.”

She said the standby system gave the Crown an unfair advantage and tainted the process.

Carrington Mahoney, for the Crown, said the general practice was for prosecutors to standby jurors rather than challenge them to avoid discussions that would need to be held without jurors present.

He said in the Roberts case, 28 of the 33 standbys were done with cause as the potential jurors were connected to one of the two victims or the two defendants.

He added the 33 challenges amounted to five without cause – less than three per defendant.

Mr Mahoney said the Crown stood by six or seven jurors in the Brangman case, but four were later excused for cause because they were connected to one of the parties involved.

He added the “stand by” procedure did not remove jurors from the pool as they could be called again if a jury was not complete.

Mr Mahoney highlighted that not all communication between the Crown and the defence was caught on the court’s recording system.

Mr Mahoney said: “I know I have appeared in matters with Mr Lynch where a prospective juror comes in, let’s say a lady on a walking stick and she is shaking coming in.

“We may look at each other and you get a facial indication from counsel that there is no problem with a standby for this person.”

He also warned the court against retroactively overturning cases based on new legislation because it could create “widespread injustices”.

Mr Mahoney said cases have to be decided based on the law of the day and the standby rule had been in effect at the time of all three cases.

The hearing continues.

•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.

Jerome Lynch, QC (File photograph)
Victoria Greening (File photograph)
Carrington Mahoney (File photograph)