Justice group criticises gun DNA appeal
A justice group has criticised the Director of Public Prosecutions for her failed attempt to have overturned by the Court of Appeal the conviction of a man who admitted handling a gun.
The Bermuda Equal Justice Initiative said in a statement it was wrong for Cindy Clarke to have prioritised Kofi Dill’s matter, after a review of all cases that involved the DNA evidence of American forensic scientist Candy Zuleger, when Mr Dill, 46, pleaded guilty and did not seek an appeal.
It asked how much money was spent on the review and on the appeal.
Adley Duncan, the Deputy Director of Public Prosecutions, who argued the case, said the BEJI chose to “ignore and thereby downplay Mr Dill's active involvement in the [appeal] proceedings and his own alignment with the position taken by the DPP”.
Mr Duncan accused the BEJI, led by paralegal Eron Hill, of “leveraging press releases to frame negative narratives about the Department of Public Prosecutions” and, in doing so, undermining the “institutional integrity of this constitutional office”.
The Crown’s application regarding Mr Dill was rejected on Friday, with appeal justice Sir Gary Hickinbottom finding that when the defendant pleaded guilty in 2011, the Crown “had no reason to suppose that the evidence of” Ms Zuleger was “other than reliable”.
The judge wrote that “by his guilty plea, the appellant publicly accepted his guilt”.
Sir Gary noted the “apparent absence” of any other cases in Bermuda where the court had allowed such an appeal and concluded “that this is not one of the very rare cases in which this court should quash a conviction of a guilty plea”.
Mr Dill’s matter involved a loaded Rexio RJ Series .38 Calibre Special revolver that was recovered by police on December 22, 2010, in the Government Gate area of Pembroke.
He admitted handling the gun, but pleaded not guilty to handling a .38 calibre bullet, with the charge left to lie on file.
A 22-year-old female co-defendant denied handling the same firearm and the Crown did not proceed with the case against her.
Mr Dill was sentenced to eight years behind bars, which he has since served.
Ms Clarke reopened his case during the review she launched in the wake of the quashing last year by the Privy Council of the murder and attempted murder convictions of Julian Washington because of flawed DNA evidence.
The review covered all cases in which Ms Zuleger, of Florida-based Trinity DNA Solutions, provided evidence that resulted in a conviction.
Mr Dill’s was the second potentially “tainted” conviction to be identified, out of 273 cases.
Fresh analysis by an expert hired by the Crown found the samples from the gun he admitted handling were “of poor quality” and should have been deemed inconclusive.
Ms Clarke said in an affidavit for Mr Dill’s matter that “numerous mistakes and omissions in the analysis and reporting of DNA profiles in this case” were identified to her, hence the appeal.
The DPP’s review ended in August and the Governor rejected calls for an independent, systemic review the following month.
The BEJI said the appeal court ruling in Mr Dill’s case should prompt a rethink.
The group renewed its call for a commission of inquiry into all cases involving Ms Zuleger and said the authorities should urgently establish a dedicated legal fund for those affected.
“BEJI maintains that no internal or unilateral review by the prosecuting authority can command public confidence,” it said.
“The scale of the forensic collapse demands an independent, transparent and comprehensive evaluation of every case touched by Ms Zuleger’s evidence.”
The group claimed the DPP’s decision to appeal Mr Dill’s matter, rather than focusing on cases involving not-guilty pleas, was a “proverbial slap in the face of the hundreds of others who were affected by the faulty evidence of Candy Zuleger and Trinity DNA Solutions”.
However, Ms Clarke has explained that every case involving Ms Zuleger and Trinity DNA Solutions was looked at anew during the review, without reference to the DNA evidence, “to determine the viability of the conviction against each suspect on each charge” and then reviewers “considered what the defence case was in assessing the prospects of conviction”.
If the conclusion was that the jury or magistrate would convict without the DNA evidence, then the conviction was considered safe.
If the conclusion was that the jury or magistrate might not have convicted, the DNA evidence was sent to independent expert Barbara Llewellyn to be reviewed.
Mr Duncan said this week: “ … to the limited extent to which I can speak for the office, our office is satisfied that we conducted the review fairly and, in any event, within the terms of the methodology outlined to and implicitly approved by the Privy Council.”
Mr Dill, who now lives abroad, was represented by Legal Aid at the appeal court and swore an affidavit, claiming to have pleaded guilty because he assumed a jury would be convinced by Ms Zuleger’s evidence.
Sir Gary found that Mr Dill, in pleading guilty, was seeking to “do a deal with the authorities” to potentially reduce his sentence, ensure his girlfriend was not prosecuted and avoid being pursued for more serious offences involving the revolver.
The Gazette sought comment from the Governor for this article. It was not possible to reach Ms Zuleger.
• 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
• To read the Court of Appeal ruling in full, see Related Media
