Defence attorneys representing dancehall artiste Vybz Kartel and his fellow murder convicts emerged from the Appeal Court with broad smiles yesterday after being granted permission to introduce fresh evidence to challenge their 2014 conviction.
Court of Appeal President Justice Dennis Morrison, along with justices Patrick Brooks and Frank Williams, ruled that the court would be allowing attorney Bert Samuels, who is representing entertainer Shawn Campbell, otherwise called Shawn Storm, to tender into evidence a statement from the key witness, Lamar Chow, given to police on August 24, 2011, that he had arrived at Kartel’s house at 8:00 pm, which is contrary to evidence he had given during the trial that he had arrived about 5:00/ 5:30 pm.
The court is also allowing an affidavit from attorney Kymberli Whittaker accompanied by two statements from jurors who were involved in the murder trial.
The incarcerated deejay, whose given name is Adidja Palmer, was sentenced to life imprisonment in 2014 for the murder of Clive “Lizard” Williams on August 16, 2011 at his (Kartel’s) home on Swallowfied Avenue, Havendale, St Andrew.
Campbell, Andre St John, and Kahira Jones were also convicted for the murder.
“Discrepancies in respect of the alleged killing of Clive Williams represent a fundamental deficiency in the prosecution’s evidence,” Samuels said in court yesterday.
“That being so, an order for retrial would serve to give the prosecution another bite at the cherry. In other words, give an opportunity for the prosecution to cure that deficiency, this being one of the major considerations as demonstrated by the authorities against an order for retrial,” Samuels added.
According to Samuels, the statement in question forms part of the material before the court, which together totally destroyed the credibility of the main witness.
He pointed out that the main witness, while being cross-examined during the trial, indicated that he had left Portmore for Havendale at 5:00/5:30 pm, which is the same time he said he had arrived at the house in Havendale.
“Mr Chow weakens his credibility as he puts himself at two places within the same time, being unsure about what exactly took place around 5:00/5:30 pm,” the lawyer said.
“In addition to the discrepancy in relation to Chow’s 5:00/5:30 whereabouts issue, the witness was further discredited when he gave this statement only eight days after the incident when the matter should be fresh in his mind, which renders a severe blow to the prosecution’s timeliness of events,” Samuels argued.
Attorney Whittaker’s affidavit and statements by the two jurors were collected by the prosecution as part of evidence in the corruption trial of juror Livingston Cain.
That trial is before the Kingston and St Andrew Parish Court.
Cain was arrested and charged following allegations that he offered the jury foreman $500,000 to return a not guilty verdict in favour of the four men and also tried to persuade other jurors to return a not guilty verdict.
Queen’s Counsel Valerie Neita-Robertson, who is representing Kartel, said the jurors indicated in the statements that the foreman had played the alleged recording of Cain trying to bribe him for all of the jurors in the jury room.
Consequently, Neita-Robertson argued that the trial judge should have discharged the jury once the allegation was brought to his attention as the panel would have been provided with material that contaminated it and made it incapable of sitting.
“This is relevant to the issue of a fair trial,” she argued.
She also said that the prosecution had erred in their decision not to inform the defence so that it could have made the necessary application.
Senior Deputy Director of Public Prosecutions Jeremy Taylor had asked the judges not to accept the fresh evidence, but only one of the applications to adduce evidence was refused.
The judges ruled that they would not accept fresh evidence in the form of voice notes and video posted on social media as they could be used to argue a case for adverse publicity and to make arguments as to why a retrial would not be appropriate.
The appeal, which will begin next Monday, is now scheduled to run for a week, and each appellant will be given one day to air his case.
Taylor also has one day to respond.
Queen’s Counsel Tom Tavares-Finson also represents Vybz Kartel, Oswest Senior-Smith is represents St John, while attorneys Robert Fletcher and Donahue Martin are representing Jones.