Vybz Kartel
RESIDENT Magistrate Maxine Ellis is to rule on August 28 on a submission by defence attorney Valerie Neita-Roberts for the trial of Livingston Cain— the juror in the Vybz Kartel (Adidja Palmer) murder trial accused of bribing his colleagues — to be halted, citing abuse of the judicial process.
Cain is being tried on five counts of attempting to pervert the course of justice and one count of conspiracy to pervert the course of justice following allegations that he was captured on a phone recording offering the jury foreman in the Kartel murder trial $500,000 for a not-guilty verdict.
He is also accused of approaching other jurors and promising one of them that he would “take care of him” if he returned a not-guilty verdict.
However, when the trial resumed on Wednesday Neita-Roberts made an application for the matter to be stayed on the grounds that there was an abuse of process and that her client would not be given a fair trial.
“The basis of the application is on the failure of the prosecution to retain and secure the BlackBerry smartphone on which the alleged recordings were made,” she said.
“The absence of the phone has created a severe difficulty for the defence which is unable to examine the phone through their expert and to retrieve material that would affect the credibility of the witness,” said the defence lawyer
She said, too, that the situation was compounded by the non-provision of the telephone record which the court had ordered and had not received from Digicel, which had indicated that it could not provide the information as it is unreliable, given the length of time that had passed since it was stored.
But Neita-Roberts, citing local and international laws, argued that the police were duty-bound to retain and secure the phone exhibit and that a failure to do so on their part had led to the disappearance of the phone, and described their actions as “extremely suspicious”.
“It’s not that it was lost from the police but the serious fault lies in them returning the implement to the witness for her own personal use.” she added.
Furthermore, Neita-Roberts said it was customary for the police to retain the exhibits and to safeguard them and pointed to the fact that they have seized her client’s phones and have indicated that they would not be returned to him until after the trial.
According to Neita-Roberts, the information that was retrieved from the phone and stored on a compact disc by the prosecution could have been manipulated or edited.
As it relates to the phone record, she said it was needed by the defence to verify instructions that she has received from her client and to assess the credibility of the witness, while pointing out that the defence had made the request for the phone recording long before the six-month “reliable storage time” had elapsed.
“We must preserve the justice system, and it can’t be conviction at all cost. The trial must be fair or don’t try at all,” she said.
Prosecutor Cathy Pike, in response, conceded that the police had a duty to retain and safeguard exhibits but said the Crown was not relying primarily on the recording but on the testimonies of the witnesses.
In addition, she said the prosecution did not think that the defence would have requested the phone recording, as that was the witness’ personal information.
She also informed the court that the witness had e-mailed a copy of the recording to herself and offered to make it available to the defence as an alternative, which the defence accepted but pointed out that it would not solve their problem as they needed the actual phone to analyse its data.
Commenting on the request for the stay of execution, Pike advised the magistrate that while it was important to consider whether or not the accused would be given a fair trial, she also has to rule in a manner that is also fair to the prosecution.
“Fairness cannot be one-sided,” she said.