Prosecution case looks weak should Vybz Kartel retrial goes ahead

The results of the original conviction we can put aside for now. The decision in 2020 of a three-member Court of Appeal, based on the original case, is a more pressing issue today. The three Court of Appeal judges, Frank Williams, Dennis Morrison, and Patrick Brooks, agreed with the lower courts to uphold the conviction of Adidja Palmer. That court decided on the same inconsistent evidence and did not overturn the lower court's blatant miscarriage of justice in the defendant's conviction. A tainted jury in most judicial systems is cause for an immediate mistrial. The Adidja Palmer case should not have continued with a tainted jury.

Vybz Kartel has been in prison for approximately ten years now, and the Privy Council, which Jamaica is considering removing as the final court of justice, has decided to quash the case, sending it back to the same Court of Appeals that upheld the decision of the original conviction. Is this decision by the Privy Council a slap in the face of our justice system?

At the appellate level in Jamaica, with the evidence presented, the issue will not determine Vybz Kartel’s guilt or innocence but rather a technicality on whether he is freed from imprisonment or retried. Today, this major setback for the local justice system in the Privy Council’s decision is that this could have been avoided if a retrial had been called in 2014 instead of the final court of justice. A decision on Vybz Kartel’s guilt or innocence would have been decided then. One could now decipher that there was a rush to judgment. It is not impossible now to decide on guilt or innocence. The Court of Appeal in Jamaica must make one of two decisions: free Vybz Kartel or return the case to the lower court for retrial.

A retrial will be costly, and there are other issues with the trial in 2014 if a retrial becomes necessary with the Privy Council’s decision. The prosecution must carefully review evidence to determine whether they can win a new trial.   Contaminated evidence has to be removed from the list of evidence to prevent another appellate misstep. For example, they must remove the contaminated cellphone evidence; while in custody, the police made calls from Vybz Kartel’s cell phone. That's a significant problem. Further, they did not protect the phone's SD card; this is also tainted evidence. Additionally, Lamar ‘Wee’ Chow's (prosecution's prime witness) inconsistent account of seeing the dead body, then retracting his statement (he admitted later that he did not), is useless. 

Further, the missing body of the murdered victim, along with other circumstantial evidence, would not be worth entering a retrial. The evidence list in a new trial would look very different from the original one in 2014. A retrial is not a slam dunk.   The prosecution would want first to ascertain that a new jury can return a guilty verdict with the evidence they have. It may not be possible with the existing ones.

Additionally, with ten years of media and public deliberations on Mr. Palmer's guilt or innocence, the pool of people from whom a jury will be chosen for a retrial is also tainted. With such "dust in the face of Jamaica's Court of Appeal," would a retrial be fair to Vybz Kartel’s and the people of Jamaica?

Ten years is a lot of time taken from a person's life. The government, like it or not, will be considering whether it wants to afford a liability lawsuit for wrong imprisonment, pain and suffering, loss of revenue, etc. Or pursuing a trial that the people may not want, with less guarantee of conviction, can be a costly venture. 

The Vybz Kartel case is likely the most prominent in Jamaica's history: If Vybz Kartel goes free, will civil society decide to keep the Privy Council? Will questions arise regarding whether Jamaica is ready to take on its final court of justice or agree to accept the Caribbean Court of Justice (CCJ)? Academically, it sounds good to remove the Privy Council, but as of today, pundits will challenge our local appellate court's abilities to make fair and impartial decisions.  

With this technical decision, the Privy Council took the burden of proof from Vybz Kartel and placed it in the hands of Jamaica's justice system. This is unfortunate, but true.  In this situation, it appears that the London-based court is pleading with Jamaica and Jamaicans to retain them as the final court of justice. Is this a valid consideration?

The prosecution case looks bleak with all these very valid issues. Therefore, Mr. Adidja Palmer has a good chance of returning to Jamaica's streets with his sweet music.

Leo Gilling is a Diaspora Strategist & Engagement Advocate; and Chairman, Jamaica Diaspora Taskforce Action Network (JDTAN). Send feedback to leogilling@gmail.com.