Fixing the Bahamian Justice System

by Larry Smith

“(Trial by jury) is the most transcendent privilege which any subject can enjoy, or wish for - that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals." -- Sir William Blackstone

Does it matter whether Bahamian trials proceed with nine- or 12-person juries?

Some research says larger juries are indeed more representative. But in a small place like this, where there are inordinate delays in jury selection in an already dysfunctional court system, cutting the number of jurors makes sense.

The government recently introduced a measure to do just that - going from 12 to nine jurors in non-capital cases, reducing the number of peremptory challenges by lawyers to seven, and requiring a majority vote of six of the nine jurors to decide non-capital cases.

This amendment to the Juries Act is set for final debate in the House today. But the opposition is, of course, opposed. They say the measure is "useless" and argue that the government is "tinkering with a fundamental right". According to Fred Mitchell (who was a cabinet minister just a few months ago), the government should "simply cause speedy trials to take place."

The government's response is that the jury amendments are only a small part of what has to be done to remediate our judicial system and make it more efficient. And they point out that similar measures have been adopted and proven helpful in many neighbouring jurisdictions.

Juries developed in Europe centuries ago. They were based on the collective testimony of local witnesses to settle disputes. The common law jury system that we inherited was borrowed from the Danes by the Anglo-Saxons, who set up a system of courts in England about a thousand years ago.

Those early panels of leading citizens were able to bring charges, but did not produce judgements. That change came about after the Norman Conquest, when disputes came to be settled by juries of 12 sworn laymen. Later, the Magna Carta established this as an explicit right.

Many British colonies adopted the jury trial system, including the United States. But countries whose legal system derived from other traditions don't rely so much on juries today. In those countries appointed judges tend to make all the decisions.

Experts say that citizen-juries protect people from the state. The idea is that a panel of ordinary people like you and me can be expected to resist injustice by the authorities. However, the actual number of jurors is considered to be an accident of history. And even a 12-person jury cannot ensure representation of every voice in a community.

In fact, many common law jurisdictions (including the United States and most English-speaking Caribbean nations) have already opted to cut jury size in the interest of efficiency, although a number below six is considered undesirable. So the political hoo-ha over this specific issue is just that - hoo-ha.

The amendments are a direct response to growing public concern about crime and our faltering justice system. The government has budgeted $9 million more for the police this year and $1.2 million more for the judicial department and court of appeal to fund the appointment of new judges - something that is critical to resolving the backlog in our criminal justice system.

Unfortunately, the government's web site is woefully out of date on this subject. It does say that current law calls for the appointment of 12 supreme court and five appeal court judges, but there are only 10 supreme court judges on the bench presently, and two of them will be occupied with election court cases well into the new year.

Some interesting statistics on the administration of justice were recently discussed in parliament. For example, there are 114 murder accused currently out on bail (who have probably been in prison for over two years without trial and so were eligible for release). And many other murder accused are still on remand at Fox Hill awaiting trial.

Meanwhile, only two judges (Vera Watkins in Freeport and Stephen Isaacs in Nassau) are hearing criminal cases at the moment, and a murder trial generally takes about three weeks to complete. So if there are 300 such trials pending (as police prosecutor Keith Bell disclosed recently), it would take 900 working weeks to clear the backlog - or 17.3 years.

Assuming we had five full-time criminal judges working 48 weeks a year, it would still take take years to clear the backlog. And that's just for murder - the figures don't take account of other serious crimes clogging the courts like rape, armed robbery and assault. Prosecutor Bell says there are 400 armed robbery cases awaiting trial.

Then you have to consider the fact that prisoners who are held without trial for over five years are entitled to release on constitutional grounds. And the longer these cases wait, the more likely it is that evidence will not be available, leading to automatic acquittals - a further waste of time. Adding to the congestion is the requirement for re-sentencing in capital cases.

This is really an astounding situation that we find ourselves in today. And it is the result of accumulated neglect by all involved, coupled with abuse of the system by those who fear no consequences. Attorney-General Claire Hepburn told Tough Call that her department is in the midst of a triage review of backlogged criminal cases, because sometimes witnesses - and even defendants - are no longer available.

Lawyers say that only four murder cases were heard this year. If we continue hearing only four murder trials a year, how many of the currently accused are likely to be released? And more to the point, what would be the ratio of accused murderers walking free, per capita? This is a recipe for social breakdown.

The attorney-general admits to the harsh realities of the situation: "This is an area of deep concern to us and the PM has said we have to do something about it and that means we all have to work together on solutions."

Former attorney-general Alfred Sears also refers to a national crisis that requires a bipartisan approach. He recently called for the government to "get on with" the construction of a new supreme court complex - something that has been on the drawing board for years.

He also called on the government to give greater autonomy to the courts, to improve pay and perks for judges and to establish a system of legal aid for the poor. In fact, he went so far as to urge the government to release the report of a 2002 commission on legal aid and begin implementing its recommendations.

Frankly, we never considered Mr Sears to be a stand-up comedian. But he can't be serious to demand these measures so soon after being kicked out of office.

Meanwhile, the prime minister says he will declare himself a failure if, at the end of his term, there are 100-plus persons charged with murder who have to be released because he could not cause them to be tried within two years.

Both parties need to tone down the rhetoric and work hard to fix our paralyzed criminal justice system. The survival of the nation depends on it.

Comments

[Rick]

"Both parties need to tone down the rhetoric and work hard to fix our paralyzed criminal justice system. The survival of the nation depends on it."

Amen to that!

[C.Lowe]

THe majority of our politicians do not want the justice system to be efficient, as they would find themselves before it !
Of our 900 odd lawyers, find me a dozen with ethics or that do not collect retainers with no intent to perform or conclude a case.
The system is busted, but it does not impede their revenue streams.
You do not get justice in the Bahamas and the world knows it.
Anyone who has appeared in court knows it.
Do not hold your breath for reform, you will perish first.

[ex-repeat-tourist]

So basically what you're saying is that 50 or 60% of the people accused of committing murder between 2004 and 2007 are not locked up?

And the percentage for burglary, armed robbery, and sexual assault is probably even higher?

[larry smith]

An informed source responded to this article as follows:

1. A major cause of the backlog of both criminal and civil cases, but particularly criminal) is that cases do not proceed, after being set down for trial, because the prosecution or the defense ask for an adjournment because they are not ready.

2. So with no matters set down for hearing, the judge may be just sitting there doing almost nothing for the next 2-3 weeks. This could account for why only four murder trials were heard this year.

3. Damien Gomez's constitutional application re the government refusing to a)hold the judicial review commission in time and b) implement its recommendations, cannot get off the ground because Gomez cannot get a date to even get leave to bring the action.

Other lawyers have also been unable to get dates for constitutional actions they have filed.

In other words, nobody moves, nobody gets hurt.

4. One of the newer judges is hearing only one chamber's application in the morning, and one in the afternoon.

Consider that a judge's morning could run from 9.30 to 1, and the afternoon from say 2.30 to 4.30.

So the judge could be hearing as many as seven matters a morning, but has decided to hear only ONE in the morning and ONE in the afternoon, no matter what.

5. This could be because lawyers appear in court without a CLUE as to what they are doing, leaving the judge to lead them in their case, as if it were a law school exercise. This absorbs time without necessarily producing a result, because sometimes lawyers are told to go away and get their case together.

Still, these factors do not negate the arguments raised in the article, since if there are 300 murder trials outstanding, and 5 judges sat and heard a case ever 3 weeks, 48 weeks per year (assuming all trials came off as planned, it would still take years.