by Larry Smith
In a wide-ranging interview on ZNS last week, former Bar Association president and top trial lawyer Wayne Munroe pointed out some of the critical failures of our criminal justice system while offering up some practical solutions.
But the unfortunate thing about what he had to say is that it has all been said before over the years in one form or another - and largely ignored by the political class, according to Munroe.
"It's a systems issue that we diagnosed well before 2002 and the system has only gotten worse since then," he told Jerome Sawyer, host of ZNS' nightly interview show, The Sawyer Report.
Defying conventional wisdom, he claimed "the fixes are not in the judicial system but in the executive system, on the prosecutorial side. It is not the courts that are to blame. We spend time making recommendations and governments come and go but nothing ever changes."
"We could have transformed our criminal justice system, but we haven't, and this has had an impact on me, on my family and on my country. Crime is committed against all of us, because you can't build a wall big enough to keep the criminals out."
He has concluded that only one of two explanations can account for this failure to act - either the politicians don't want to improve the system, or they will only make changes that they can get credit for: "Politically, unless you can take credit for something, you are unlikely to do it."
Among the issues Munroe covered in the hour-long interview were legal aid, judicial delays, double booking by lawyers, bail, and the death penalty. He argued that simple things could be done at little cost that would impact all of these issues.
For example, after the Privy Council's 2006 decision overturning the mandatory death sentence for convicted murderers in the Bahamas, Munroe said he and others called for legislation to define what types of murder were "death-eligible."
"But nothing happened," he said. "The government changed in 2007, and still there was no legislation. The Court of Appeal said in 2008 that we needed to legislate, but again nothing happened. The Privy Council said this year that the death penalty needs to be defined, which is done by legislation. The government said it would do something, but has delayed again. And we called for this five years ago."
He said the onus was on legislators to legislate, and once they do the courts will apply the law. There are believed to be over 200 outstanding capital cases in the Bahamas, and if politicians were serious about the death penalty, they would identify the barriers to implementation and then remove those barriers through legislation.
Among the obstacles he identified are the right of appeal beyond the Privy Council to the Inter-American Commission on Human Rights and to the Committee on the Prerogative of Mercy, which includes the Minister of National Security and the Attorney-General. The delays involved in these appeals often mean that convicts cannot be executed within the five-year rule set by the Privy Council.
"if you cut out the Inter-American Human Rights Commission then you should be able to execute the death penalty within three and a half years from sentencing," he said. "if you have a sensible system for the Prerogative of Mercy Committee, that appeal can be done in a fairly short period and would be the last hope of avoiding execution."
Another cause of delay in implementing the death penalty is the appointment of lawyers to represent convicts in the Court of Appeal. "If lawyers are not willing to do the job then time passes and you may not be able to execute," he said, arguing that the solution to this was sensible legal aid.
He said an effective system of legal aid could be organized through the Bar Association rather than by setting up a public defenders office within the government. "The only administrative cost would be for a retired judge to manage the system and vet it for quality control. if you are going to execute someone we should ensure they have proper representation."
The extent of legal aid would be determined by the budget available. It could be limited to the trial process or extended as far as the initial detention in a police station. The reality is that most people cannot afford legal representation yet all the wealth, power and resources of the state are arrayed against them.
"People can be in custody up to 96 hours without an attorney to advise them. For a large portion of society, when you come to trial the only way you are represented is by the Crown appointing a lawyer for you. Quite often people are astounded by what happens in the system - look at Ivan Johnson, who is being educated daily by his treatment. What would it be like if he could not afford counsel?"
As far as bail was concerned, Munroe said persons charged with serious offences are automatically remanded in the first instance, unless medical conditions warrant otherwise or a judge considers the evidence too weak.
"Before you get bail a judge will say 'when can this man be tried?' So if they were serious, and didn't want this man to get bail, they would schedule a trial. If this man is a career criminal why delay the trial? It would be better to try him and get him sentenced."
Incessant delays in the courts were the result of systems failures, Munroe said. "Time is a finite resource, so if you waste time trying hopeless matters then you don't have time to try those that have substance. This year four judges directed acquittals in a number of cases where there was no evidence. Those trials occupied six to eight weeks of court time, which is no longer available to try cases that do have sufficient evidence."
He said the problems stemmed from a lack of leadership in the Attorney-General's Office and poor evaluation of cases being sent to trial. "Prosecutors decide what cases to bring and ultimately that is the responsibility of the attorney-general. In recent memory we have not had an AG who was conversant with the criminal justice system from actual experience of it . That is most unfortunate when serious crime is on the rise."
The fixes that are needed are not in the judicial system but in the executive system, he insisted. Magistrates set 30 or more cases a day and may still be finished by 1pm because of the inability of cases to proceed, often because a witness does not appear.
"There is a need for some 10,000 witnesses across all of the courts on New Providence every day and you have two or three policemen serving all of these summons. Why should the police be serving summons? At the police station you should be given something that says come back on this date for your summons. That's terribly simple, but if you never been in the system it might not occur to you."
He said defence attorneys often double booked cases because they expected adjournments, "and if I have one case for the day and it doesn't come off, it means that one poor client has to pay my fee for the entire day, which would not be fair, right or just."
The way to fix this, was to set a "date certain" for trials, so that everyone would know that the scheduled case would proceed on the appointed day. If the prosecution was not ready to proceed the case would be dismissed and if the defence was not ready, the case would still go on. Currently, most cases are adjourned four or five times, he said. If trials had to proceed, lawyers would be forced to change their behaviour.
According to Munroe, "the judge and jury are there every morning, but whether there is a case ready to go is another matter. So you have all of these problems, and they are compounded when you have unrepresented people who might not know their rights until they ask in court and a judge has to assist them. It's like pulling teeth sometimes to get the prosecution to produce the simplest thing. All of this leads to delay but it's driven by the system, not the judges."
It was the failure of the political class to improve the criminal justice system over the past 20 years that led Munroe to offer as a candidate for the newly formed Democratic National Alliance - a party with no track record that says it is committed to fixing the system within 18 months of taking office.
"When I looked at the two major parties, these were the same people who I had been interacting with since 1990 when I was called to bar. The only person who has moved off the scene was (former prime minister) Sir Lynden Pindling, so if they were not responding from 1990 to 2010 why would joining them make a difference?" he asked.
"They never showed me the simplest respect of taking my work seriously. I found the DNA had a mindset and a vision that would be most likely to implement what we are seeking to do. I am not content with how things are going so my choice was made as a matter of necessity. We are reaching the point where we are about to lose this country and we have to do something to stop it."