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."
Munroe was called to the Bar in 1990 and has been calling for reform of the criminal justice system ever since. He pointed to the high level of frustration among lawyers like himself who had given freely of their time over the years to study the system and recommend improvements.
"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."
"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."
The Bahamas has a serious crime problem and it is indeed no secret. Crime has crippled our society and it threatens the very fabric of our Bahamian Society and the foundation of the Bahamian Family. Fixing the Criminal Justice System begins in the home in my opinion where Parents and Guardians instill character and a sense of right and wrong in their children. Consequences for one's actions must be instilled in our children. The Bahamian Society MUST get its house in order with respect to this issue or suffer tremendously in all facets of our daily lives as we presently are. May God guide us and give us the strength and wisdom to " Fix Our Criminal Justice System " God Bless and Protect The Bahamas and Her Wonderful People.
Posted by: Dr. Julius Theophilus | July 19, 2011 at 09:01 PM
The system is broken and has been broken for a long time. I am of the opinion that lawyers are the problem.They have beaten and rape lady justice for so long, all attempts at resuscitating her has failed. If the lawyers who dominate the political field can get a system fix that they are suppose to be experts in, how in the world they are going to fix education, health or any other area. We need more practical people in politics.
Posted by: Eddie | July 20, 2011 at 10:46 AM
What hogwash! Why didn't Mr Munroe try to "fix" the system when he was president of the Bar Association? Why didn't he implement the legal aid system when he had the chance, as president of the Bar Association? Why is he so complacent in ridding the legal community of corrupt lawyers? Why do lawyers charge so much for doing so little? And they get paid whether they perform or not. Mr Munroe disgraced the judicary when he was an acting magistrate years ago. He chose to run for the DNA because he and Bran were roommates in college, not because of ideology. He fails to mention that too many lawyers take advantage of the dysfunctional legal system by intentionally and clandestinely stalling cases. Mr Munroe and his ilk are the problem with the legal system.
Posted by: Illuminati | July 21, 2011 at 10:47 AM
summary:
Inasmuch as this government and the culture that supports it has become over time a murderous oppressor of people and nations and at the same time continue to engage in high crimes and misdemeanors against all of the world's inhabitants, I cannot in good faith consent to its rule.
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Consent of the Governed
At one time in my life when I was younger and more trusting in those leaders who ruled the nation, I consented to the government’s handling of social, political, and economic affairs and my role in such activities. I impliedly accepted the idea that authority vested in the agencies of government was somewhat sanctified in that all of the people must for the benefit of the world and in pursuit of peace recognize law and public policy standards as outlined by all appropriate agencies of government.
Inasmuch as government has now become unduly oppressive, murderous and inhumane (as evidenced in part by an uninterrupted string of local and global atrocities and crimes against humanity over the past century) I can no longer give my consent to be ruled by the illegitimate authority that calls itself the United States of America.
From my personal experience I find that the criminal and civil laws of this nation (and the cultural standards that support them) are impossible to honor in many instances because they are secret in their making, arbitrary in their enforcement and insufferably oppressive in their application. Such obscure laws, standards and secret rules are used by political fiat to imprison and to destroy lives of people in a kind of game where prosecutor, defense attorney, judge and citizenry all conspire to ruin, imprison or kill the individual for alleged offenses that do not approach in severity the crimes and unlawfully brutal tactics used against them by their detractors; neither do the actual offenses alleged against a person generally compare in degree of severity to the crimes committed against him by the accusers. Those government agents (and their paid killers in uniform or in the private sector) who seek to selectively apply their contrived and illegitimate rule of law against unsuspecting citizens now advance against the people with unwarranted malice, tortuous brutality, and advanced cruel weaponry.
No free man who yet has an ounce of will power and self-respect may therefore submit to the completely out of control government of the United States of America. Any judgment or levy against any citizen or resident of the United States by any current officer of the three branches of government, or by any administrative agency thereof, is by definition corrupt, devoid of legitimacy and intolerable to men and women of good conscience because those who (with evil intent, malice aforethought and wickedly selfish heart) wield the bloody ax of law against our people are the real criminals far more dangerous and threatening to humanity than the millions of men and women imprisoned under Nazi like orders of this hideous regime.
In good conscience and by the remaining will power afforded by Providence I do not give my consent to be ruled by the present United States government because it is a global murderous and criminal enterprise bent on world inhumane domination at any cost.
geral sosbee
Posted by: geral | August 17, 2011 at 08:51 PM