Editorial | A right to bench trials

Were it true, it would confound this newspaper that prosecutors would wilfully frustrate the wish of accused persons to be tried without juries. That is unless they have compelling evidence that judges slated to hear the cases were likely to behave corruptly.

Expressed differently, such a posture would suggest, and only make sense, if the prosecutors have real and legitimate fears that the selected judges would pervert the course. Should that be the case, the proper course would be to report these judges to the relevant bodies for them to be investigated and appropriately sanctioned.

Or, viewed from its widest perspective, an a priori effort by prosecutors to deny bench trials could reasonably be interpreted as their systemic distrust of, or lack of confidence in, the island’s judiciary. That would amount to a national crisis in the justice system that needs urgent attention.

We make these observations in the context of last week’s suggestion by Tamika Harris, president of the Advocates’ Association of Jamaica (AAJ), that the island’s prosecutors frequently oppose the requests of defendants who opt for jury trials.

“The Advocates’ Association of Jamaica cannot remain silent in the face of what appears to be a troubling trend: the exercise of prosecutorial discretion in a manner that raises the possibility of shopping or searching for a tribunal more likely to convict,” Ms Harris wrote in a letter to The Gleaner.

Paula Llewellyn, the outgoing director of public prosecutions (DPP), did not outrightly reject the suggestion that her office, not infrequently, stood against bench trials. She emphasised instead the DPP’s primary focus of seeking justice for all parties, including victims of crime.

DEEPENING DEBATE

This issue comes against the backdrop of the deepening debate over whether Jamaica should end jury trials, and move to judge-only hearings, given the increasing difficulty of courts to empanel juries for cases.

The island’s chief justice is a strong advocate of bench trials, frequently complaining of how the wealthy, well-to-do and professional classes shirk jury duty, leaving the burden to fall disproportionately on the working class and the poor.

There are no readily available universal data on the number of summonses issued annually to potential jurors and how many actually turn up. However, there is plenty of anecdotal evidence from assizes across parishes of too few jurors being available for either the sessions to start, or for cases to be heard. This delays hearings, contributing to a backlog of cases and the slowing of Justice Sykes’ campaign to bring Jamaica’s courts in line with global standards for the clearance of cases.

The chief justice – who regularly reinforces the point that Jamaica’s constitution doesn’t guarantee jury trials, but fair trials within a reasonable time by lawful and competent courts – believes that moving to judge-only hearings would increase efficiency in the courts, causing a more timely delivery of justice, without any loss of quality.

Neither would it necessarily mean, Justice Sykes has argued, which some defence lawyers feared, greater levels of guilty verdicts. While the disaggregated data are not frequently published, the chief justice has said that court statistics show that acquittals are more frequent in bench trials than when cases are heard by judges with juries.

The Gleaner is not unsympathetic to Justice Sykes’ position, but has recommended that the issue be fully ventilated in hearings by a parliamentary committee. Which the returning justice minister, Delroy Chuck, who dithered for too long on the question, should cause to happen as a matter of urgency.

POWERFUL INCENTIVE

Mr Chuck has a powerful incentive to act, notwithstanding his own, and Ms Llewellyn’s, stout defence of jury trials. The Advocates Association, whose members are primarily lawyers who appear at the criminal bar, is in favour of an adjustment to the law to make it easier for their clients to opt for bench trials.

Presently, there are some cases, such as those before the Gun Court and anti-gang hearings, where the default is bench trials.

However, in most other matters the standard is for trials with jury, unless the defence and prosecution, in accordance with Section 11A of the Criminal Justice (Administration) Act, jointly agree, in writing, to a trial by a judge alone. The AAJ’s Ms Harris suggested that The DPP’s office regularly declines to consent, thus denying accused persons’ speedy trials even as they languish in lock-ups.

The logic of such a posture defeats this newspaper, unless the prosecutors understand something about the Jamaican judiciary, to which the rest of us are not privy.

The philosophical foundation of trial by a jury of one’s peers, as The Gleaner understands it, is that it allows the lived wisdom of ordinary folk to act as a buffer against the weight and power of the state in judicial proceedings. In other words, its intent is to provide insulation for persons accused of crimes against potential overreach by the powerful State and its agencies.

But in a democracy, where it is constitutionally permissible, and with a judiciary that acts in accordance with the law and high principles of its role, an accused person ought to have the unfettered right to choose a bench trial.

As Ms Harris stated: “If an individual, whose liberty is at stake, chooses to forgo a jury and face a judge, that decision should be respected – subject only to judicial oversight to ensure it is informed and voluntary.”

In that regard, The Gleaner agrees with the AAJ’s suggestion for an amendment to the law allowing accused persons to unilaterally select to be tried by a judge alone. Or, if a jury cannot be held within a specific time period, for an automatic default to a bench hearing.