Wednesday, Jun 26, 2019

BOTCHED

If the only takeaway from the botched prosecution of former Public Hospitals Authority (PHA) Chairman Frank Smith was the irreparable harm done to his reputation that would be bad enough.

However, the demonstrable recklessness of a government that insisted on investing the people’s time and money on a case that appeared doomed to fail from the start, in what appeared to be a grasping need to back up campaign rhetoric, is, frankly, frightening.

After 18 months from arraignment to acquittal, Chief Magistrate Joyann Ferguson-Pratt threw out the corruption charges against Smith on Friday, after detailing why he had no case to answer.

Ferguson-Pratt said the prosecution failed to prove that Smith received $60,000 in bribes from Barbara Hanna, the owner of Magic Touch Cleaning Company, from 2016 to 2017.

Hanna alleged that she met Smith in 2016. However, the defense said that this meeting had to have taken place in 2015, as the PHA board resolved to award the contract on December 23, 2015.

Ferguson-Pratt said, “There is not a scintilla of evidence to support the fact that there was a meeting between Barbara Hanna and the accused prior to the award of the contract.”

The judge scorched Hanna as a witness and also questioned the behavior of two government ministers, Minister of Health Dr. Duane Sands and Minister of National Security Marvin Dames, with regard to their involvement with Hanna prior to the matter being reported to the police.

It is understood that Smith is preparing to sue the government for malicious prosecution.

And he is well within his rights to do so.

To be clear, what the Minnis administration has undertaken, whether or not it agrees, is the criminal prosecution of its political opponents shortly after replacing them in office — a dangerous prospect in countries with the clearest of delineations between the executive and public prosecutors.

The Bahamas is just warming up to this concept.

So much so that it was only after Smith, a former St. Thomas More member of Parliament; Kenred Dorsett, the former minister of the environment and Southern Shores MP; and Shane Gibson, the former minister of labor and National Insurance and Golden Gates MP, were charged before the courts on allegations of wrongdoing in public office, that the constitution was changed to reflect independence in prosecutions.

All three of these men are members of the Progressive Liberal Party (PLP).

All three of these men served prominently in the last administration.

The trials of Dorsett and Gibson have yet to start.

But the way that Frank Smith’s trial fell apart, and the revelations unearthed before it did, should be instructive as to why it is imperative to make sure there is incredibly strong evidence when dragging your political foes into court.

Knowing the passions this would elicit, and the stakes involved, the government should have been certain what it alleged could stand up in a court of law.

It did not. And the aftermath has left egg on the face of the Minnis administration and serious questions about the administration of justice in The Bahamas.

Hanna was a nightmarish witness from the start of her testimony.

During her evidence in chief, she admitted to borrowing money from Smith to buy cleaning supplies for her company one month before she was awarded the contract.

Hanna also claimed that she only went to police after she received persistent calls from Assistant Commissioner Paul Rolle, who heads the Anti-Corruption Unit.

She demonstrated that she was actively avoiding the police.

She claimed she was testifying against her will.

She evaded questions about her legal financial relationship in the form of loans through Smith’s companies, despite documents outlining this relationship being presented to the court.

She said she did not pay herself in order to allegedly pay Frank Smith, but her bank records show she was paying herself a salary.

Hanna also admitted to “warning” Frank Smith to “be careful, they are out to get” him, after she was reportedly in contact with government officials.

She then had what her doctor described as a stroke during the course of the trial.

Minister of Health Dr. Duane Sands admitted during the course of the trial that Hanna donated to his political campaign and her son worked on that campaign.

Sands admitted that he spoke with Hanna several times and, though he told her to report the matter to police, he still told her to apply for another PHA contract, though he didn’t promise her anything.

Sands admitted to contacting Minister of National Security Marvin Dames on Hanna’s behalf because she was reportedly afraid to go to the police.

Dames admitted to meeting with Hanna, and also referring her to the police.

Hanna, however, demonstrated she was not interested in meeting with police, and feigned not knowing why she was speaking with investigators.

The government watched this slowly self-destructing case under the watch of Edward Jenkins, QC, unfold, yet at no point sought to put a stop to it.

Ultimately, Ferguson-Pratt found, “There are inherent inconsistencies in the evidence of Barbara Hanna which are at odds with the allegations and instances where her evidence was out of reason and all common sense.”

She continued, “Quite apart from inherent inconsistencies, conflicts as mentioned, exist between every witness, particularly in circumstances where harmony is expected. Consequently neither a single witness or a combination of witnesses’ evidence commands complete trust and confidence.”

That the magistrate didn’t find two sitting government ministers able to command “complete trust and confidence” when under oath, is a stinging indictment.

That, perhaps, pales in comparison to what occurred with the call logs in this case.

Ferguson-Pratt ruled that the call logs were inconsistent with the billing records.

The prosecution sought to lead that Smith was repeatedly calling Hanna, according to the call logs. However, the billing records showed the reverse to be true.

The judge said that this was “manipulated” to appear that Smith was reaching out to Hanna.

“I am satisfied that it is reasonable to find that the call logs produced were likely manipulated to create the false impression that the accused [was] persistently calling Barbara Hanna, when, in fact, it was the reverse,” she ruled.

“The calls to the accused are at odds with allegations. And the manipulation serves to gravely undermine the prosecution’s case.”

It boggles the mind that a judge would find that evidence in the custody of the state was “manipulated” to support the prosecution’s case.

It requires future examination and an in-depth explanation from all those involved in the prosecution of this case.

Sands and Dames should know better

Dr. Duane Sands is one of the brightest Bahamians to enter politics. He is a heart surgeon, indisputedly at the top of his field in this region.

He is well-respected for his skill and intellect. He has been financially successful, according to his public disclosures.

However, he seems to have long-harbored a desire to be in frontline politics.

He ran for the Elizabeth seat three times, ultimately being swept into office in the 2017 FNM wave.

Why he would entrench himself so deeply in this matter, when he has finally realized his goal of making nationwide change through Cabinet, is unclear.

However, he must have known that Smith’s attorneys would have learned of his interactions with Barbara Hanna prior to Smith’s trial.

He could not have somehow imagined that a capable legal defense attorney wouldn’t question why he would approve a contract for Hanna’s company for over $1.8 million, without the approval of the PHA board, while the last contract she was awarded was at the heart of an ongoing criminal court case.

He has yet to publicly respond to the ruling or Progressive Liberal Party (PLP) Leader Philip Brave Davis’ call for him to resign or be fired, though Davis’ call is hard to take seriously when he was dismissive of all manner of ethically ambiguous conduct by members of the Christie Cabinet in its last term in office.

Davis has also called for Dames to resign.

This seems like a reach.

It was unfortunate for Dames, a former career policeman who is likely the most effective and qualified national security minister The Bahamas has ever had, to involve himself so deeply in the pre-police interaction with Hanna, but it does not seem to rise to the level of conduct that would require leaving office.

He has since laughed off Davis’ resignation call.

But it is hoped he’ll act more prudently if contacted by his Cabinet colleagues to get involved with anything with a hint of such sordid spectacle moving forward.

A blow to anti-corruption efforts

As noted, Hanna had gotten loans from Smith’s private company during the same time she claimed she was making the extortion payments.

Should Smith, as chairman of the PHA, have been involved in a private financial arrangement with a contract-holder under the authority he had oversight of?

No.

But until the government makes such questionable behavior punishable by statute, that is more of a question for the court of public opinion than a court of law.

If the Minnis administration finds Smith’s conduct in office unpalatable and outside of what it determines is normal and sound, then it should use the power of Parliament to make such behavior illegal.

The government is uniquely positioned to do this.

It is, in fact, squandering the mandate it received on May 2017.

Transparency International recently pointed out that though the Minnis administration came to office talking tough on corruption, it has not done enough in the way of putting legislation with teeth in place to stem it.

The full implementation of the Freedom of Information Act, and the passage of The Integrity Commission Bill would go a long way in the corruption fight.

But though the term seems young, the legislation requires much effort and public education beyond passage to make them effective.

The proposed groundbreaking integrity commission legislation comprehensively details acts of corruption, including the behavior of public officials with respect to the award of contracts and soliciting or accepting any personal benefit or providing an advantage for another person by doing an act or omitting to do an act in the performance of his or her functions as a public official.

The law would enable anyone with knowledge of alleged corruption to report it to the Integrity Commission.

In addition to establishing the Integrity Commission, the bill is intended to promote and enhance ethical conduct for MPs, senators and other public officials.

The government is now appealing Ferguson-Pratt’s ruling.

We’ll see what comes of that.

We’ll see what comes of the other cases, should they proceed to trial.

But so far, the government has embarrassed itself, two sitting ministers, the police and dragged Frank Smith through the mud internationally.

The Bahamian people have gained nothing from what has been ventured so far. And stand to lose much more.

Juan McCartney

Broadcast Editor at The Nassau Guardian
Juan McCartney is the broadcast editor at the Nassau Guardian.

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