A threat to us all

There are matters that came to light in the high-profile cases of Frank Smith and Shane Gibson which are important for the public to consider regardless of one’s political persuasion.

In both cases testimony emerged that evidence was altered and in the Gibson case, testimony revealed that witness statements were taken together so as to have them coincide with each other – actions defense attorneys and observers contend were carried out to suit the government’s desire for a conviction.

Witness statements are forms of evidence that are foundational to a criminal case.

These statements along with other evidence obtained by police are what prosecutors evaluate to determine whether charges ought to be brought against an individual, so the integrity of such statements and the manner in which they are obtained is essential to the course of justice.

Though accusations of prosecutorial misconduct in these cases have garnered national attention due to the personalities involved, average Bahamians – often young inner city men – levy similar complaints that can fall on deaf ears in the public.

Because of the scourge of crime and the natural desire of victims and the wider society to have violent crime reduced by any means necessary, Bahamians have little appetite for accused young men who maintain their innocence and allege misconduct or abuse of power on the part of police or prosecutors.

What we consequently fail to appreciate is that if prosecutors or police act outside of the law or established procedures it is a threat to us all because to the extent that this occurs, anyone can be at risk of losing one’s freedom should he or she fall victim to a false accusation of criminality, or become the target of political retribution.

If, for example, you are a political or social activist or a person who a government might have an interest in silencing or making an example of, how difficult might that be to accomplish if those charged with critical responsibilities in the justice system fail to act appropriately?

Because Smith and Gibson are members of a major political party beset by rumors of corruption, it can be hard for some Bahamians to see why this matter should matter to them without them at the same time believing that to focus on the issue would be to champion the innocence of men they do not support.

In an interview with Perspective, Smith and Gibson’s lead attorney Keith Desmond (K.D.) Knight, QC, gave his view on why the issue of prosecutorial conduct is bigger than any one personality not only in The Bahamas, but in all jurisdictions.

“The ghetto youth do not have a lawyer who will spend the time and hours combing through evidence because he cannot afford to pay for it,” Knight said.

“People say things against them, no thorough investigation is made, what is said is just accepted and the young person goes to jail and is sometimes even encouraged to plead guilty to get it over with.

“So it is important that the police act in accordance with the law, practice and proper procedures because poor people are the ones who are going to suffer for the most part.”

The Jamaican Queen’s Counsel pointed to examples in the United States where after years of imprisonment, persons are freed as a result of DNA evidence that exonerated them.

“You have lawyers in the United States who all they do is to try to reverse these wrongs that were committed,” Knight pointed out.

Smith and Gibson were charged amidst a fevered pitch of anticipation that the Minnis administration would make good on its key campaign pledge to bring to justice members of the previous administration who were found to be involved in corruption.

Knight, who served in ministerial capacities including minister of national security and justice, asserted that a focus on corruption by governments must be wholistic and that instances of prosecutorial misconduct can also be forms of corruption.

“If the government is bent on rooting out corruption, then it must be corruption at all levels,” he added, “and a government ought to do everything it can to root out corruption because corruption distorts the economy, distorts the justice system and it affects the performance of a government.”

Knight insisted that if those involved in wrongdoing in the cases are permitted to continue in the positions they hold “then nothing good would have come out of this”.

“For example, [Assistant] Superintendent Debra Thompson said what was done in the Gibson case they do all the time,” he reminded. “So if we do it all the time, what is going to happen?

“Is there going to be a blind eye turned to it and it continues?”

“Young men are imprisoned because of these tactics”

The conduct of the prosecution in the Smith and Gibson cases “leaves a lot to be desired and it raises a lot of questions” according to Attorney Ramona Farquharson who disclosed to Perspective her experience of prosecutors “not acting in good faith”.

“Prosecutors have a duty to the court and that means not just to prosecute someone but to act always in good faith,” she said.

“It has been my experience and indeed the experience of many of my colleagues at the criminal bar that some of them do not always act in good faith in terms of disclosure.”

That disclosure, Farquharson noted, can include the prosecution’s knowledge of evidence that might in some instances exonerate the accused.

“For instance fingerprinting evidence,” she explained. “They may have evidence that exonerates your client and again, you would not be informed.

“It is so sad that so many of our young men are imprisoned because of these very tactics that have been taken but because it is not what persons would consider high profile, it goes unnoticed and there is no rectification for it.”

Rectification, as intimated by Knight, must come in the form of accountability, but pushing for justice through the court system is something Farquharson said many exonerated young men do not opt to pursue.

“Once [an accused] is exonerated, let’s say they go through a trial and it is unearthed that there was improper conduct on the part of the prosecution or the police, we find that they don’t wish to pursue the matter in bringing a claim against the police for what they have suffered,” she pointed out.

“Often times these young men are held on remand for two to three years,” Farquharson continued. “That’s your liberty, that is your life but once they are set free they don’t wish to look back, they don’t wish to be bothered and many times they don’t have the financial means within which to fight.”

Police investigations in The Bahamas are directed by judges’ rules which set out guidelines for police interrogations.

Farquharson is of the view that The Bahamas ought to move further to establish in law the parameters and guidelines of interrogations similar to what was done in the United Kingdom though its Police and Criminal Evidence Act.

“I have witnessed where officers are trying to, what they would call ‘iron out the kinks’, [and] are putting into witness statements information that they got out in the field or from other persons in order to tidy up their case which is totally improper,” she indicated.

“This is why we need proper legislation to govern this because as defense counsel we won’t have sight of the [police] file that goes up to the AG’s office.

“We don’t get anything except for a detention record,” she pointed out, “so let’s say if a memo comes back saying, ‘listen, go back at that witness and question that witness again because his statement doesn’t accord with this witness’ and if they go back and that witness does not agree they take them off of the list [of witnesses] – we don’t get that information.”

Expounding further, Farquharson asserted that, “This is where we say the improper conduct comes into play because the Crown would very well know that albeit they put four witnesses here that say they saw you commit a murder there are one or two others who said they were present and did not see that and saw somebody else.

“So when you get this voluntary bill of indictment it is somewhat cleaned up and sanitized and that is what you are given and that’s what you have to deal with.”

Last week, Damian Gomez, QC, who was part of Gibson’s legal team, announced an intention to file a complaint to the Police Service Commission against Police Commissioner Anthony Ferguson and lodge a complaint with the Bar Association in respect of the conduct of persons in the case.

In response, Attorney General Carl Bethel branded Gomez’s remarks as “intemperate and dangerous”, stating that “a civilized society cannot long survive if the administration of justice and the administrators of the system of justice can be subjected to such apparent threats aimed at their continued employment as members of the Bar or as law enforcement officers”.

No comment by the AG meantime has been made on matters of prosecutorial conduct revealed in the Smith and Gibson case given the level of national attention both cases have garnered, and the extent to which such matters are being viewed by the AG’s office as a function of the course of justice.

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