The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

“HANGING is over” was the consensus of three Court of Appeal judges presiding over yesterday’s hearing of a man seeking to be exonerated of a conviction and death sentence for the paid execution of his friend.

The justices overturned Anthony Clarke Sr’s death sentence and returned the matter to the Supreme Court for resentencing.

Clarke’s lawyer Romona Farquharson-Seymour was unable to convince Justices Anita Allen, Stanley John and Abdulai Conteh the trial judge was wrong – in law – to allow four alleged confessions to be admitted into evidence before a jury.

However, the justices did agree with Mrs Farquharson-Seymour that the circumstances of the September 16, 2011 murder of Aleus Tilus came nowhere close to that of Maxo Tido, whose death sentence for the brutal murder of a 16-year-old girl was ultimately overturned by the London-based Privy Council because it was not “the worst of the worst.”

Moments before dismissing Clarke’s appeal against his conviction, but squashing his death sentence, the appellate court asked Franklyn Williams, deputy director of public prosecutions, if he believed the case to be the “worst of the worst.”

“It was a contract killing,” Mr Williams answered, adding that it was open to the trial judge to come to this conclusion in light of previous rulings by the Privy Council.

“The contract itself, they said, does not make it so,” Justice Conteh said.

“It may be considered though,” the prosecutor said, adding that Clarke, according to the confession, had stalked Tilus for the entire day on his bicycle before riding up to him.

The lawyer said Clarke fired eight shots in Tilus’ direction, three of which hit him in the heart and liver.

“Does that in of itself make it the worst of the worst?” Justice Allen asked. “In the case of Maxo Tido, there was evidence of torture of a 16-year-old girl (who) was taken from her home, tortured and even partially burned.”

Mr Williams asked the court to take into consideration that Clarke had shown no remorse upon his conviction or when interviewed by a psychiatrist of the Department of Rehabilitative Welfare Services.

“I empathise with you because there is never going to be a worst of the worst, because you’re never going to reach that threshold given that there will always be a worse case to follow,” Justice Allen said.

The point was conceded by Justices John and Conteh.

“So the death penalty shouldn’t have been on the table,” Justice Conteh said.

“Hanging is over,” Justice John said.

“Hanging is over,” Justice Allen added before the court, for reasons to be provided at a later date, squashed the death sentence and remitted the matter to Supreme Court for resentencing.

Clarke’s conviction was upheld.

Both Mrs Farquharson-Seymour and Mr Williams offered no comment on the outcome of the appeal.

Evidence

During Clarke’s trial, the prosecution produced a confession statement in which Clarke purportedly owned up to the murder.

He allegedly told police that he was paid “a lot of money” by a “white man”, who was not named or prosecuted, to kill Tilus because of an ongoing dispute before the Labour Board concerning Tilus’ employer.

The convict’s then-attorney, Shaka Serville, submitted that the statement was obtained through force and brutality against his client.

The jury returned an unanimous guilty verdict and the prosecutor, Ambrose Armbrister, indicated the Crown’s intent to seek the death penalty.

On October 10, 2013, then-Senior Justice Jon Isaacs, having taken into account submissions from the prosecution, defence attorneys, probation and psychiatric reports, agreed to the Crown’s request to sentence Clarke to death.

Yesterday’s almost three-hour long substantive hearing began with Mrs Farquharson-Seymour making arguments against the conviction.

She argued that the judge had allowed the confessions to be entered into evidence, notwithstanding that Clarke, who alleged brutality at the hands of the police, had not been properly cautioned on possibly incriminating himself following the first record of the interview that he gave to police.

Questioning the police about this, she said, would have been in accordance with the Judge’s Rules.

Justice Allen asked the lawyer about the differences between each of the confessions admitted into evidence.

The first and second respective confessions, taken on October 4, 2011, had been a record of interview and a video recording of police being taken to the scene of the crime.

The third and fourth confessions, taken on October 6, 2011, came from further questioning about the weapon used and a final confirmation of what Clarke had earlier told police.

The defence lawyer’s response prompted Mr Williams to rebut her claim. He said that there were not four confessions as each inquiry was a continuum.

The prosecutor also asked the court to bear in mind that the officers had only 72 hours to work with for their inquiries of Clarke.

Clarke’s lawyer asked the court to be mindful that an entire day separated the Crown’s only evidence brought against her client in the Supreme Court.

She said this lent credence to her client’s claim of oppression when also considering the medical evidence presented that a physician had found soft tissue injury on his right side when he was examined four days after the last of the alleged confessions were given.

Justice Allen noted that Clarke had answered “yes” when asked by the examining physician if he sustained injury during arrest.

Mrs Farquharson-Seymour submitted that the physician was not probed for clarity by either side in the court below.

The appellate president said the physician would still not be able to give evidence of how and when the injuries occurred because there were no visible bruises and the injury itself was medically diagnosed as subjective.

Justice Allen further noted that the medical report noted that the soft tissue injury could have been caused from stretching or trauma.

Mrs Farquharson-Seymour said the latter of the two still gave credence to his claims of police brutality.

Mr Williams, in response, said that the Supreme Court judge still came to the conclusion that in watching the video recorded interviews, he saw no signs of force or coercion. 

The judge had further noted that the injury did not match Clarke’s description of him being beaten while facedown on the floor.

On the issue of sentencing, Mrs Farquharson-Seymour noted that the Crown had not provided their grounds for seeking the death penalty when giving notice on the day of conviction.

Justice Allen noted that as long as the latter was adhered to, the rest was procedural and at the direction of the judge.

The lawyer then submitted that the commission of the offences came in September 2011, two months before the law was amended to reflect the Privy Council’s rulings on which cases of murder could attract the death penalty.

When asked by the court if this was a “worst of the worst” case, the lawyer said it was not.

She explained that there was no evidence of lurking or even torture.

Mr Williams interjected, noting that Clarke was a friend of Tilus and had killed him after the two had lunch in Gambier Village.