The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

KOFHE Goodman could not have received a fair trial concerning the murder of 11-year-old Marco Archer given the extensive pre-trial publicity of the case, a veteran lawyer told Court of Appeal judges yesterday.

Wayne Munroe, QC, argued that even if the appellate panel did not accept his client’s view on the prejudicial affect of the constant reporting of the case, which included the repeated reference of a proposed sex offender’s registry bill (Marco’s Law) despite no evidence of sexual assault in the case, Goodman’s defence had been further hampered by the trial judge allowing the defence lawyer’s rude behaviour to distract the jury from the flaws in the circumstantial evidence regarding the September 2011 incident.

Goodman is seeking a deferment of a retrial if the court were to allow the appeal against his murder conviction and death sentence on the grounds of publicity affecting the case.

Yesterday’s proceedings before Justices Anita Allen, John Isaacs and Stella Crane-Scott began with Mr Munroe addressing the circumstantial evidence on which his client was convicted.

“The case for the Crown was wholly circumstantial,” Mr Munroe said.

“The first fact was from the family of the deceased who gave account of the last time that they saw him. Then the Crown led evidence of the deceased being found in a wooded area. They also produced DNA concerning the identity of the deceased even though there was a lot of unnecessary contention over the identity,” the lawyer added.

Mr Munroe said that the other occupants in the complex next to where Archer’s body was found were never identified by police nor were their homes investigated to determine if the purported bed linens used to conceal the child’s body matched that of the other tenants.

The bed linens, the lawyer said, were never produced at trial that they claim they found in Goodman’s apartment.

“So it was just someone’s opinion?” Justice Crane-Scott asked.

“There was no evidence of any inquiry of the other units,” the lawyer said.

Mr Munroe addressed the clothing said to have belonged to the body and argued that there was no DNA profile found that was consistent with that of his client and no samples had been taken from the occupants of the vehicle in which Goodman was arrested the night before at the very same compound.

“There were no DNA reference samples taken from the occupants of the other units either,” the lawyer said.

“And the items recovered from the trash bin at the compound?” Justice Allen asked.

“There was no evidence that the trash bin was connected to the unit of the appellant,” Mr Munroe said.

“The items found in a trash bin were enclosed in a trash bag, no?” Justice Isaacs asked.

“I believe it was,” Mr Munroe answered, but said that there was evidence of the contents being removed and the possibility of DNA transferring was not dismissed at trial.

The lawyer also stressed that the Crown could not prove that blood was found in the vehicle taken from Goodman or his apartment that they checked.

“And there was no evidence of an attack on the child in Bain Town?” Justice Allen asked. Munroe said no.

“There was also said to be paint on the slipper of the deceased but there was no evidence on whether it matched with what they said was in the apartment, be it colour or composition,” the lawyer stressed, adding that “the police, for a curious reason, went only to the appellant’s apartment.”

Mr Munroe then shifted his focus to the conduct of Geoffrey Farquharson during the trial.

The lawyer’s antics he said: “Went on ad nauseam from April to August and that’s a temporal length of trial, a period spanning four months for a case that ought not to have lasted more than 10 weeks.”

“We say the learned trial judge ought to have acted to discharge him or the jury,” Mr Munroe said, stressing that his “belligerent conduct was to the detriment of the appellant.”

“We accept that counsel is to be fearless and resolute in the pursuit of his duties on his client’s behalf but this is to be done within the rules,” the lawyer said.

“And with courtesy and respect,” Justice Allen added.

Mr Munroe said there were several instances where Mr Farquharson was loud and constantly pointed his finger at Justice Bernard Turner whom, on June 5, 2013 in the absence of the jury, had warned the trial lawyer of his conduct and the possible affect his actions could have on the jury.

“Could that impact the disposition of the appeal?” Justice Allen asked.

Mr Munroe said it was an important factor when considering all of the circumstances of the trial itself.

“Was there ever an application by the Crown in relation to having him be discharged?” Justice Allen then asked.

Mr Munroe said the Crown did nothing beyond reminding the judge that Mr Farquharson’s behaviour was unacceptable.

“And his behaviour was allowed to continue for 14 weeks,” Justice Allen noted.

“Clearly the appellant, as a lay person, would be unaware of his rights unless they are put to him and at the very least, the judge should’ve said to him in very clear terms ‘your lawyer is behaving very rudely, I would suggest to get advice from another lawyer,’” Mr Munroe said.

“Even in the citing of contempt, he (Farquharson) did not let that deter his actions,” Mr Munroe stressed.

“Doesn’t it seem like the judge has lost control of the defence counsel,” Justice Crane-Scott asked her fellow judges, who nodded in agreement with her suggestion.

“The cumulative effect of the conduct of counsel in the presence of the jury, we say there could not have been a fair trial,” Mr Munroe argued.

When asked by the court to explain how this was possible, the QC said regardless of how a judge warns a jury that the actions of the attorney should not be reflected on the appellant, the damage was done.

Concerning the point of pre-trial publicity, which he noted as his client’s most important ground, Mr Munroe said the coverage of the matter from his client’s arraignment upwards to the appeal level “was persistent.”

“Before this case was brought on for hearing, legislation for a proposed sex offenders registry list was named after the deceased in the matter, Marco’s Law,” the lawyer said.

“When was this?” Justice Allen asked.

Mr Munroe cited a March 26, 2013 edition of The Nassau Guardian where a story “Dr Bernard Nottage renews commitment for Marco’s Law” was published.

“I don’t see anything wrong with that,” Justice Allen said after listening to the contents of the publication.

Mr Munroe referred to a February 22, 2013, publication by the website Bahamas Press where it says “Convicted child molester seeking bail – what kind of jack* society is this?”

The lawyer said the contents of that story along with the stories ran constantly by the legitimate newspapers and TV stations prejudiced the case “and we say it amounts to trying to get a particular outcome in a case.”

“That’s a stretch,” Justice Allen said.

“Marco’s Law had to do with a sexual offence?” Justice Isaacs asked.

Mr Munroe said yes, but “there was no evidence at all with respect to sexual assault of Marco Archer.”

“It’s freedom of speech, though,” Justice Allen said.

“In this matter there are two competing rights, one is to free speech and the other is a right to a fair trial,” Mr Munroe said.

On the issue of sentencing, Mr Munroe argued that his client, if the court did not accept the grounds for overturning the conviction, did not deserve to be condemned to death.

He argued that not only was there no evidence that Goodman was beyond reform, but there was no evidence in the case of torture, sexual assault or cruelty as had been suggested by the judge when he sentenced Goodman to death on October 29, 2013.

The respondents will give their counter arguments on October 16.

Garvin Gaskin, acting director of public prosecutions, appeared for the Crown with Neil Braithwaite and David Cash.

Tommel Roker and Ryszard Humes assisted Mr Munroe in yesterday’s appeal hearing.