The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

KOFHE Goodman, who was sentenced to death for the murder of 11-year-old Marco Archer, will be retried in the Supreme Court after the Court of Appeal yesterday quashed his conviction and sentence.

The court ultimately concluded that these issues - adverse pre-trial publicity, misconduct of Goodman’s defence lawyer and the jury’s irregularity - created “a lurking doubt about the fairness of the trial”.

Goodman and his appeal lawyer Wayne Munroe, QC, returned to the appellate court nearly a year after a substantive hearing to convince three judges why they should set aside the conviction and punishment concerning the murder of Archer, of Brougham Street, in 2011.

The appellate panel, comprised of Justices Dame Anita Allen, Jon Isaacs and Stella Crane-Scott, were all in agreement that Goodman’s trial lawyer Geoffrey Farquharson’s conduct during the four-month trial was “persistent, deliberate, and gross”.

However, appellate President Dame Anita dissented from the opinion of Justices Isaacs and Crane-Scott that Goodman’s chances at a fair trial had been hampered by adverse coverage which included National Security Minister

Dr Bernard Nottage’s announcement on “Marco’s Law” two weeks prior to the start of trial in April, 2013, notwithstanding that the case had no evidence or charge concerning kidnappings or sexual assault.

The judges were in agreement on their concern that a physical altercation had taken place between two jurors during the lunch break on the day of the summation.

A retrial was ordered for as soon as possible. Goodman, however, had sought a deferment of a retrial if the court were to allow the appeal against his murder conviction and death sentence.

Goodman, who was up until yesterday the only inmate on death row for murder, insisted to The Tribune as he was exiting the Claughton House courtroom that “Jesus is Lord” be printed as his response to the decision.

Pre-trial publicity

His lawyer, Mr Munroe, also spoke with this newspaper on the ruling.

“The court ruled to set aside the conviction with one of the grounds being the nature of reports about the matter and so I think the public and the press, and everyone should be careful in their utterances so that they don’t prejudice cases,” he said.

When asked of the likelihood of an early retrial date in view of these factors, Mr Munroe said: “We are some distance away from the publications that caused the pre-trial issue.

“We’re more than a year away so long as they are not repeated, there should be no issue for the upcoming trial. In my judgment this case should be able to be completed in two weeks maximum and it would just be a matter for the chief justice to assign a trial judge to try the matter,” he said.

In the Court of Appeal’s written 72-page judgment where more than two dozen case authorities were referenced, Dame Anita explains her dissent on the issue of pre-trial publicity.

“The jury had the benefit of a sound and thorough warning on the potential impact of the pre-trial publicity, a warning, which we must assume the jury followed in their deliberations,” she said.

“Upon considering the directions given to the jury in this regard, after reviewing the numerous articles submitted by the appellant as evidence of pre-trial publicity and in light of the case law, I can see no reason to conclude that as a result of the pre-trial publicity the appellant was not afforded a fair trial by an independent and impartial tribunal,” Dame Anita stressed.

Justices Isaacs and Crane-Scott were not convinced on this ground, however, and took Dr Nottage and the media to task.

“One of the difficulties faced by small jurisdictions such as The Bahamas is the widespread publicity afforded utterances by public figures and the impact these utterances have on the whole of the population,” Justice Isaacs noted.

“The minister of national security inserted himself into the proceedings when he announced, two weeks ahead of the trial of the appellant, that he would name a proposed enactment pertaining to sexual offenders, ‘Marco’s Law’. This had the effect of prejudicing the appellant’s chance of a fair hearing by wrongly focusing the public’s attention on speculation that the deceased, Marco Archer, had been sexually assaulted by whoever had abducted him; the very same public from among whom the jury was to be drawn,” Justice Isaacs added.

Graphic details

“There was no allegation of any sexual abuse visited upon young Archer and, in particular, none to suggest the appellant had sexually assaulted him. The pervasive and unrelenting regurgitation of the circumstances surrounding the death of the young boy in daily reporting of the case also did much to taint the fairness of the case as each day the public and jurors were besieged with information and misinformation about the case.

“This was not a case where the utterances were separated from trial by a matter of many months or even years.”

Justice Isaacs went further to say that, notwithstanding the oath jurors take to deliberate solely on the evidence as directed by the judge, “I am reminded that bias is such an insidious thing that even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias.”

He said trial judge Justice Bernard Turner could have stayed the trial for a defined period of time, which would have allowed the graphic details of the case to subside from the public’s memory or to have the trial on another island at a future date.

However, Justice Isaacs expressed scepticism that reminding the jury of their oath to ignore press reports would have made a difference.

Justice Crane-Scott for her part, said she “completely accepts that a balance always has to be struck between freedom of the press and the demands of a fair trial”.

“I further accept the principle that juries should be expected to follow the trial judge’s warnings and directions not to be swayed by things they may hear or read outside the courtroom. That having been said, it must be recognised that from time to time, situations will arise where that fine line which is kept in the vast majority of cases between the public’s right to be informed and the demands of fairness has been crossed so completely that the likelihood of a fair, impartial trial is placed in peril.

“I accept that the passage of time and jury directions may, in larger societies, be sufficient to redress any likely prejudice to an accused. However, in a relatively small society such as ours, given the relentless media coverage and the prejudicial references to the case and to the appellant which were made so close to the scheduled start of trial, I agree with my learned brother Isaacs that the failure of the judge to order a stay for a defined period or to consider transferring the trial to another island, militated against the fairness of the trial.”

She stressed that the “huge volume” of adverse pre-trial publicity between his arrest and Dr Nottage’s “untimely public announcement” before the start of trial in April 2013, “crossed the line between freedom of the press and the demands of a fair trial”.

Other grounds

The appellate court’s written judgment addressed the other grounds on which all three judges agreed to allow Goodman’s appeal.

“As shown by the transcript, two members of the jury were involved in an altercation however only one member of that altercation (the forewoman) was asked whether she felt able to render a good verdict in accordance with her obligations,” Dame Anita noted.

“Even though juror number 45 was identified as the second party to the altercation, he or she was not given an opportunity to respond, neither upon asking the forewoman whether the jury was able to render a verdict did the learned trial judge allow the members of the jury time to consider the question and return an answer reflection of, at the very least, the views of juror number 45. At the end of the inquiry, the only true answer the learned trial judge had was whether the forewoman felt that she was able to continue with her duties and arrive at a true verdict.”

The appellate president acknowledged that common law prohibits against inquiring into events in the jury room and extends into matters connected with jury deliberations.

“However, there might be some matters to which a judge could and should inquire into by questioning jurors,” Dame Anita said.

“The role of the judge in the circumstances of the present case is to determine, within the limits of the law, the capacity of the jurors in question to fulfil their oath or affirmation. While it is indeed up to the learned trial judge to take course he or she feels is best suited to the circumstances of the case, I cannot agree that the extent of the inquiry made in the present case was sufficient.”

Concerning the conduct of Mr Farquharson during his defence of Goodman at trial, the court offered commendations to the judge and the prosecution for their handling of the matter.

“I must commend the patience of the judge and his attempt, in the public interest, to salvage an important lengthy trial from shipwreck,” the appellate president said.

“I give further commendation to Mr (Garvin) Gaskin, director of public prosecution, for his effort to conduct the trial in as professional a manner as possible in the face of such outlandish behaviour by counsel.

“That notwithstanding, the transcript of the proceedings which spans more than 5,000 pages, demonstrates across its length and breadth the persistent, deliberate and gross behaviour of defence counsel. On numerous occasions and often within minutes of chastisement by the learned trial judge, counsel openly and repeatedly defied the instructions of the judge in relation to a particular line of questioning and his conduct. Counsel repeatedly accused the trial judge of ineptitude, bias against his client and collusion with the prosecution, behaviour which eventually led to contempt proceedings.”

Tommel Roker and Ryszard Humes assisted Mr Munroe in the appeal.

Mr Gaskin was assisted by Neil Braithwaite and David Cash as Crown respondents.