Editorial | Answer: staff DNA lab

Criminal prosecutors and law-enforcement officers are reportedly furious at Chief Justice Bryan Sykes’ offer of bail to several accused criminals in recent weeks because of the absence of required forensic files, including DNA reports, in their cases.

The most poignant of the chief justice’s decisions is the matter of Michael Smith and Rajae Walker, who allegedly came out on the losing end of a gun battle with a policeman a year ago.

Paula Llwellyn, the director of public prosecutions (DPP), described Justice Sykes’ decision as “very unfortunate”, which, in the context of judicial propriety, is tantamount to a loud rebuke.

One unidentified “law-enforcement operative” suggested that because the chief justice has security guards with him all the time, he is blasé about the security threats faced by ordinary citizens in a country with a high crime rate, including around 1,500 homicides annually.

While their anger, given Mr Smith’s previous conviction for murder, may not be wholly misplaced, their argument requires greater nuance.

The attention solely on Justice Sykes gives other critical players a pass. Second, the posture suggests a less-than-enthusiastic embrace of the rights of all citizens to the Constitution’s protections.

Further, no one should be overly surprised by these decisions given previous actions by Justice Sykes and other rulings elsewhere in the courts that appropriately protect the rights of citizens to fair trials within a reasonable time.

RIGHT TO APPEAL

But as she has with respect to certain aspects of criminal convictions, Ms Llwellyn and her prosecutors will soon have the right to appeal the granting of bail, with the passage of a new Bail Act.

In the matter of Smith and Walker, in September last year, both men allegedly accosted an off-duty policeman at the entrance to his home and opened fire. Mr Smith, who had recently been paroled from prison after serving eight years of a sentence for murder – committed when he was 15 – was shot in the eye. He and Mr Walker were arrested and charged with illegal possession of firearms and shooting with intent.

Apparently, when mutterings were raised in the wake of the J$400,000 bail offer to Mr Smith, Justice Sykes directed grumblers to “the forensic lab”. Or properly, the Institute of Forensic Science and Legal Medicine (IFSLM), whose executive director, Judith Mowatt, has conceded to a backlog of DNA reports but who complained of a chronic shortage of staff.

In 2022, she told The Sunday Gleaner that her DNA department received 19,941 samples collected from 9,621 crime scenes. It is not clear how many of those samples were tested, but she suggested that the staff of five forensic officers and an assistant in the institute’s DNA department were insufficient to manage the workload.

DNA analysis in straightforward cases could take up to two weeks, Dr Mowatt said. Complex ones could require up to two months. Matters are further complicated by the environment in which IFSLM operates.

“Because of the climate that we live in, and sometimes the time taken to recover and submit the evidence, a lot of DNA samples often reach us degraded,” she said. “ So it involves a more time-consuming protocol to extract the DNA and produce a profile.”

And neither, she lamented, could five people manage the volume of work. The institute, with 80 forensics officers across all departments, was at least 40 per cent below what is required.

INCREASED FUNDING

Dr Mowatt is now requesting increased funding to hire more staff. Which is the right thing to do.

Justice Sykes, she feels, should not criticise without being “cognisant of all the facts and the mitigating circumstances”.

However, that is not the chief justice’s obligation, which is the delivery of justice in accordance with the Constitution and the laws of Jamaica. Responsibility for having a properly funded, competently staffed forensics laboratory rests with a separate arm of government, the executive.

In that regard, the judiciary’s focus was, not inappropriately, on Section 14 (3) of the Constitution’s Charter of Fundamental Rights and Freedoms (3), which mandates that “any person who is arrested or detained shall be entitled to be tried within a reasonable time”. It appears that in the Smith and Walker matter, the prosecution did not convince the chief justice of sufficient cause to deny them bail.

In June of this year, in Justice Sykes’ court in the Trelawny Circuit, 63 cases collapsed because of the failure of the police’s Forensic and Cyber Crime Division to produce in time reports on the electronic devices allegedly used in lottery scamming.

Additionally, there was the appeal court ruling in the Orville Watson case that squashed Mr Watson’s 12-year jail term (albeit after he had served his time) because of a long delay in providing a full transcript of his case in the lower court to facilitate his appeal. His right to a timely review of his conviction was violated, the appeal judges held.

Increasingly, the courts are asserting the rights of citizens to fair hearing within reasonable time. Other branches of government should take note and act accordingly. For these rights are universal, not selective.