Don't Persistently Provoke

By Gordon Robinson

Our gregarious DPP had been doing the talk-show rounds touting her office's professionalism and how well the justice system works.

Then: the Kern Spencer decision. Awkward! Taken at face value, it meant the DPP's office spent five years in trial presenting absolutely nothing that could incriminate anyone. During that time, many months were wasted in lawsuits brought by our "professional" DPP against the sitting magistrate accusing her of bias, then engineering a back-door appeal from one of her rulings disguised as judicial review.

If that's a "professional" approach, call me Pearl.

'Bias' is an emotive, misunderstood word. There's 'bias', which we all regularly encounter at work and home, and then there's legal 'bias'. Lawyers wishing to remain professional should never ask judges to recuse themselves unless a judge is personally connected to a case's outcome (e.g., has a direct pecuniary interest or reason to root for one of the parties). A judge mightn't like you (or, more probably, how you're conducting your case). This means nothing. Judges are trained to apply law to evidence, regardless of personal feeling for (or against) counsel. Remember, counsel isn't a party to the litigation. Both magistrate and DPP are employed by Government, so the only possible legal bias of which one could accuse any magistrate would be in favour of not against the prosecution.

But judges are people, too. So, in my opinion, to sue a judge as a result of a ruling made during a case is carrying cut and thrust too far. It's one thing to 't'row wud'. It's another to put a judge to unnecessary embarrassment and personal expense over a legal disagreement.

Advocates going to such extremes may push judges beyond tipping point and shouldn't act surprised, nor claim scrupulous 'professionalism', when a judge, so provoked, summarily dismisses the advocate's case. That advocate has made it personal, not professional. It's exactly the sort of distraction a DPP should avoid when she can see that all concerned (prosecutor, magistrate, accused) are public officials and the charges corruption related. In such circumstances, a 'professional' DPP knows citizens are watching keenly, expecting a scrupulously independent testing of all the evidence.

Legal lore has it that when that superb advocate, Tony Spaulding, had a hopeless case, he would appear in bright yellow socks and put his feet up on counsel's table. This so infuriated the judge that he'd make an error in summing up, which guaranteed a successful appeal for Spaulding's client. But that tactic can't work where there's no right of appeal. So, what on earth was our DPP, whose public persona seems to forever be caricaturing the Cheshire Cat, thinking?

star witness

It's not as if the magistrate's ruling was irrational. The DPP admitted meeting the prosecution's star witness when he was a defendant. She said she didn't take meeting notes (Rodney Chin testified he thought the DPP had taken notes) and her letter describing the meeting wasn't helpful. The magistrate tried ending the cat-and-mouse game by ordering the DPP to testify. Naturally, she'd have to withdraw as counsel. No biggy. She's proudly announced her office has 43 lawyers. Why not obey the magistrate's ruling and have someone else to prosecute? Why chance antagonising the magistrate to such an extreme?

This magistrate spent five stressful years on this one case. During that period, any hope of promotion to Supreme Court judge was thereby stymied. During this time of personal sacrifice, the magistrate also suffered untold personal misery at the hands of the prosecution. Since the magistrate remained professional throughout, I doubt these matters factored in her decision-making. But, should it turn out the decision was influenced by these extrajudicial issues, I wouldn't blame the magistrate at all. I'd blame the DPP.

Meanwhile, apparently oblivious to possible real-life consequences of her bull-in-a-china-shop methods, learned DPP repeatedly complains to every available camera that the justice system depends on witnesses' willingness to testify. Surely, you jest, DPP? No country's citizens enjoy having to participate in its judicial process. Witnesses' willingness seems not such an obstacle elsewhere because:

(1) Most places have only one trial; we've two (including preliminary enquiry).

(2) Most places try criminal charges in weeks; we take years. Just yesterday, a murder trial was adjourned despite six Crown witnesses being present because the term is almost over. It's been going five years.

(3) Elsewhere, police have the forensic capability to prove crimes without eyewitnesses. Here, we routinely destroy valuable crime-scene evidence.

(4) Elsewhere, professional lawyers with no right of appeal know their overriding duty to clients is not to annoy the judge.

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.