The spectre of material taken from crime scenes said to be connected to the Klansman gang which either went missing or were not presented as evidence in the ongoing trial returned to haunt the Crown on Thursday as it closed its response to no-case submissions from the defence.

The issue, which has dogged the Crown’s case in respect of several incidents listed on the 25-count indictment, was again lamented by trial judge Chief Justice Bryan Sykes, who is expected to rule on Monday regarding which of the 28 accused remaining in the dock have a case to answer based on the Crown’s arguments.

Already, five of the original 33 defendants were, at the end of May, freed after the Crown’s case against them collapsed due to insufficient evidence. The first four were released by virtue of the Crown conceding that it had no evidence to hold them. The fifth was released following a successful no-case submission by his attorney.

Since the trial began in September last year, several police witnesses who took the stand revealed that they were unable to account for images for at least two crime scenes — one being photos for the February 2018 slaying of a Spanish Town bus driver. In the other instance, where Damaine Forrester, otherwise called Doolie, was allegedly murdered at the hands of the Klansman gang at Price Rite in 2017, a cop, in taking the witness stand, told the court of the disappearance of a compact disc with scenes of crime photographs, a vanished logbook, and a damaged hard drive.

On Thursday, a seemingly frustrated Justice Sykes resurrected the issue after his queries about supporting evidence outside the narrative of the Crown’s main witnesses about that murder were met with a response in the negative.

“That’s why I say, if this is a faith-based statement, we must accept it on faith, because what you are essentially saying is this, a homicide has been committed, and the police go on the scene, no records? That’s the point I am making, no records? It can’t be that you have a homicide in Jamaica in the 21st century and no record. So if the police officer recovers these things it has to be recorded somewhere, contemporaneous records, doesn’t it have to be stored somewhere? They don’t have exhibit registers? So even if you say the photographic images are lost, computer crashed, there is not even a record from the lab to say I received those items? We know with absolute certainty that’s what the lab does, they have to have records,” the chief justice said aghast.

He then pointed to what he said was a stark contrast in the handling of evidentiary material connected to the 2017 murder of Jermaine Bryan and Cedella Walder in St Catherine, which is referred to as the ‘Fisheries Murder’ on the indictment.

“Look at the contrast between Fisheries and Price Rite — chalk and cheese. One is documented, the other, zero documents of any kind, not a scrap of paper of any kind in the 21st century,” the chief justice said exasperatedly.

The trial judge’s frustration harked back to his sentiments about the alleged murder of a man in 2018 at Phil’s Hardware in Spanish Town supposedly by the gang. Justice Sykes, who had questioned whether there was any other evidence outside of what was said by the witness about that incident, was told “No” leading him to make the observation that, “Some people would find that quite a remarkable state of affairs, in that, here we are in the 21st century, it is being alleged that a person is shot and killed, he is supposedly lying on the ground, the police arrive and there is no evidence, no photographs, nobody from the scene of crime, no investigating officer, nothing to say that a body was found with gunshot wounds.”

According to the trial judge, since there had been no police witness to offer further evidence, prosecutors could have drawn on the funeral home that removed the body or even a relative.

On Thursday, Sykes, in his parting shot, pointed the Crown to the crux of its case.

“The way in which the case is constructed, it is dependent on proof of crimes in order to support the existence of the [criminal] organisation. So if that is the way the case is constructed, then the proof of the underlying crime really needs to be complete. This is not the kind of case that you have, like the Brangman (gang) case from Bermuda, where somebody comes and says ‘yes, I know they are members of a criminal organisation because they have tattoos, they wear pink shoes.’ It is not that kind of case.

“Here now, you are going to prove the existence of the criminal organisation from criminal activity. So, these multiple activities take place — murder, illegal possession of firearm, et cetera — and these persons are involved and therefore infer how likely is it that five, six, nine persons who are unconnected to each other are found committing crime one, two, three, four, five, six,” the trial judge schooled.

“That is how I understand the case has been constructed, so because the case is constructed in that way, if you are going to be relying on the existence of the commission of underlying crimes then the underlying crimes have to be established; because it is not association in and of itself. Your case theory is, they commit crimes; these are the crimes they commit, so the inference is they are part of a criminal organisation and this is why you see these names involved [over and over],” Justice Sykes said further.

On Thursday, a senior prosecutor, responding to the points raised by the judge, referenced a .45 Sig Sauer firearm which had been entered into the court’s records as an exhibit and was allegedly recovered from the hands of one of the accused. That same pistol — which has been codenamed Ersela by ballistic experts — prosecutors contend, is a “system gun” which was used in at least three of the murders on the indictment, including the Fisheries Murder. This, prosecutors argued, was evidence that the individuals fingered for those crimes were not mere acquaintances.

Another glaring oversight in the case involves a firearm supposedly collected from what the chief justice has termed the “lion’s den” by the lead police investigator who had pretended to be a relative of the former gangster-turned-Crown witness and entered the Klansman lair.

The investigator, however, placed no defining mark on the weapon, which he told the court was not like any he had seen before and had no serial number. Despite his having risked life and limb to collect the weapon from the gangsters, there was no record produced during the trial from the station where it had been turned over to prove that it had been left there before being taken to the government forensic lab, resulting in a gap in the chain of custody for the weapon.

In September, at the start of what is now the longest-running and largest gang trial, the Crown had alleged that the accused, between 2015 and 2019, carried out a range of murders, conspiracies to murder and extortion and arson throughout St Catherine. The accused are being tried under the Criminal Justice (Suppression of Criminal Organisations) (Amendment) Act, commonly called the anti-gang legislation, with several facing additional charges under the Firearms Act.

The offences for which they are being charged include being part of a criminal organisation, murder, conspiracy to murder, arson, illegal possession of firearm, and illegal possession of ammunition.

Police say the fractured gang, which has a membership of around 400, has caused mayhem in St Catherine and has connections in the criminal underworld in neighbouring islands and elsewhere overseas.