Isat Buchanan, the attorney representing entertainer Vybz Kartel, on Wednesday declared that the matter will be back before the Court of Appeal if a retrial is ordered.

According to Buchanan, with “admissibility still a live issue” from the onset of the case against his client and three co-accused, if a retrial is ordered, the defence will be appealing any decision made by the trial court to use evidence the defence maintains is “inadmissible” based on breaches in the original trial some 13 years ago.

Adidja “Vybz Kartel” Palmer and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John and his co-accused are accused of killing Clive ‘’Lizard’’ Williams on August 16, 2011 after he failed to return two unlicensed firearms Palmer supposedly gave him to secure. Williams has not been seen since and his body has never been found.

The prosecution’s case was that the correspondence and communication media, taken as a whole with the evidence of the sole eyewitness, proved the fact of the killing, the reason for the killing, the method of disposal of the body, and the identity of at least one of the killers, namely Palmer.

The defence had argued that the evidence was obtained in breach of the constitutional rights of the men and was therefore inadmissible.

The Privy Council in March quashed the murder convictions and placed the question of a retrial back in the lap of Jamaica’s Court of Appeal.

Wednesday, Buchanan, in addressing the Appeal Court panel of justices Marva McDonald-Bishop, Paulette Williams and David Fraser, said, “If this court were to decide there is to be a retrial, a judge will be conducting a
voir dire [trial within a trial] at best to determine the admissibility of the technological evidence. It’s going to be challenged if we were to go back; so a note can be made right here that in any event, we are submitting, there will be an appeal to this court, if it turns out not in our favour.”

“We already have guidance in this jurisdiction that the starting point for constitutionality is that the Government must justify a breach. So there has to be some consideration however it ends. The problem now is that the prosecution, in terms of the strength of the case, has two planks, a sole eyewitness and the technological evidence,” Buchanan said.

In noting that the prosecution will be relying on video evidence (of the murder taking place), Buchanan told the panel “in any event, if it is admissible, the strength of the prosecution’s case is whittled down by the evidence as there was a breach in the previous trial”.

“Once the court makes the determination, these are hurdles the prosecution must overcome which involves the challenge to the technological evidence,” he said in declaring that the defence will bring witnesses to establish that the phone evidence and the technological evidence puts the Crown’s case in a worst position.

When asked by Justice McDonald-Bishop what the implications of the deficiencies in the Crown’s case were, Buchanan said if the case was sent back for a retrial the prosecution will be given a chance to fix some of the holes in its case.

“It’s not in the interest of justice to send it back because the prosecution would have an opportunity to fix some of the deficiencies. They are fixable, it would be the second bite of the cherry,” Buchanan said as he added that another key challenge for the defence was the death of the handwriting expert who had appeared in the original trial.

“It’s a major loss and, in fact, the music for the defence bar would not be melodic if this witness is not available,” he added.

As to the mental and physical health of Palmer, the attorney said his client, who has been diagnosed with Graves disease, is withering away with a 50 per cent reduction in his heart function, increasing the possibility that he would not survive a second trial. Furthermore, he said Palmer, who has had to foot the costs for his treatment by a private specialist, has been unable to earn during incarceration and is financially depleted having also had to pay the bills of his co-accused for legal representation which amounts to millions.

Wednesday, attorney John Clarke, who is the lead attorney representing Jones and St John, in capping the submissions made by the defence team, argued that the Crown was attempting to repair the proverbial Humpty Dumpty in pushing for Palmer and his co-accused to be retried.

“In other jurisdictions new trial orders have an expiry date. In our jurisdiction there is no procedural safeguard of a statutory expiration date for a new trial order. We submit that when so many constitutional rights are in breach at some point in time fairness would demand that a line be drawn in the sand to ensure that lapse of time, or delay, is a sufficient factor to so militate against the making of any order for a new trial,” Clarke said.

“The integrity of the trial was affected when the egg fell to the ground and ultimately because of that, no direction [from the judge to the jury] could cure that [mischief], so we couldn’t put that trial together and continue with the trial. Now the question is, if Humpty Dumpty couldn’t be put together by directions in 2014, how then in 2024. Bearing in mind that the actions of the miscreant juror has received widespread publicity across the island, has the contamination that was spread in that jury pool now spread so wide and so far that on the issue of publicity a fair trial is affected?” Clarke wanted to know.

Said Clarke: “What the trial judge also had available to him was the power to prohibit publication in relation to certain issues so if in this particular case that judge had said nobody, no media house could publish this issue, and put an gag order on counsel, if those common law options were deployed, we are of the view that none of these appellants could ever complain that the publicity in relation to the bribery would affect another hearing.”

In listing delay, change of location for the trial, and polling the jury as the available options in case law to correct the issue of prejudice, Clarke told the court that it is left to the Crown to demonstrate that if these three options were employed, they could help remedy the damage caused by the publicity surrounding the trial.

Also on Wednesday attorney Iqbal Cherverria, who also represents Kahira Jones, said the ordeal has resulted in his client, who was incarcerated at age 27, being robbed of the chance to have a family life.

He said Jones, who is now 40, has not been given a chance to “grow a family”, a factor which should weigh in determining a retrial as this is a protected right. Asked by the judge whether appellants or individuals yet to be convicted were not granted conjugal rights, Cherverria said, “He has stated that he was not afforded that opportunity.”

“So, you are saying, Mr Jones suffering in that regard? But isn’t Mr Kartel older than him and he has a fiancée?” Justice McDonald-Bishop pressed, to which the attorney replied, “It’s not the same for him.” He further said his client was heavily indebted “to the tune of millions” having taken a loan to foot his legal fees and has had a harassing time in custody with rats, bedbugs and roaches.

Meanwhile, attorney Alessandra Labeach, who appears with Buchanan in representing Palmer and Shawn Campbell, speaking for Campbell, said it would not be fair, or in the interest of justice, for the court to order that he be retried.

The Crown will begin its submissions when the matter resumes at 9:30 today. The hearing, which began on Monday, is expected to be completed on Friday.