Prosecutors arguing for a retrial of entertainer Vybz Kartel and his three co-accused on Friday doubled down on their arguments, urging Appeal Court judges to “approach with caution” material from an “expert” tech consultant brought by the defence to shore up its stance that the media frenzy and widespread access to prejudicial material linked to the case can taint potential jurors, dooming chances of fairness in a new trial.

Adidja “Vybz Kartel” Palmer, Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John are accused of killing Clive “Lizard” Williams on August 16, 2011 after he failed to return two illegal guns Palmer was said to have given to him to secure. Williams has not been seen since and his body has never been found.

The prosecution’s case was that text messages and the communication devices used to send those messages, 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.

In April 2014, Palmer was sentenced to life in prison with the possibility of parole after serving 35 years of his sentence. His co-accused were also handed life sentences — with Storm and Jones being eligible for parole after serving 25 years, and St John being eligible after serving 15 years.

In April 2020, following an appeal, the men’s parole times were reduced by two-and-a-half years each. In September that same year, the men were granted conditional leave to challenge their murder convictions before the Judicial Committee of the United Kingdom Privy Council, Jamaica’s final appeal court.

In March this year the Privy Council quashed the murder convictions of the four and remitted the question of whether there should be a retrial to the local Appeal Court.

On Friday prosecutor Janek Forbes — continuing his submissions on day five of the hearing before the Appeal Court panel comprising justices Marva McDonald-Bishop, David Fraser, and Paulette Williams — took aim at the report of IT consultant Shawn Wenzel, who had analysed social media searches on the Twitter platform and news searches, arguing that its integrity could not be relied on.

“He has separated the type of publicity into social media as distinct from news searches. In respect to social media searches which were to
Twitter, where there were searches for keywords ‘Kartel, murder, Lizard, Privy and BlackBerry’, there were 110,000 hits between August 1, 2011 [and] May 1, 2024. By those terms of reference, we say they are limited because he focused primarily on one of the appellants,” Forbes told the court.

Pointing out further that Wenzel was unable to disaggregate whether any single viewer accessed the videos multiple times, Forbes told the judges, “When you come to assess the material you must firstly approach it with caution — the commentary and the content of the material”.

Continuing, Forbes pointed out that Wenzel, in drilling down into the data and placing the 110,000 hits into perspective, had admitted that of the number only 25.5 per cent are related to Jamaica and the others are from outside Jamaica.

“I’m an attorney, not good at maths, but a drilling down of that number shows that that 25.5 per cent would work out to somewhere around 28,500. Take judicial notice that there are around three million persons here in Jamaica, Milady, then that would work out to 0.95 per cent of the population. That’s only in relation to tweets,” the prosecutor said, adding that Wenzel did not disaggregate how many people viewed the content in Kingston and St Andrew or how many are qualified to be jurors.

“The point is, Milady, that when you consider the publication attributable to social media postings it cannot place this court in a position to say that the publicity was so widespread and so indelibly impressed in the minds of potential jurors,” Forbes argued.

Asked by Justice Fraser, “How is this material affecting this at all, by the fact that it sought to deal with only that which was prejudicial as opposed to that which might have been complimentary?”

The prosecutor said, “That is part of the reason we initially said we don’t see the integrity of the report, in the sense that there is a recognition that as an expert you ought to place before the court the full picture of what obtains”.

McDonald-Bishop, in shutting down protests from defence attorney John Clarke, said, “You presented him as an expert, we must determine whether we treat him as objective and fair and reasonable. Nobody can force us to accept him as an expert, we have to look at everything”.

Continuing, Forbes said the news postings referenced by Wenzel must also be viewed along the same lines.

“The same sort of assessment has to be done considering what is said, the possible effects of what is said. We are not accepting that this material is out there and so widespread it can affect every single potential juror in Kingston and St Andrew,” he maintained, adding, “We say that the safeguards which are available to this court [if it] were to order a retrial are sufficient to mitigate against any risk the pretrial publicity may cause”.

According to the prosecutor, “What the court will have to do is balance both loads right in the context of this case, particularly because two of the appellants — Storm and Palmer — enjoy far-reaching international acclaim”.

“This is a trial which was an open trial where the media was permitted to sit in, listen and report over the course of the trial all that transpired in court. This is the open justice principle at play, Milady, this is just a manifestation of what the open justice principle is, and Milady, when you consider the open justice principle in the context of this particular trial, we submit that there is bound to be a heightened interest in the trial and in any result of the trial. So if there is a conviction, there is bound to be interest and there is bound to be heightened interest, ” he contended.

In the meantime, prosecutor Lorian Tugwell, in relation to concerns about breaches of the appellants’ rights to a trial within a reasonable time and the likely breach if a retrial is ordered, said, “We believe there are remedies the court can look at”.

The antidotes, she said, include an order for an expedited hearing, the granting of bail for the appellants and legal aid since they have complained that they are unable to foot the bill for fresh trials, given the toll 13 years of court processes have had on their finances.

“I conclude by saying that the appellants’ rights to trial within a reasonable time and to bail were breached and we say, despite the breach, there is nothing to suggest a fair trial is impossible, contrary to what has been suggested,” Tugwell told the tribunal.

The hearing, which had been expected to end on Friday, will now continue on Tuesday to allow for attorneys on both sides to address issues raised during the various submissions.