SENIOR defence attorney Lloyd McFarlane has disputed talk that there is bias amongst defendants towards jury trials, instead asserting that dates for judge alone trials are being taken up rapidly.
In an interview with the Jamaica Observer, McFarlane said he has done several judge alone trials since the novel coronavirus pandemic took a toll on court proceedings, and defendants have been requesting them.
“Even when the accused man is on bail, they still would choose that because of the dates that they would get for jury trials, which are much quicker dates for judge-alone trials at the outset,” McFarlane said. “Dates have now been pushed back a bit now because more people are now opting for judge-alone trials. The thing is, however, that it is an option that the defendant has. So, one of the considerations that a defendant has is the amount of time that it will take. If the defendant is on bail, they will probably be more likely to sit well with a jury trial anyway, although it will be well down the line.”
The debate on jury trials has become more intense following recent pronouncements by Chief Justice Bryan Sykes.
According to the chief justice, with trials being “pushed further and further back” because of the suspension of jury trials due to the vagaries of the pandemic, “it is just a matter of time before someone is going to make the case that their constitutional rights to a fair trial within a reasonable time are being violated”.
Speaking during the opening of the Hilary Term of the Home Circuit Court in downtown Kingston recently, the chief justice, who in 2020 had urged individuals to opt for judge alone trials as it was uncertain as to when jury trials would resume, said, “As far as jury trials are concerned, I think the time has come now for us to revisit whether we should retain jury trials. I remember when I spoke at the Assize Service in 2020 and I indicated 'Who knows when jury trials will resume?' We are now roughly two months away from three years since the pandemic arrived on our shores and we have not been able to resume jury trials.
“The variants and the fluctuations in the positivity rate in the context of low vaccination, all of these factors combine to make jury trials very difficult to contemplate and to manage. It seems to me that the time has come for us to do away with jury trials,” the chief justice stated.
Justice Sykes also added that there was no evidence to suggest that “jury trials are an inherent better quality of justice than bench trials”.
But, the senior jurist said while he has seen an uptick in the requests for judge-alone trials, he does not agree with abolishing jury trials “simply because we are unable at this time to provide the option”.
“The option should always be there. We must not reach a situation in this country where other jurisdictions, people who live in the United States, England or whatever, have an option of having a jury trial and we don't have the option. We must always have that option.”
McFarlane further pointed out that the notorious Klansman Gang trial, in which 33 defendants are facing the courts on gang-related charges, is the fly in the ointment of judge-alone trials at the Supreme Court.
“What has really been hampering the movement of even the judge alone trials, of course, is the fact that two of the courtrooms are totally tied up for two terms. Those are just the facts,” McFarlane said.
Besides, McFarlane said the courts and the chief justice have “been doing all they can to get jury trials up”.
“You will see that there is one particular courtroom, courtroom 3 [Supreme Court], that has been retrofitted to try to deal with at least some jury matters there and they have been, over the past year or so, ... setting dates at which point they were hopeful that jury trials would restart. But what has happened now is that with each surge, like for example with Delta and now Omicron, plans have been sort of syncopated because of the circumstances,” the senior attorney said.
He added: “So, it's not that the courts and the court administration have not been trying to get jury trials up; they can't. They had even sent [out for] jurors for this term and they had to issue a notice to jurors who got notices to ignore them because it just won't matter now.”
Last January, at the start of the Hilary Term, the Court Administration Division indicated that jury trials would resume on a phased basis for the Home Circuit Court and some rural circuit courts for the Hilary Term. It said then that jury trials for matters excepting where the death penalty is in issue will proceed at courts which can accommodate jurors with adequate space for physical distancing to prevent the spread of COVID-19.