Prosecutors and defence attorneys who have now spent four days presenting arguments for an appeal filed by convicted felon Tesha Miller are at one in pegging short-sighted legislators for a legal gridlock now facing the Appeal Court regarding Miller’s conviction.

Miller, who was charged with the offences of being an accessory before the fact and after the fact for the killing, was convicted in the Home Circuit Court in December 2019 and sentenced in January 2020 to 38 years and nine months’ imprisonment at hard labour for engineering the 2008 murder of former chairman of the Jamaica Urban Transit Company (JUTC) Douglas Chambers.

The sentence imposed on him for the offence of accessory after the fact was 18 months’ imprisonment at hard labour. The alleged shooter Klansman lieutenant Andre “Blackman” Bryan was, however, acquitted after a 6-1 majority verdict of not guilty was handed down in the Gun Court division of the Home Circuit Court in 2016 following his trial there.

Miller’s legal team, however, has been contending that a no case submission for Miller should have been upheld based on Section 35 of the Criminal Justice (Administration) Act under which he was tried.

The section states that “whosoever shall counsel, procure, or command any accessories before the other person to commit any felony, whether the same be a felony at common law or by virtue of any statute passed or to be passed, shall be guilty of felony and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted, as an accessory, may be punished.”

Miller’s attorneys are arguing that a correct interpretation of the section is that an accessory before the fact cannot be properly convicted of that offence unless the principal has already been convicted of the substantive offence. They said given the fact that Bryan — who was named on the indictment as the principal — was freed, Miller should have been released as well.

Prosecutors, who on Wednesday began responding to the concerns raised by the defence, had been forced to pull back — after several questions from the judges regarding the arguments of the defence on that score — promising to return with a written submission on the issue.

Addressing the court on Thursday morning a representative of the Crown said based on the legislation the prosecution would have been unable to indict for more than one principal offender in the case.

“There was an oversight by Parliament, because what happened is that they did not make provision for what would happen if there were two offences turning on the same set of facts,” a prosecutor told the panel of judges.

“It is our submission that the intention was to allow for a scenario where an offence such as murder is going to be joined in one indictment that would allow them [principals] to be tried for joint offences,” she said.

In the meantime, the Director of Public Prosecution (DPP) Paula Llewellyn disputed arguments by the defence that “the prejudicial evidence led in the case was overwhelmingly, incurably wrong and unfair to the accused” and that opening assertions made by prosecutors in the trial indicating that Miller was the head of an elaborate criminal organisation that killed 13 family members of the sole material witness, was involved in extortion, and used those monies to pay lawyers to defend members who found themselves in trouble with the law was “prejudicial material” .

According to the DPP, it was important that the main witness give his background (which included his reference to his own membership in the gang as an area leader and murders and robberies he committed) as it shored up his credibility as a witness when it came to the assertions he made about Miller’s donship, which rested on supporting community youth, holding the peace in the community, giving them guns, renting cars for them to drive, and sending him to rob, shoot, and kill.

“Without the background evidence, the Crown’s case and his testimony would make no sense,” the DPP said.

She noted that the judge, in her instructions to the jury, had made it clear that they were not to use the background material to convict the accused.

The DPP said there was nothing in the conduct of the judge in that respect to colour the proceedings unfairly.

As it related to the concerns about the evidence relating to the deaths of the 13 family members of the witness, the DPP emphasised that from the transcript of the trial the witness at no time attributed the cause of death of his relatives to Miller. She said he referenced the deaths when he was being questioned about his reasons for deciding to testify against his former boss. According to the witness, it was after the deaths, which took place between 2013 and 2015, that he decided he had to “put a stop” to what was happening.

“Looking through the transcript there was nothing indicating that the witnesses 13 family members were killed by the accused…what the witness is saying is that the death of his family members made him decide,” the DPP said.

She noted that the Crown did not at any point seek to “lift the veil to say how they died” and said this was a deliberate decision by the prosecution.

Meanwhile, attorney John Clarke, who is representing Miller, said that presentation of the evidence might have unfairly influenced the jury to return a verdict of guilty and influenced the jurors to believe that Miller was guilty of other crimes and so was also guilty of engineering Chamber’s murder.

He contended that the introduction of material not germane to the indictment could incite the jury to return a verdict of guilty.

“The oblique attack that lawyers were paid with extortion money would have been so deadly to the accused,” Clarke said. According to Clarke, the insinuation that Miller was responsible for the death of 13 family members of the main witness was not relevant to the case and should have been excluded.

He argued that even if there had been a “strong exhortation to the jury to disregard the evidence about the extortion money, the 13 family members being killed would have been insufficient to cure the unfairness”.

According to Clarke, the only way to cure this would have been to discharge the jury.

“The evidence led in relation to extortion money being used to pay lawyers was not relevant to any material in the indictment nor the evidence about the killing of the 13 family members,” Clarke told the court earlier this week.

The matter resumes at 9:30 this morning with the Crown indicating that it will complete its response to the 14 grounds of appeal filed by Miller’s lawyers.