Defence lawyers access to DNA worry over testing
The Patterson Administration’s stated intention to resume hangings in response to Jamaica’s high murder rate has raised concerns among defence lawyers and legal advocates that innocent people could be among those put to death.
Their concerns turn on what they describe as an unfair advantage prosecutors have against people accused of crimes because the criminal-justice system’s limited resources – forensic labs, forensic pathologists, and DNA testing – are all in the hands of prosecutors and police.
People accused of crimes generally have no easy access to independent laboratories and forensic experts – not to mention DNA testing that Jamaica’s police use as part of their criminal investigations.
“We have to depend on the experts from the government laboratory – even for basic interpretation of the data,” said Leroy Equiano, a lawyer who directs the Legal Aid Clinic. “So when they (the police) say there’s a match, that’s basically it: There is a match.”
Nancy Anderson, the former executive director of the Legal Aid Council that oversees the Legal Aid Clinic, said Jamaica’s defence lawyers are still coming up to speed on the use of DNA evidence, and they’re thus not yet integrating it fully into their cases, or challenging it when appropriate.
“Most (defence lawyers) are relying on government forensic experts,” said Anderson, now the legal officer for the Independent Jamaica Council for Human Rights.
Earl Witter, a veteran criminal defence lawyer, agreed. “To tell the truth, I’m learning more about (DNA) all the time,” he said, adding that he recently contracted with a private expert to scrutinise evidence being put forth by the police laboratory.
Bert Samuels, another veteran criminal defence lawyer, said: “What often happens is that DNA tests are used against a defendant, but we don’t have it to put forward.
“There is only one laboratory, and it’s the police laboratory. The laboratory is open to everybody, but the independence of the laboratory is open to question.”
Samuels’ comment summarises the views of many in the legal profession that prosecutors hold all the cards, thus eroding a strong adversarial system – one of the fundamental checks and balances of a fair trial.
People accused of crimes, they say, can more easily fall victim to prosecutorial misconduct and errors; and defence lawyers are less able, during a trial, to highlight honest differences of opinion and challenge the quality of forensic evidence; and that includes DNA tests.
Attorney-General A J Nicholson agreed there’s room for improvement in Jamaica and even developed nations. He said, however, that Jamaica’s extensive appeals process in capital murder cases gives the defence a major advantage, and this minimises miscarriages of justice.
“The prosecutor has more resources, but the other side has at least 12 steps (to overturn a conviction). The prosecution has only one chance for a conviction, and that is a compensating factor,” he said.
The cost of a DNA test runs about US$800, making it too expensive for poor defendants, most of whom are clients of the Legal Aid Clinic, the publicly-funded facility that provides lawyers for defendants who cannot afford them.
“We don’t have any fund for any kind of experts, DNA or otherwise,” said Anderson. “And we really, frankly, have never had a request from an attorney who has been assigned to a client for such tests.” However, she said there’s a possibility that funds could be approved for such tests, although this is not certain.
Defence lawyers can’t recall a case when DNA evidence was used, post conviction, to release a person wrongly convicted of a crime. That has happened on more than 100 occasions in the United States, one of the few developed countries to use the death penalty.
Two years ago, Illinois governor, George Ryan – a pro-death penalty Republican – imposed a moratorium on executions after expressing concerns about “flaws” in his state’s criminal- justice system. He pointed out that since 1977, 13 death row inmates had been cleared of murder charges, compared to 12 who were executed.
Some of the freed inmates were cleared by DNA evidence; the cases against others collapsed after new trials were ordered by appellate courts.
Last month in Manhattan, New York, a judge threw out the convictions of five young men sentenced for beating, raping and nearly killing an investment banker who was jogging in Central Park 13 years ago. The men, who had confessed, already had served seven to 13 years in prison. But last January, another convicted murder-rapist admitted to the crime. DNA and other evidence supported his story, casting doubt on the convictions and confessions.
The growing number of overturned convictions in the US has raised the question here of whether similar miscarriages of justice happen in Jamaica.
Anderson said the possibility of innocent people being convicted of murder is a definite concern – one that the Legal Aid Council has been working to remedy. She disputed Nicholson’s contention that a lengthy appeals process protects wrongly convicted persons.
Some months ago, the council submitted a proposal to the European Union for funding to help bolster the resources and legal expertise of defence lawyers, she said.
The proposal, among other things, seeks funding to train defence lawyers on how to better deal with forensic evidence, psychiatric considerations, and DNA testing. It’s hoped that funds also will be allocated to allow defence lawyers to hire their own experts, she added.
“What we are talking about is making defence counsels more effective, particularly in capital murder cases,” said Anderson.
She said defence lawyers also need to be better prepared for post-trial hearings and noted that Jamaica is likely to adopt the example of other Caribbean nations – requiring that convicted murderers face post-trial hearing to determine if they go to prison or to the gallows.
Defence lawyers, she explained, will need to better prepare themselves to give their clients the best possible representation during such hearings.
Ultimately, the goal is to ensure only guilty people – and not innocent ones – are punished, said Anderson.
In the United States, legal experts and polemicists differ on the morality of the death penalty, and they disagree over its value to deter crime. Most say it’s more unjust to execute an innocent person than to let one or more killers go free.
Witter, the defence lawyer, worries that such a view does not hold sway in Jamaica, making it all the more likely that innocent people will be executed.
“My own reading of popular sentiment is that it really does not matter if one or two innocent people are executed; and that, incidentally, is the fundamental basis of my unwavering and unrepentant attitude against capital punishment,” he said.
Human rights groups agree wholeheartedly. But the majority of Jamaicans, not to mention the families of thousands of murder victims, feel the gallows is long overdue.
Prime Minister P J Patterson is obviously aware of this sentiment. For, in an address to the nation on December 1 in which he announced his administration’s new anti-crime measures, he said: “The Jamaican people are substantially agreed on the need to resume the death penalty. We intend to heed the voice of the people.”
Nicholson said Jamaica could introduce lethal injection as a more palatable execution method. Ideally, a world without capital punishment would be preferable, he said.
“I hope to God that two things will happen one day: that capital punishment is abolished, and that the economy will grow to such an extent that every person accused of a crime will have the same resources as are available to the prosecution,” he said.