The criminal charge against Floyd Nicholas Bush contained two elements: that he supplied a substance to an undercover police officer, and that the substance was cocaine.
After seeing the cocaine exhibit and hearing how descriptions of it changed, a Grand Court jury last week found Bush not guilty.
The charge arose from an incident alleged to have occurred in June 2004, during a police investigation into the distribution of drugs at nightclubs. The operation was referred to as Excometh.
Two female officers, recently arrived on island, went to various clubs. Their task was to give suspects no more than the opportunity to break the law and then make what Crown Counsel George Keightley called a test purchase.
In summing up the evidence for the jury, Mr. Justice Alex Henderson reminded them there was no dispute that the defendant and the female officer did meet at the Next Level Nightclub and later walked to the O Bar.
The case for the Prosecution was that they stopped at the Cayman Islander Hotel, where the supply occurred. Bush denied this, giving evidence that the woman met someone else along the way.
There was no dispute that what the government scientist analysed was cocaine. The question was, did he analyse what the Crown said Bush had supplied? The Crown said he did. The Defence, conducted by Attorney Nicholas Dixey, said the jury could not be sure.
The evidence of the officers was that one of them purchased a small bag of white powder from Bush in the presence of the other.
The women gave the white powder to their contact officer, who heat-sealed it in an exhibit bag and labelled it. The log kept for the operation described the item as a white substance in powder form.
Bush was arrested and interviewed in October 2004. The officer who interviewed him showed his the exhibit, a white powder resembling cocaine.
In January 2005, the exhibit custodian described the exhibit as a brown substance.
Three weeks later the analyst, Dr. David Schudel, described the exhibit as a brown yellow liquid.
In his summary, Mr. Justice Henderson said that if it was the same exhibit it had changed colour between October and January and had changed to liquid by February. The exhibit in the courtroom was neither white nor brown, neither liquid nor powder.
Jurors had the opportunity to examine the exhibit, which looked like a beige crystal-like substance.
The judge referred to Dr. Schudel’s evidence. He said cocaine can change from a solid to a liquid if water had been trapped in the bag at the time it was sealed. It could also happen if the bag was poorly sealed and water got in afterwards.
The judge said he was sure jurors would not have forgotten that Hurricane Ivan occurred in September 2004, after the substance was sealed, but before it was shown to the defendant.
Dr. Schudel said water would not change the colour of the cocaine, nor would it change the nature of the substance. That is, if the liquid he tested was cocaine, the powder must have been cocaine also. He explained how it could change from powder to liquid, but not how it could change colour.
The Crown said jurors could be sure it was the same exhibit. The markings on the label of the exhibit bag are the same as the markings on the bag Dr. Schudel analysed.
Mr. Dixey had disagreed. He said the substance may have been tampered with or it might not be the same bag. The change of colour was unexplained.
The judge said if jurors were not sure the substance was the same, they had to find the defendant not guilty.
They did, and the verdict was unanimous.