The Cayman Islands Court of Appeal has rejected Sheldon Brown’s appeal against a conviction for attempted murder and the resultant sentence of 22 years.
A Grand Court jury in January 2006 found Brown guilty of attempting to unlawfully kill James Fernando Martin on the night of 17 August 2004 at the Cayman Islander Hotel. Martin had been shot at least three times.
On Monday this week, Alastair Malcolm QC told the court the appeal was being argued on the single point of jury bias. He said Brown learned some months after his trial that two members of the seven-member jury had close relatives who had been policemen.
This was important, he contended, because it had been known before the trial started that Brown’s defence would involve an attack on the police and his assertion that he had been set up by police who were out to get him.
The trial judge knew this and so had instructed all potential jurors to let him know if they or anyone in their immediate family had ever been employed by the Royal Cayman Islands Police Service, Mr. Malcolm explained.
This instruction was given on the first day of jury selection. It was not repeated the second day, but jurors selected on the second occasion would have been present the first time. Mr. Malcolm raised four possibilities: Either the jurors with policeman relatives did not remember the judge’s instruction or they deliberately chose not to say anything or they misheard or misunderstood the judge.
Justice Geoffrey Vos pointed out that the relatives were employed with the police 18 and 30 years before the trial. ‘We need to know the ages of the jurors,’ he said.
A check of the records showed that, in one case, the juror was a child when her father left the police service.
Mr. Malcolm said a child is impressed with what the father does and is not critical of how he carries out the job. The impression may be stronger at a tender age, he suggested.
Although the police service was some time ago, the danger was not diminished that a juror would start with the mindset that the police are correct and the defendant is not, he said.
As to the other juror, the relationship was a younger brother. Justice Elliott Mottley noted that the brother had been asked to resign from the police service, then had tried to withdraw his resignation but was not allowed to.
Acting court president Justice Ian Forte suggested bias could easily be against the police if in the juror’s mind the brother had been badly treated by the force.
Mr. Malcolm observed that, because of court rules, they could not ask the juror.
He also pointed out that the Defence would have objected to these two jurors if their connection with police had been known at the time the jury was selected.
The agreed test was whether a fair-minded and informed observer would conclude there was a real possibility the jury was biased.
Andrew Radcliffe QC responded on behalf of the Crown. He said the simple fact a potential juror had a relative who had been a policeman would not have resulted in that person being immediately excused.
He referred to a portion of the transcript of proceedings where a woman started to tell the judge she was related to someone in the case. The judge had stopped her and said if her name was called, she could tell him then ‘and we can decide whether you are fit to be empanelled.’
Mr. Radcliffe said the length of time since the relatives ceased to be policemen had to be relevant: ‘These are historic things rather than recent.’
Asked what he would say if the relatives had been currently serving officers, Mr. Radcliffe replied that it would depend on the circumstances.
With submissions concluded by 1.30pm, Justice Forte said the judges would consider the court and give its decision the following morning because both counsel were visiting. He cautioned there would not be time to put the reasons for the decision in writing.
On Tuesday, he said the judges had given the matter some very serious deliberation, as they were expected to, and were dismissing the appeal. Brown’s conviction and sentence were affirmed.
Reasons will be given in writing at a later date.
Mr. Malcolm was instructed by attorney Clyde Allen. Mr. Radcliffe was assisted by Solicitor General Cheryll Richards.
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