Legal aid issues aired
Larry Ricketts and Kirkland Henry, charged with the murder of Estella Scott Roberts in October 2008, have had their trial set for 26 January 2010.
Following their not guilty pleas in January, trial had been set for 3 August. However, the question of which attorneys would represent them was not finally settled until last week.
On Friday, Justice Alexander Henderson agreed it was not realistic to expect that attorneys would have enough time before 3 August to study the papers in the case, consult with their clients and their lead attorneys.
Henry continues to be represented by attorney Ben Tonner, while Ricketts is now represented by Attorney Lee Freeman.
The defendants, who have been in custody since their arrest on 27 October, were brought to court seven times since 22 May as the judge worked his way through the issues involved, including legal aid.
Mr. Tonner has been on record for Henry since January. In May he advised he would be coming off record because he could not get legal aid approved for a more experienced lead counsel, which was necessary because of the seriousness of the charge (Caymanian Compass, 5 June).
He was urged to stay with the matter, especially because he had the confidence of his client, while the question of legal aid was pursued.
On 3 July, Mr. Tonner advised the court that he had received permission to hire a Queen’s Counsel.
Meanwhile, Ricketts had written a letter to his attorney, John Furniss, saying they did not see eye to eye, so he did not want Mr. Furniss to represent him anymore.
Legal aid was approved for him to have a junior counsel and lead counsel, but the difficulty was finding someone to act for him.
Mr. Tonner reminded the court of the limited number of local attorneys willing to take on this sort of work.
Justice Henderson wondered if Mr. Furniss might come back into the case. ‘It’s one thing to withdraw simply because there is a disagreement between client and attorney, but another to be forced to withdraw due to some ethical consideration.’
The judge pointed out that the client does not have the right to instruct his attorney on many matters. ‘The client determines whether to plead guilty or not guilty and whether to have a jury or non-jury trial. But when it comes to matters of tactics and that sort of thing, it is up to the barrister alone, the barrister as a professional. That’s my firm view of it.
‘I can’t say any more because I don’t know what the disagreement may have been about. I do know that sometimes counsel are tempted to withdraw in situations where they probably should just say no to the client,’ he concluded.
The matter was adjourned for a week and the judge said he would speak with Legal Aid Officer Jennifer King meanwhile.
On 10 July, Mrs. King reported that she had been able to contact two attorneys about representing Ricketts. One already had a full schedule and the other was ‘interested’ but unable to attend court that day. Justice Henderson asked that the second attorney come to court Monday at 9.45am.
On Monday, 13 July, Justice Henderson announced in open court that he had had a conversation with Attorney Scott Wilson. He had been told that Mr. Wilson’s firm was not taking any more legal aid cases because of the slowness of getting paid.
‘I’ve asked him to speak to his firm about changing that policy,’ the judge said. Meanwhile, he put the case over until Friday to give Mrs. King more time to contact attorneys.
On Friday, Mr. Freeman confirmed that he had agreed to take over Ricketts’ defence and he requested a transfer of the legal aid certificate. He advised that 3 August was too soon for the defence to prepare for trial, especially since his task now was to instruct a lead attorney.
Mr. Freeman noted that he had been given a list of three senior attorneys from Jamaica who might take the case. He questioned whether the attorneys on the list would coincide with his client’s right to be represented by the attorney of his choice.
Justice Henderson replied that every defendant has the right to representation of his choice. ‘The question is whether the state is obliged to pay for his choice.’
Attorney David McGrath, who stood in for Mr. Tonner, confirmed on behalf of Henry that they did not have a leader yet because the trial date had not been settled.
Justice Henderson said he did not believe that the attorneys named on the list given to Mr. Freeman were the only ones who could be selected. The criteria are that attorneys be qualified to practise in this jurisdiction, that they are willing to work for the legal aid fee and they are available to take the case.
He set 21 August as a plea and directions date and hoped both leading counsel would be retained by that time. They would not have to be present on that date, he explained.
Mr. McGrath expressed concern that the trial date was distant. He asked if attorneys could look for an earlier possible date. The judge said yes, but everyone agreed that 26 January would be set for the trial to go ahead if no earlier date could be arranged.