The case against Elvis McKeever, of Cayman Brac, has been thrown out after Justice Philip St. John-Stevens said it was “entirely inappropriate” to proceed after it came to light that judicial staff had been consistently removing potential jurors from jury pools because they lived in the Sister Islands.
Former political candidate McKeever, 64, was due to stand trial on a charge of transmitting a dangerous communication and another of misuse of an information and communications technology network to defraud, abuse, threaten or harass, after a rant live-streamed on Facebook contained threats and allegations against the judicial system.
McKeever pleaded not guilty, and a jury trial was set for late 2022. However, during a case management hearing in September, his lawyer Prathna Bodden questioned whether it would be fair for the case against him to proceed with a panel of jurors that excluded Cayman Brac residents – when McKeever himself resides in the Brac.
Bodden’s challenge revealed that judicial staff had purposefully removed Cayman Brac residents from the jury list because of potential expenses Judicial Administration would incur by housing and transporting jurors to and from Grand Cayman.
The revelation resulted in Justice Marva McDonald-Bishop issuing a Grand Court order requiring that the matter be put back to allow for a new jury list, which was to include all suitable jurors from Cayman Brac as part of the main pool, from which the panel was to be selected.
McDonald-Bishop’s order also required that court officials provide sworn affidavits concerning the jury-selection process. However, the order was not complied with, and in October 2022 another Grand Court judge issued a similar order.
In January of this year, when the matter appeared before Justice St. John-Stevens, the orders had still not been complied with, prompting a dismissal application by Bodden which was opposed by prosecutor Orrett Brown.
During January’s hearing, it was also discovered that the court lacked the power to make the orders in the first place.
At the time, Bodden told the court, “Deliberately removing an entire group of otherwise suitable jurors for the sole reason of their physical addresses is no different than saying we are going to exclude all women from jury duty on the basis of their sex.
“Furthermore, the courts had not one, but two chances to correct this erroneous selection process even though, as it turns out, the court did not have the power to make those orders.”
Bodden also argued that allowing the trial to proceed, knowing that the jury was not truly selected randomly, could not be perceived as being fair even if the judge was to give proper directions.
In opposing the dismissal application, Brown argued that a fair trial could be achieved because the nature of the charges did not require specific knowledge related to Cayman Brac.
“Additionally, a stay of proceedings would be the absolute last resort, if a case is simply not triable, and we have not reached that stage yet,” Brown said. “Ultimately, the Crown is relying on section 14 [of the Judicature Act]; taking that into consideration we say it is not the place of the court to question why the orders were not acted upon, and with proper directions, a fair trial could be achieved.”
That section in essence means judges have no power to intervene in the selection process which is overseen by the Judicial Administration, even if the judges discover there is a ‘fundamental flaw’ with how the jury has been chosen.
The realisation that the prosecution knew about section 14 prompted St. John-Stevens to ask why they allowed the court to make an order that would be in breach of the law.
The judge then asked if the prosecution had intended to rely on section 14, why they didn’t make that argument at the time.
In response, Brown said, “At the first hearing, the Crown was not aware of section 14 and so the order was made at that time without the benefit of the said knowledge. At the second instance, however, we were aware of section 14 but chose not to act upon it, so as to allow the system a chance to correct itself.”
When returning his decision, St. John-Stevens stated that although the criminal court had no jurisdiction over the formalities of the jury-selection process, there was an inherent responsibility to uphold the public confidence in the judicial system.
“Giving the circumstances of this extraordinary case, this court finds that it would be entirely inappropriate to allow the matter to proceed,” said St. John-Stevens, who then dismissed the charges against McKeever and released him.
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