The judge's summation is of vital importance
Stabroek News
May 23, 2002
Dear Editor,
I begin my response to Mr Nigel Hughes' letter captioned "The jury rendered the verdict, not the judge" (17.5.02) with reference to a letter by Mr Deryck Bernard (16.5.02). In that letter, Mr Bernard was outspoken in his criticism of the failure of civil society to become involved in many social issues in Guyana. Mr Bernard laments the absence in Guyana of a phenomenon that he, Mr Bernard says, is so strongly present in Trinidad and Tobago, that is, non-political voices.
What Mr Bernard needs to understand is that in Guyana, non-political voices once raised are deemed as political voices and accusations of political partisanship are thrown at you. This is the predicament confronting independent analysts in this country.
In the case of Mr Hughes' letter. I penned a disagreement with the acquittal of a murder accused. In responding to me, Mr Hughes says I wasn't in court. When an appeal is lodged against the verdict in a high court criminal case, with the judge's summation as the basis of such an appeal, are the Court of Appeal judges asked if they were there? I was/am familiar with the judge's direction to the jury. The fact that Mr Hughes did not see me in court did not mean I wasn't there. Now, this is an interesting legal point and I will pointedly ask Mr Hughes: your statement of not seeing me, does that mean I was not there?
Mr Hughes said my presence escaped him. Maybe I am not inclined to manifest my presence when I go to the high court. Think of that Mr Hughes.
Mr Hughes said it is the jury not the judge which makes the verdict. Come on Nigel, you have to argue with more academic precision. Juries are lay people who know nothing about the law, legal points and finer legal points. This is why in law, there is someone called the legal interpreter who in political theory is called the independent referee. These twelve non-law, lay persons listen to the summation of the defence who says acquit. They listen to the prosecutor who says convict. And guess who they are more inclined to listen to? The third summariser, the independent referee, which in the world of justice is known as the judge. The people of the world have grown up to see judges as impartial, and as a matter of common sense are more inclined to respect their analysis than the defence attorneys and the prosecutors. So crucial is a judge's summation in a jury trial that if bias or incompetence is present, then an unjustified acquittal or unfair conviction can be the result.
I would like to remind readers that in very complicated financial cases involving extensive fraud, jury trials are sometimes dispensed with. I believe (though I could be wrong) this happened in the trial of the Maxwell brothers in the UK. The evidence is so technical and complicated that the jury becomes irrelevant in these circumstances. To put it plainly then Mr Hughes, the judge's summation is the clincher.
I don't know how familiar are lawyers with the work of Sigmund Freud, but Mr Hughes was certainly under the influence of Freud when he replied to me. One of my contestations was that in many jury trials, inconsequential inconsistencies which have no legal substance can be shaped into important motifs depending on the histrionic talent and grammatical ability of the lawyer. And in a conspicuously Freudian way, Mr Hughes supports my thesis with his own example from the case. He says that the engineer admitted in court that when he saw three guys running down the street with guns in their hands, he first thought they were policemen. What is the relevance of this point to the guilt of the accused. Who cares about the psychological conceptualizations of a witness in a murder case? What relevance is it if a witness says that when he saw three gunmen running down the road, he thought it was a movie Steven Spielberg was making in Georgetown? What is important is the description of the men by the witness, their identities, what clothes they had on, and what they had in their hands. You don't have to be a lawyer to know that what the witness thinks, is evidentially inferior to what he sees. I would like Mr Hughes, the lawyer for the defence in this particular case, to know that I have no objection to his approach to the case. He was paid to defend his client and morally he was obligated to.
I agree with Mr Hughes that accused persons must be convicted on substantial evidence. And I would raise my voice and pen against the decision of anyone who was improperly convicted in this country. Likewise I should, and will raise my voice and pen against decisions of acquittal that were unfair. Innocent people are convicted and guilty people are freed in the courts of the world all the time. I would like to think that Mr Hughes supports my claim that denunciation of both of these travesties is a moral duty of all of us.
Yours faithfully,
Frederick Kissoon