ARE FAIR TRIALS POSSIBLE?
GETTING a fair trial in Saint Lucia is impossible, say four attorneys who were panelists on last Monday evening’s “Discourse” series at GIS studios as they delved into the topic, “Fundamental Rights and Freedoms”.
The discussion, an activity on this year’s Independence calendar, zeroed in on the pros and cons of the Saint Lucia Constitution, for which a Commission made various recommendations for reforms some years ago. The panelists felt that the Constitution was anachronistic in many respects and needs some clarification and/or changes.
However, The VOICE wanted to know whether the ostensible lax in enforcing the law had resulted in many people feeling that they can no longer get a fair trial – a right afforded them in the Constitution — with the advent of social media, as well as the traditional media, compromising their cases.
Alberton Richelieu said that while there is legislation in place to curtail such behaviour, damage control becomes virtually impossible even after those who breach the laws governing publishing and/or discussing such information are reprimanded.
“Firstly, most of these cases are done before a judge and jury. The jury is selected from a pool of persons who, most probably, may have seen a lot of these different things on whatever social media. By that time, it might sometimes not been their fault. But before they actually come and sit in the juror’s chair, they have a preconceived notion. Therefore, it’s likely to affect (the process),” Richelieu explained.
He added: “I do not know how it might be remedied but sometimes people have made up their minds based on what they see in relation to the case virtually being tried on social media. I think that has created a problem for me.”
Richelieu blames “irresponsible journalism” for the problem, adding that “assuming that that person is not charged, that is irreparable damage to one’s reputation and that we have to be very careful about. It is not only a question of unfairness in terms of a trial, but also unfairness to a person’s reputation.”
“Separate and apart from the sanctions which can be imposed by particular legislation, I think responsible journalism dictates that that kind of behaviour cannot continue,” he said.
Just last week, acting Director of Public Prosecutions, Daarsrean Greene, issued a public appeal to the media and general public to desist from discussing crucial elements of ongoing court cases, warning that the practice breaches Section 380 subsections (g) and (h) of the Criminal Code and that imprisonment can result from the indictable offence.
Aside from journalism, social media came under fire for contributing to many cases being tossed out by the court. Kim St. Rose, who served as the island’s Attorney General in the previous administration and moderated the discussion, suggested that the new technology has become a Pandora’s Box the judiciary could well do without.
“There’s undoubtedly a lot of prejudice caused by social media,” she said. “But these are the times in which we live and we have to adapt to it. But, on the other hand, of course, the judge usually instructs the jury about what they should disregard. I don’t know how much regard the jury really pays to that.”
Horace Fraser agrees, saying that the difficulty lies in the human factor sometimes taking precedence in such matters, including people forming opinions after being exposed to information. He said it might be difficult for jurors to follow the judge’s directions to disregard whatever elements of the case they might have been privy to via other sources.
“This thing is really uncontrollable,” Fraser lamented. “I don’t know what legislation can control social media. But I think the judiciary may have to respond and look at having a single judge do trials and forget about the jury in some instances. They do it in India and South Africa – we can do it here, too.”
Andie George said living in small societies such as Saint Lucia often poses such challenges. However, he believes that people need to follow the law and not subscribe to tainting matters before the courts through reckless reporting and discussions.
“There is one particular news media that seems to always be at hand and reciting a lot of information, even taking photos of certain alleged incidents. It seems to be highly subscribed. I don’t think anybody can have a fair trial, regardless of whether it’s a single judge or a jury. I really don’t think in this era that anybody can have a fair trial, regardless of who sits and decides what the fate of the individual is,” George explained.
He added that larger countries such as the United States afford defendants a better chance at a fair trial because potential jurors living in one area might be oblivious to an incident that occurred in another area, a virtual impossibility in Saint Lucia.
“I believe everybody’s trial is prejudiced. The extent to which it is may depend on presently – in my view – the quality of the jury. You find that where you have a more intelligent jury, they tend to consider the evidence in the manner in which the judge would direct them. Other than that, people tend to have their biases and will decide one way or the other in any event,” George said.
St. Rose believes that while the media must keep people informed, it must do so in a responsible manner and not become overzealous in their reporting so as to prejudice the outcomes of cases. Richelieu, too, agreed that while the public wants to be informed, it must be informed in a fair, proper and responsible way.
However, George believes that the root of the problem stems from media practitioners not following the basic tenets of journalism. He called on the media to be more responsible by acquainting themselves with the guidelines so as to protect not only people’s right to a fair trial but also themselves from the legal consequences of bad reporting.
“There’s a lot of irresponsible journalism going around. At the forefront of the mind of the journalist, they should always remember the maxim that someone is innocent until proven guilty. No matter how overwhelming the evidence is, that must be at the forefront of your mind. So at the end of the day, you must report in a manner that protects the person’s apparent innocence. I think we fail in that regard,” George explained.