No day in court

Come July 13, it will be four years since former Minister of the Environment Kenred Dorsett was charged in a Magistrate’s Court with extorting $120,000 from businessman Johnathan Ash.

He was charged with four counts of extortion, four counts of bribery and one count of misconduct in public office. Prosecutors now intend to proceed on the bribery charges only.

The former minister was freed on $50,000 bail after he spent 48 hours in custody.

Dorsett was the first of three former Progressive Liberal Party (PLP) parliamentarians accused of abusing their office for financial gain.

The arraignments came after Free National Movement Leader Dr. Hubert Minnis had repeatedly vowed in opposition that “corrupt” members of the (now former) Christie administration would be dealt with.

All during the campaign, “They ‘gern’ to jail” was repeated with great jubilance by members of the electorate who believed a corrupt administration was governing our affairs.

Many voters were anxious to see PLP politicians locked up.

But while Minnis and the FNM cruised to victory in 2017 after successfully trying the PLP in the court of public opinion, to date, corruption has not been proven.

Former Minister of Labour and National Insurance Shane Gibson and former Senator and Public Hospitals Authority Chairman Frank Smith have both been acquitted.

But four years on, Dorsett awaits his day in court.

Four years on, his life remains on hold.

When he was granted bail in 2017, the judge ordered him to surrender his travel documents and ordered that he seek court approval to leave the jurisdiction, according to Wayne Munroe, QC, who represented him.

Four years on, the people have yet to see or hear the evidence the government’s lawyers claim to have.

We make no comment on Dorsett’s guilt or innocence – a competent court will decide. But we find it an injustice that four years later, the matter is still not concluded.

It does not matter one’s politics – or whether he or she has any political leanings whatsoever – all Bahamians should be concerned that our judicial system has been unable to dispose of this case by now, notwithstanding the difficulties COVID caused the judiciary.

 The continuing reality that Dorsett faces is no doubt impacting his ability to earn a living. Dorsett is still a licensed commercial attorney. Those close to him say his work has practically ceased as a result of the cloud hanging over his head.

While this matter is profoundly personal to the former minister, to his wife, children and his wider family, it is also an injustice to the Bahamian public to wait this long to learn whether a former minister abused his position in office and was indeed corrupt as he is alleged to be.

A prominent individual opining on his matter over the weekend (with no expectation of attribution) invited us to consider “the possibility that there is a link between realities such as this and the indications that an increasing number of our citizens are declining invitations to seek elected office, regardless of party affiliation”.

The individual also commented, “Our PM endeavors to encourage us to show compassion. In that spirit, does compassion say that it would be right for this matter to be concluded one way or the other – sooner rather than later?”

The legal maxim “justice delayed is justice denied” readily comes to mind.

In making this observation, we regret if the reader’s takeaway is that this is a sympathy piece for the former minister. That is not the intent.

We state upfront and will highlight in this space the tremendous challenges the judiciary faced, and still faces, due to the coronavirus pandemic, and also acknowledge that while Dorsett’s matter is high profile and of great public interest, the broader issue here is that there are hundreds of other matters that have been impacted by the many difficulties that face the judiciary.

Challenges

In seeking to determine the status of the Dorsett case, we reached out to the Director of Public Prosecutions (DPP) Garvin Gaskin, who was open in discussing the particular challenges faced by the judiciary in getting such cases heard.

Gaskin said there was a case management hearing in the Dorsett case earlier this year and another is expected, although he was not sure when.

“I don’t want to say anything out of turn,” he said. “You have quite a bit of matters in the mix. The profile of that matter may be high, but there are armed robbery matters and murder matters, matters that are much older (than Dorsett’s).”

The Dorsett case is before Senior Justice Bernard Turner.

Gaskin said once the case management is ironed out – including a determination on the availability of counsel – “then we will be set and go from there”.

Jamaican QC Keith Knight headed the defense of both Gibson and Smith and will lead the defense in the Dorsett case.

The AG’s office also hired foreign QCs in both the Gibson and Smith cases, but the government has not been forthcoming when questioned on how much that cost taxpayers.

While Dorsett is free awaiting trial, many others are in prison awaiting trial on their charges.

The issue of a case backlog in our judicial system is a perennial problem.

Over the years, the delay in getting cases before the courts has resulted in individuals charged with serious crimes like murder being released on bail. Police allege that some of them have committed more crimes after being released, frustrating efforts to bring the level of serious crimes under control.

Once some of these suspects are acquitted, there is no compensation for the time they spent in prison, noted Munroe, who told us on Monday he has represented some people who have been electronically monitored for up to three years, and some who have been subjected up to five or six years to signing into a police station as a condition of bail.

“All of that affects you and, of course, you can’t plan for your future with something hanging over your head,” he said.

“Cases are qualitatively impacted by the fact that as time passes, witnesses die as the normal course of life runs, people’s memories fade, all manner of things that time brings about. So that affects the quality of justice when a case is heard a long time after [the crime is alleged to have happened].”

Dorsett’s trial had been scheduled for March 23, 2020, nearly three years after he was arraigned.

The trial was delayed when the coronavirus pandemic struck.

All new trials in the Magistrates’ Court and Supreme Court were delayed, with Chief Justice Sir Brian Moree at the time acknowledging that the move will worsen the backlog of cases in the court system.

“We are going to make every effort to ensure that cases which are displaced as a result of these protocols will get some priority in terms of rescheduling when life gets back to normal,” he said.

“But there will be some dislocation and there will be some inconvenience and I’m afraid that’s the price we will have to pay given the crisis we are currently in.”

Jury trials did not resume until December 2020.

“It didn’t just throw off Dorsett’s matter. It threw off hundreds of matters … Between those months, you’re talking about a bunch of matters that were set for trial,” said Gaskin, while noting that guilty pleas have increased, saving a lot of judicial time.

In our chat with the DPP on Monday, we asked him whether he is concerned that the longer matters like the Dorsett matter take to be tried the less likely it is that justice will be served.

Gaskin said, “Obviously, there is some reason to say that the longer it takes it could affect efficacy. You clearly want to bring matters to trial quickly – where your witnesses are in place, ready to go, enthusiastic and all that other good stuff.

“That is certainly the case that it is better [to bring cases quickly but] it doesn’t necessarily follow [that it reduces the efficacy of the case] because the record has shown [otherwise].”

He pointed as an example to the case of Kofhe Goodman, the man convicted of murdering 11-year-old Marco Archer in 2011. It took a full decade after the murder for the case to work its way through the system and be concluded at the appellate court. 

Goodman recently lost his bid to overturn his 55-year sentence.

Gaskin was not advocating that cases should take that long to work through the judicial system, but was merely making the point that justice could still be served even with long delays.

“It was 10 years, but we still got the desired result,” he said, acknowledging the anguish Marco’s family faced in the wait for justice.

In the 2020 Annual Report of The Bahamas Judiciary, Justice Cheryl Grant-Thompson addresses the fair trial matter in an article that examined the challenges COVID-19 presented to the judiciary. At the time jury trials were suspended, she had almost completed a murder trial.

In making her decision on whether the defendant could still get a fair trial, she took into consideration a ruling of the Court of Appeal in the Stephen “Die” Stubbs case. 

“The decision of the court was that although a considerable amount of time would have elapsed, the defendant was still capable of receiving a fair trial in the circumstances …” she stated.

Resources

Regarding the general issue of a case backlog, the courts have faced significant resource issues.

Five new justices were recently appointed (with four already sworn in). Three of the judges have been assigned to the criminal division. 

In his contribution to the budget debate in the Senate recently, Attorney General Carl Bethel noted that one of the challenges facing the Office of the Director of Public Prosecutions is insufficient prosecutors.

The office has recently lost three senior prosecutors to the judiciary, placing an added strain on the prosecutorial team.

Bethel said it is envisaged that at least 12 new prosecutors will be recruited during the 2021/2022 budget year to augment the current team to service any criminal court at the Supreme Court with the current numbers.

Gaskin said while there are resource challenges, the conviction rates have never been higher, pointing to the high level of productivity of the prosecutors in his office.

“That is something that is hardly ever focused on or touted,” he said. “It just tells you that even with resource challenges these folks are doing an excellent job.”

He noted that from January 2020 to June 2021, there were 129 convictions and 27 acquittals. The conviction rate in the circumstances is 83 percent.

There were also 49 nolles prosequis.

Speaking of nolles, Munroe said the DPP’s office should weigh whether it still makes sense to bring the Dorsett case for trial.

While the Minnis administration failed to keep many of the pledges it made prior to taking office and in the Speech from the Throne, an important promise it did keep was establishing an independent director of public prosecutions. 

But the failure of prosecutors to secure convictions in the Frank Smith and Shane Gibson cases dealt a heavy political blow to the Free National Movement, and there is a widely held view that any failure in the Dorsett case would create even more political damage, particularly with an election nearing.

We broached the sensitive subject with the DPP.

“The reality is this, you know, and I think some people forget this … the ultimate party to control and, as the word suggests, preside over the process is the trial judge,” Gaskin said. 

It is our view, and no doubt the view of many other observers, that the time has long passed to give Kenred Dorsett his day in court.

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