By Kenneth Gale
Belize prosecutes defendants under a law and under procedures that are manifestly unjust.
Such unjust prosecutions can result in the convictions of the innocent and long periods of punitive imprisonment while an innocent defendant awaits trial. Such inappropriate procedures have resulted in low conviction rates and the murder of witnesses. .
The manslaughter conviction of Vincent Tillett, which was recently confirmed by the Court of Appeal, demonstrates how inappropriate legislation can result in depriving a defendant of a fair trial.
Vincent Tillett’s conviction was the result of the introduction into evidence of the contents of the written statements of two witnesses who refused to testify in court.
The contents of the statements were introduced pursuant to the provision of a 2012 Amendment to the Evidence Act. The amendment provides for an unjust proceeding that denies a defendant a fair trial.
A defendant’s right to a fair trial includes the right to confront and cross examine any witness who testifies against him. Cross examination is the search for the truth and the means of presenting the truth in court.
One cannot cross examine an affidavit. Introduction of such an affidavit into evidence denies the defendant the right to seek the truth and the right to a fair trial.
There have been attempts to justify the use of affidavits based on the fact that many cases are lost as a result of witnesses refusing to testify. One cannot justify the creating of another wrong in an attempt to rectify an existing wrong.
This is particularly true when it is readily apparent that the problem could be more easily eliminated by proper and legal means.
The amendment to the Evidence Act was neither proper nor necessary because there was and is a proper way of proceeding without depriving the defendant of his right to confront and cross examine witnesses who testify against him.
Belize has an extremely low conviction rate for murder trials. Belize’s murder conviction rate of 7% is the result of both witnesses’ refusing to testify and the killing off of witnesses.
Such murders and low conviction rates do not exist where courts have adopted proper procedures. The proper procedures not only results in high conviction rates they also protect the lives of the witnesses and reduce court costs.
These procedures are both simple and cost-effective. All that is necessary is that a court reporter be used to take down the witness’s testimony in the Magistrate’s court of preliminary hearing.
The defendant at that time will have the opportunity to confront and cross- examine the witness. Courts that proceed with a court reporter taking down the testimony, have conviction rates in the high eighties and in the ninety percent as compared to Belize’s 7%. Such courts do not have witnesses that are murdered, and seldom have a witness who refuses to testify.
If a witness has died, left the county or refuses to testify, the transcript of his testimony taken at the preliminary hearing can properly be read into evidence, and since the defendant has been given his right to confront and cross examine the witness, nothing is therefore gained by killing the witness. His or her testimony in the preliminary transcript will already be before the court.
There are other valuable uses of the preliminary hearing transcript. People’s memory fail. A Witness’ memory can be refreshed by use of the preliminary hearings transcript. Likewise, if the witness changes his testimony from that contained in the preliminary transcript, he can be impeached by his earlier testimony in the transcript.
The preliminary transcript has even greater value. It can be used to prevent an extraordinary punitive period of incarceration while awaiting trial. It is not unusual in Belize for a defendant to be detained for as long as 5 years in prison before he is granted a trial.
Frequently, after such a long incarceration, when the matter comes to trial it is shown that the evidence necessary to convict the defendant does not exist. But the defendant has been wrongfully committed to prison, often for many year.
When a defendant is arraigned in the Supreme Court, based on the content of the preliminary transcript, the defendant can make a motion to dismiss due to the lack of evidence.
If the transcript doesn’t contain sufficient evidence, the case is then dismissed. The defendant will not have to wait in prison for years to obtain the dismissal.
Incarceration during long periods, waiting for trial is considered punitive. In June of 2012 the Honorable Justice Jacob Wit of the Caribbean Court of Justice commented on the situation stating:
“Recently in Belize we saw a case where the accused person had been on remand for five years. He was acquitted”.
He further stated: “Where I come from, Curacao, which is also part of the Caribbean, any criminal case where the accused is in custody will have to be tried within 3 months after the arrest”.
In similar respect the State of California has provisions where the defendant is to be tried within 90 days after arraignment in the Superior Court.
Defendants have a right to a speedy trial.
Those who deny that right to defendants lack respect for the justice system. .
In addition the requirement for a court reporter in any court conducting a preliminary hearing is a money-saver and provides a better record of the proceedings.
Instead of writing down the testimony laboriously by hand, the Magistrate can devote all of his or her time to the testimony, and the court can accomplish twice the work that would have been accomplished without a court reporter.
It is imperative that the laws be changed to allow the defendant his right to a fair and speedy trial and witnesses are no longer murdered.
If this is done the conviction rate for murders will increase more than tenfold; into the high eighty or ninety percent, the cost of the proceedings will be less and the high conviction rate will result in the reduction of murders as murder will no longer be a crime that is seldom punished.
Belize has competent police officers and prosecutors to enforce the law. All that is needed to reduce crime and increase convictions are proper procedures that include the use of a court reporter at the time of the preliminary hearing.
*Judge Kenneth Gale is a retired judge of the Los Angeles, California Court Circuit.