By LAMECH JOHNSON
Tribune Staff Reporter
A JUDGE ruled yesterday that a man accused of killing his common-law wife will stand trial notwithstanding that a 10-year delay in the case breached his constitutional right to a trial within a reasonable time.
Senior Justice Stephen Isaacs heard a constitutional motion brought by 50-year-old Leo Roderick Johnson last week who is of the view that he should not have to stand trial at this time concerning the August 19, 2006 murder of Ericka Fowler.
Johnson sought a formal declaration from the court that Article 20 (1) of the Constitution had been infringed and asked that the proceedings be stayed permanently.
The grounds for the application were that the present case is an abuse of the process of the court; that the delay was presumptively prejudicial; that no reasonable explanation was given for the delay and that the applicant had been severely prejudiced in his defence because of the delay.
However, in delivering his ruling on the motion yesterday, Senior Justice Isaacs was of the view that “only one reason has been advanced by the applicant to secure a permanent stay, that is presumptive prejudice due to a long delay.”
“He has suggested that witnesses exist, one in particular, that he has lost touch with, I note (again) that no alibi witness nor any other witness for that matter, has ever been named. No credible evidence has been offered to demonstrate that the defence will be impaired,” the judge added.
Johnson is accused of killing 33-year-old Ms Fowler, a mother of five, who was fatally stabbed in the heart by a man with whom she had been in an on/off relationship. Ms Fowler, who was employed at The Tribune as assistant librarian and archivist, was killed in front of her home on Comet Terrace in the Golden Gates area.
At last week’s hearing of Johnson’s constitutional motion, defence lawyer Crystal Rolle relied on the Court of Appeal decision of Cancino Lightbourne vs the Attorney General (2010), which outlines a number of factors for consideration of future applications for stay of a trial.
Basil Cumberbatch, in response for the Crown, relied on the Court of Appeal decision of Stephen Ronald Stubbs 2013 where the appellate court ruled that there had been a breach of Stubbs’ rights after a 10-year delay of trial but said the trial should still proceed.
In his written ruling yesterday, Senior Justice Isaacs noted that the authority case of Lightbourne was not helpful to Johnson due to difference in circumstances of the two cases.
“Lightbourne was discharged by a magistrate presumably because there was not sufficient evidence to commit him to stand trial at the Supreme Court,” the judge said.
“He was then re-arrested and charged a second time on the same evidence. Lightbourne’s (armed robbery) case was stayed in all of the circumstances that obtained. In the instance case, there is eye witness evidence of five children born to the applicant and the deceased, and other family members, that saw the applicant drag the deceased from her home, stab her and cut her throat. The deceased died in the street of her injuries.”
The judge then noted the reasons provided by the Crown for the delay, which were “the prevailing conditions of the limited number of trial courts in 2007, the demand for legal services and the supply of legal services in The Bahamas as contributing to the delay.”
“I do not accept that submission given the seven years of inactivity by the Crown. Nevertheless, the burden remains on the defendant to show that a fair trial cannot be had,” the judge said.
“In all of the circumstances and the prevailing law, the delay in this matter has not been shown to have prejudiced the applicant.
“In the result, the applicant is entitled to a declaration that the delay in bringing him to trial within a reasonable time has breached his right guaranteed by Article 20(1) of the Constitution.
“I find, however, that on a balance of probabilities, a fair trial can be had despite the delay and breach of the applicant’s constitutional right to a trial within a reasonable time. The application for a stay is therefore dismissed,” Senior Justice Isaacs ruled.
The matter is to resume on Monday, November 7, for the start of trial.