By LAMECH JOHNSON
Tribune Staff Reporter
A JUDGE has reserved his decision on whether he will stay the prosecution of a man awaiting trial for murder since 2006.
Senior Justice Stephen Isaacs heard a constitutional motion yesterday brought by 50-year-old Leo Roderick Johnson who believes he should not have to stand trial at this stage concerning the August 19, 2006 slaying of Ericka Fowler.
On Monday, Basil Cumberbatch and Lukella Lindor noted that the prosecution was ready to proceed with trial but indicated that they had received Johnson’s submissions only the weekend before the hearing.
A 48-hour adjournment was given to the Crown to allow them sufficient time to respond.
In yesterday’s hearing, Johnson’s lawyer Crystal Rolle said the motion was grounded on Article 20 (1) of the Constitution of the Bahamas “which allows him the right to a fair trial within a reasonable time by an independent tribunal.”
“The facts are that an incident happened on August 19, 2006. The applicant turned himself into the authorities and on August 23, 2006 he was arraigned in Magistrate’s Court on a charge of murder. On July 27, 2007, he was formally arraigned in the Supreme Court before then Senior Justice Jon Isaacs,” she said.
“Since that time, there was a significant gap between then and June 2, 2014 when counsel appeared and a trial date was set for October 24, 2016 by then Senior Justice Jon Isaacs.”
“So there’s a seven year gap?” the judge asked.
Ms Rolle said yes, before noting that since that hearing, the Crown had presented five “notice of additional evidence” applications.
“It’s important that we look at the lapse of time and establish what is reasonable time,” Ms Rolle said.
Johnson is accused of intentionally and unlawfully causing the death of 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.
Johnson’s lawyer said they were relying on the Court of Appeal decision of Kencino Lightbourne vs the Attorney General (2010), which outlines a number of factors for consideration of future applications for stay of a trial.
The judgment, Ms Rolle noted, considered the length of the delay and the complexity of the case.
“A delay can be tolerated for a lesser crime but the charge here is for murder. This is not a fraud case or a conspiracy case. It cannot be denied that the lapse of time since the arraignment is presumptively prejudicial to the application,” Ms Rolle said.
The second factor in the referred to judgment concerns reasons for the delay.
“The Crown has offered no reasonable explanation for why the trial had not proceeded up until 2014 and even moving forward this year. Even their affidavit filed in response to this motion offered no explanation,” the lawyer said.
The third factor of the cited case was the asserted rights of the applicant.
“It is a fact that the applicant did not seek recourse provided for in the Constitution at that time. However, I do not believe there is a cap on his right to seek recourse from the court now,” Ms Rolle stressed.
“Is there any real prejudice? What if there’s a loss of a witness?” the judge asked.
“They’re relying on statements of witnesses near the area where the alleged incident occurred. It’s been 10 years since so it would be prejudicial for them to give an account for what transpired after all of this time. In the case of the applicant, he himself is unable to track down a particular witness for his own defence,” Ms Rolle said.
“What was the result of Kencino Lighbourne?” Senior Justice Isaacs asked.
“The Court of Appeal found that the appellant had not been afforded trial within a reasonable time,” Ms Rolle answered.
“What was the charge?” the judge further probed. Ms Rolle said the case concerned armed robbery.
“This is not a situation where the applicant (Johnson) has been hiding or attempting to evade justice,” his lawyer stressed.
In response, prosecutor Basil Cumberbatch first questioned why Johnson was seeking to call a witness for his defence when he, in 2007, failed to provide the same to the Office of the Attorney General as he said he would at the time.
“The Crown admits nothing transpired between 2007 and 2014. However, back in 2007, there were only so many criminal courts operating and so many prosecutors to prosecute,” the prosecutor said.
“But since then, the attorney general has instituted 10 sitting criminal courts. We had a backlog of cases which we’re trying to resolve. In 2014, my learned friend’s colleague agreed to the date for the trial. There was a breach, there was a delay but they accepted that delay at the time and did nothing.”
Mr Cumberbatch said there was precedence of similar instances, referring to 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.
“This is the same case as Stephen ‘Die’ Stubbs?” Senior Justice Isaacs asked.
“Yes m’lord,” the prosecutor said.
Mr Cumberbatch further argued that at no point within the past 10 years that Johnson said he “wanted his trial to proceed.”
“This matter does not fall within exception circumstances,” the prosecutor concluded.
Senior Justice Isaacs said he might need a week to deliver a decision given the magnitude of the application. However, he would inform respective counsel of which date he would give the decision.