The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

KOFHE Goodman was unanimously convicted by a Supreme Court jury yesterday in his retrial for the killing of 11-year-old Marco Archer nearly six years ago.

After two hours of deliberation, the 12-member panel that heard testimony concerning the September, 2011, killing returned to the courtroom of Justice Carolita Bethel with a guilty verdict on the murder charge.

Ten police officers were gathered as a security precaution. Goodman did not visibly or vocally react to the forewoman’s announcement.

When Justice Bethel asked prosecutor Cordell Frazier if it was the Crown’s intention to seek the highest penalty on the law book, Ms Frazier indicated that they were seeking the discretionary death penalty and subsequently requested that a psychiatric and probation report be prepared for the court’s consideration.

Goodman, however, questioned the necessity of this given that he “been through this before”. “Can the court bypass this? I don’t want the long delay. You know I appealing both conviction and sentence,” he added.

Justice Bethel thanked him for stating his intention and scheduled a status and sentencing hearing for July 27, by which time the Department of Rehabilitative Welfare Services should be in a position to update her on Goodman’s status.

Goodman was remanded to the Department of Correctional Services in the interim.

It was alleged that between September 23 and 28, 2011, Goodman, of Yorkshire Drive, caused the death of Archer, who disappeared from Brougham Street on September 23 and was found dead days later.

Archer, a sixth-grade student of Columbus Primary, was reported missing by his family after failing to return home from a neighbourhood store where he went to purchase candy. His family begged for help in ensuring that he was returned home safely. However, on September 28, police discovered Archer’s body in bushes behind an apartment complex on Yorkshire Drive.

Goodman was initially convicted of Archer’s killing on August 2, 2013 and sentenced to death by hanging by Justice Bernard Turner on October 29, 2013.

However, the Court of Appeal overturned the conviction and sentence, ordering a retrial for as soon as possible because of the “lurking doubt about the fairness of the trial” brought on by adverse pre-trial publicity, misconduct of Goodman’s then defence lawyer Geoffrey Farquharson and the former jury’s irregularity.

During yesterday summation of a week of evidence heard in last week’s retrial, the judge told the 12-member panel that they “now had the advantage of hearing all of the evidence of the witnesses for the prosecution”.

“You’ve also had the benefit of having counsel for the prosecution address you both at the opening and closing of their case. You’ve also heard counsel for the defendant at the closing of his case,” Justice Bethel added.

The judge said she would direct them on the law but noted that “the case depends not only on the law but on the evidence from the facts which you are the judge of”.

“You may accept part of what a witness says, reject a part of it, or accept and/or reject it entirely. You alone are the judges of the facts. It is up to you to draw what conclusions you can make, or inferences from the evidence. You can only have regard to the facts and the evidence adduced in this trial,” the judge stressed.

Justice Bethel also cautioned the jury that her summation of the evidence, closing addresses from Crown and defence counsel were not the evidence.

“Pay no attention to anything you have seen or heard outside of this courtroom. You apply the facts with the directions on the law that I will give you to make your finding. You are not to be swayed by the high levels of crimes and murder in society, or sympathy for the victim to affect your assessment of the evidence,” she further warned.

In noting Goodman’s right to presumption of innocence, the judge told the jury that it was the prosecution who bore the burden of proving the allegation levied against the accused.

“You must be without reasonable doubt for you to convict. If you are left with reasonable doubt after considering the totality of the evidence, then the prosecution has not discharged its burden. However, on the contrary, if you are convinced of his guilt based on the totality of the evidence, then you have a sworn duty to return a true verdict in that regard.”

Justice Bethel noted that the issue of provocation does not arise “as the prosecution alleges the killing was unprovoked.”

The judge said there were a number of elements to the murder charge for the Crown to establish in its case.

“They must prove Marco Archer is dead. Tryphemia Meadows, the mother of Marco Archer, said he left home to go across the street to buy candy and left his laptop to charge but Marco never returned. He was 11 years old. On September 28, the remains of a badly decomposed child was found and an autopsy was performed in which a piece of liver from that body along with a whole blood sample were sent abroad to forensic analysis.

“Shelly Johnson, of Fairfax Laboratory, said the accepted level of maternity is 100 per cent. The whole blood was found to be the mother of the tissue taken from the unrecognised person and the probability of her being the mother was 99.943 per cent. It is the Crown’s case that the body of the child found in bushes behind an apartment complex on Yorkshire Street is Marco Archer. That is a matter for you to decide.”

The judge added: “The prosecution must prove that death occurred within a year and a day. And if you accept the evidence that the body was that of Marco Archer, and that he was last seen alive on September 23 (2011), then this element is a non-issue. But again, that is a matter for you to decide.

“The prosecution must prove the bodily harm occurred. The evidence of pathologist Dr Caryn Sands is that the cause of death was the result of blunt force trauma to the head, contusion on the right side of the face, neck and a fracture to the base of the skull,” the judge said concerning the third element of the evidence.

Asphyxia

The judge also said that the pathologist noted that a plastic bag was wrapped around the head of the body and therefore asphyxia could not be ruled out as a contributor to the cause of death.

The judge said that the law does allow harm to be inflicted in certain instances “but there’s no suggestion in this case that the accused was acting in self-defence”.

“However because the prosecution has the burden to prove this, they must make you feel sure,” the judge added.

The judge said that other elements of the murder charge are that the Crown “must prove the unlawful harm was caused by the actions of the accused and that they must prove that the action was intentional”.

“The prosecution’s case is based on circumstantial evidence that they say when considered on a whole leaves the inescapable conclusion that Goodman committed the offence. Circumstantial evidence can be powerful but it needs to be examined with care,” the judge noted.

The judge recalled that clothing - school pants, a Bob Marley T-shirt, boxers and slippers - that were identified by Archer’s mother and were found in the garbage at the defendant’s residence is an instance of circumstantial evidence. The items were tested and had Goodman’s DNA; however, the analyst admitted that DNA could be transferred.

The judge also recalled that the body was discovered at the back of the defendant’s property “in swampy bushes following a trail directly from his backyard”. She also said the Crown believes the similarity between the bag found on the body’s head and the bag in which the clothing items were found “is not a mere coincidence”.

The judge also recalled that the floral sheet wrapped around the remains of the child appeared to be similar to that which was found in Goodman’s apartment unit. However, the judge said that the jury only had the photo of the former because the item was discarded by a cleaner at the Central Detective Unit when it was being aired on a line.

“The Crown alleges that buggery was the motive for an adult male taking a child, who from his mother’s evidence had taken up boxing lessons after school, and they say he was punished for fighting back.”

Goodman was represented by Wayne Munroe, QC, Tommel Roker, Alex Morley and Ryszard Humes. Garvin Gaskin, director of public prosecutions, represented the Crown with the assistance of Ms Frazier and Rosalee Ferguson.