The country's high crime rate has outpaced the criminal justice system. In a sign of the system's disarray, Attorney General Allyson Maynard-Gibson disclosed in the Senate in June that she had no idea how many people charged with murder since 2002 were on bail. The attorney general believed the number exceeded 400, but could not say with certainty because of the "woefully inadequate" state of record keeping in her office.
Judges undoubtedly freed many of those 400-plus persons on bail because an overwhelmed system could not try them within a reasonable time, as guaranteed by the constitution. They remain untried as the caseload burgeons. Maynard-Gibson told The Nassau Guardian she was still in the process of determining the extent of the backlog. According to a former prosecutor, many older cases cannot be tried.
The prosecutor said, "They can't find defendants, witnesses and exhibits for most of these cases." While many defendants wait years for trial in the Supreme Court, trials proceed in fits and starts in the lower courts and often take years to complete. A magistrate adjourned a drug case 47 times over 10 years before the defendant was convicted and sentenced this year. The case remains in the court system as the convict has a pending appeal.
The country recorded 612 murders from 2000 to 2009, according to police researcher Chaswell Hanna's book "Reducing Murders in The Bahamas". Consider: With murder trials lasting about two weeks, even if the five criminal Supreme Court judges took no vacation and focused just on murder cases they would only dispose of 120 cases during the 48-week criminal year.
Other violent crimes such as attempted murder, rape and armed robbery, bail hearings, constitutional motions, habeas corpus applications, case management conferences and retrials, all add to the courts' heavy workload. Despite this, at the re-launch of the Swift Justice Program, Maynard-Gibson made the unrealistic pledge that murders committed as of May 2012 would be tried within a year. The Supreme Court calendar is already in 2014.
Extensive delays could give the impression that crime goes unpunished as career criminals thumb their noses at the system and reoffend while on bail. In reality, the courts lack the resources to try every case. Last month, a man on bail after being charged with two murders was remanded to prison on an armed robbery charge. He is alleged to have committed his first murder in 2006. While on bail for that crime, he allegedly killed another man in 2009.
One judge said, "Even if we increase the courts to 10, we're not going to make an impact on the number of cases that need to be prosecuted. There's just too much crime. "The AG's Office needs to be more selective in the cases they prosecute. You can't try every case. If you try a case, where the evidence is tenuous and the person is acquitted, it gives the impression that crime pays. But if you try strong cases and persons are convicted, it shows that crime does not pay."
That's easier said than done. No one has had the wherewithal to tell victims or their families that they will not have their day in court. The Plea Bargaining Act, which came into force in 2008, was touted as a means to clear the backlog. However, defendants usually take their chances at trial instead of wading through red tape. In a recent case, a man accused of attempted murder wanted to plead down to causing grievous harm.
Prosecutors refused the offer and the man was acquitted at trial. Witness intimidation has become increasingly prevalent as criminals silence witnesses through threats or bullets. Cases collapse as frightened witnesses recant their statements to police. Overbooked defense lawyers routinely contribute to the system's chaos by failing to pass cases on to other attorneys. Instead, they send colleagues to court to have matters postponed.
Recently Justice of Appeal Christopher Blackman said that the practice was "frustrating the process of dealing with the backlog of cases we have in the system". Blackman said, "This gamesmanship must stop." Yet judges never penalize defense lawyers for seeking spurious adjournments or failing to appear for fear that the accused will claim they did not receive a fair trial. Prosecutors, however, are rarely afforded the same leeway.
A judge closed the prosecution's case in a murder trial because the witnesses were not present then directed the acquittal of the defendants due to lack of evidence. Successive administrations have sought to bring order to the system. The Guardian will take an in-depth look at the contributors to the failings in the system and how they are being addressed in a series of articles. In our next article, we will look at how witness intimidation is undermining the administration of justice.
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