Attorney Stephen Daniels, who represents Dale Nibbs, Gareth McDowall, Carlos Sutherland, and Dexter Chance, said his clients could not receive a fair trial before Senior Magistrate Valerie Stephens because she had ordered the alleged evidence against them — 61.21 kilograms of cocaine — destroyed.
Mr. Daniels alleged that the destruction occurred in violation of a High Court judge’s June 2008 order to stay the proceedings pending another judge’s review of the territory’s Drug (Prevention of Misuse) Act. A section of the act was later ruled to be unconstitutional.
The defendants previously pleaded not guilty to being concerned with the importation of cocaine, unlawful possession of cocaine and being concerned in the supply of a controlled drug to another.
Those charges stemmed from a Jan. 17, 2008 police raid of the Liseron, a catamaran docked in the Hodges Creek Marina. Officers allegedly found the nearly $1 million worth of cocaine aboard in a sealed compartment. Coy Penn, Mario Pemberton, Asif Glasgow, and Chesley Balkran were also arrested in relation to the same incident and jointly charged with Mr. Daniels’ clients.
Mr. Balkran pleaded guilty to the charges and was sentenced to four years in prison.
The argument
In asking Ms. Stephens to recuse herself, Mr. Daniels said he would object at trial to pictures being used as evidence instead of the drugs themselves. He argued that using pictures was unfair to his clients because neither he nor they saw the evidence against them and because Ms. Stephens would be the judge presiding over their trial.
“We intend to object to the tendering of the pictures, and who would we be objecting to but the very adjudicator who ordered the drugs destroyed in the face of an order that the proceedings be stayed,” he said.
The defence lawyer added he believes “there’s a real danger, a real possibility, that this court could be biased against these defendants.”
Mr. Daniels had applied to High Court Justice Indra Hariprashad-Charles on Friday to have Ms. Stephens recused from the case, but was told by the judge that the application was “premature,” the attorney said.
In a separate motion in Magistrates’ Court Monday, Cheryl Rosan, who represents Mr. Penn, also asked Ms. Stephens to recuse herself, alleging that the magistrate would be biased against her at trial because she views the attorney as “not capable of handling the case.”
Ms. Rosan based those allegations on the “contents and tone” of a June 10 letter Ms. Stephens sent to her firm responding to Ms. Rosan’s request that a court reporter be present at a June 2008 court proceeding. Ms. Stephen’s letter called the request “unorthodox,” referred to Ms. Rosan as “not having experience in the matter,” and advised her to seek the advice of a more senior attorney.
“I found your letter rather insulting, Your Worship,” she told Ms. Stephens.
Myron Walwyn and Anthea Smith, attorneys for Messrs. Pemberton and Glasgow, remained silent during Monday’s proceeding and did not join in the motion to recuse.
The Crown’s objection
After the defence attorneys finished speaking, Senior Crown Counsel Tiffany Scatliffe stood to object to the motion and defended the magistrate’s actions.
Ms. Scatliffe argued that Ms. Stephens’ recusal from the case was not necessary and said the magistrate would consider any motion for the pictures of the drugs to be used as evidence “based on point of law.”
The Crown counsel added that the magistrate ordered the drugs to be destroyed for “security reasons,” a procedure that had been followed before in other cases.
The cocaine involved in the case was destroyed at the Pockwood Pond incinerator on March 28, 2009 as part of $11 million worth of seized cannabis, cocaine and other drugs.
The Crown counsel said Mr. Daniels had been invited to the proceedings and had replied via letter that he would not attend but to “feel free to proceed without me.”
Ms. Scatliffe also claimed that Ms. Stephens had received permission to destroy the drugs in a letter from Justice Peter Foster, who was acting as chief justice of the Eastern Caribbean Supreme Court at the time.
The Crown counsel added, though, that the letter had been “inadvertently lost.”
Referring to Ms. Rosan’s motion, Ms. Scatliffe called the attorney’s letter requesting a court reporter “vexatious” and “frivolous.”
“The letter questions the magistrate’s ability to take effective notes,” Ms. Scatliffe said.
The Crown counsel then spoke directly to Mr. Daniels’ clients, alleging that his representation of four defendants may be a “conflict of interest.”
“We are obliged to make it aware to the accuseds’ attention that they have a right to separate counsel,” she said.
The defence lawyer replied, “The court has no jurisdiction to determine whether or not there is conflict.”
Mr. Daniels added that although he represented all four clients in Monday’s appearance, two other lawyers from overseas would be flying in to represent the men at trial.
Ms. Stephens said she would consider the attorneys’ arguments and legal submissions, and would make the decision to recuse herself or not on Nov. 4.