A legal bid for the freedom of four convicted murderers was unsuccessful, as Supreme Court Justice Jon Isaacs on Friday denied habeas corpus applications by the convicted men’s lawyer.
The lawyer, Dorsey McPhee, sought to take advantage of the new legal terrain in The Bahamas following the shake-up caused by the Privy Council ruling in March striking down the mandatory death sentence, and the subsequent decision by The Bahamas judiciary to re-sentence death row inmates.
Mr. McPheeﾒs basic position was that the incarceration of his clients was illegal because the Supreme Court judges who originally sentenced Brian Schroeter, Jeronimo Bowleg, Omar Hall and David Smith are no longer on the bench.
“If the presiding judges were still sitting I would have no case,” Mr. McPhee told the court. “This is a once-in-a-lifetime opportunity.”
Justice Isaacs did not seem to agree that Mr. McPhee had a case at all.
After hearing Mr. McPheeﾒs submission, the judge said, “Your basic position that (your clients) are being held under an illegal sentence is not so.”
The lawyer insisted that his clients did not fall into category 3 (C) of Chief Justice Sir Burton Hallﾒs Practice Note on sentencing of persons convicted of murder, which provides that “persons whose appeals have been dismissed and whose sentences have not been commuted” are to be re-sentenced.
Instead, he held that Section 9 of Sir Burtonﾒs note was more applicable to his clients.
“The Court does not now attempt to articulate any general policy with respect to persons who do not fall within the categories identified at (section) three as it considers it impossible to anticipate what reliefs might be sought from the Court from persons who believe they have a right to make a claim,” Section 9 reads.
“Any applications made, including epistolary applications, will be determined on their own merits as and when they arise.”
Mr. McPhee held that his clientsﾒ situation was unique.
“It is my position that these men are not under a sentence of the court. They have been convicted, but their sentences have been quashed,” he argued.
Schroeter, Bowleg and Hall were convicted together in 1996 of the murder of Diesul Almanor, and sentenced by Justice Ricardo Marques to death. They have been on death row for 10 years.
Justice Joseph Alfred sentenced Smith to death in July 1996 for the murder of 79-year-old Mamie Galloway. Smith has been on death row for nine years.
Mr. McPhee held that the Privy Council ruling quashing the mandatory death sentence for a murder conviction in Bowe and Davis meant that his clientsﾒ death sentences had also been quashed.
Citing Archibold and Halsbury, Mr. McPhee insisted that Court rules say a sentence must be read orally in open court, and that re-sentencing be done by the same judge who pronounced the original sentence.
Since Justices Marques and Alfred have since retired, Mr. McPhee argued, the court was no longer competent to sentence his clients, and therefore their incarceration was illegal and they ought to be freed.
Justice Isaacs interrupted at one point to ask if Mr. McPhee was familiar with the case of Reyes versus The Queen, a famous death penalty case in Belize.
In Reyes, the Privy Council ruled that two death sentences against Reyes be quashed because of constitutional issues that arose over the interpretation of the class of murder Reyes committed.
The Privy Council held that the case should be remitted to “a judge of the Supreme Court of Belize to pass appropriate sentence on the defendant after hearing or receiving of any evidence and submissions on his behalf.”
The point of the citation was that Reyes was re-sentenced not by the same judge who pronounced his original sentence, but by “a judge of the Supreme Court of Belize” ﾖ in fact, it was the Chief Justice that re-sentenced him.
After hearing responding submissions from Director of Public Prosecutions Bernard Turner, Justice Isaacs delivered his ruling.
“There is no basis for granting the relief that you seek,” he told Mr. McPhee, denying the application for each of the four.
The judge said he had heard or seen nothing that demonstrated that the death sentence on each of Mr. McPheeﾒs clients was unlawful.
However, under an earlier Privy Council ruling which said it would be cruel and inhuman to execute anyone who has been under the sentence of death for five years or more, it appears unlikely that the men would be hanged.
By: Quincy Parker, The Bahama Journal
