Features — 28 March 2014 — by Audrey Matura-Shepherd

It is said that ignorance of the law is no defense and thus the assumption of our Common Law legal system is that every citizen knows the laws and as such cannot plea ignorance of it. Along with this assumption is that our people are equally “educated” and for me education is beyond being book smart – it’s about being aware, knowledgeable and competent to engage in sober well informed discussions. The whole premise of a democracy is likewise under the understanding that citizens of a democratic society are “educated” or enlightened. So when we keep our people ignorant, uninformed and “uneducated” we cannot expect that the socio-political system we operate under will ever be as functioning as it should be.

I read and heard some very damning comments about our judicial system and while some are so true, lots are based on ignorance of our system and our people not realizing that they too have a role. Now, let me say up front that I am in no way saying all is well with our system and that it should remain as it is, but we first appreciate it before we constructively dialogue about what to change.

Thrown in the mix is the fact that we now live in a new era of technology, news media and social media…. Information goes out in split seconds and the masses are moved to react in nano-seconds. Yet some our laws have not adapted to meet the changing times.

Antiquated criminal laws

Late last year when I was asked to participate in the discussion about the amendments to the Crime Control Bill, I realized I was there in part to be window dressing because the parameters of the changes to the laws were already set, and while I agreed with some of them, there were those amendments that I lobbied for but could not get changed. One such law I believe desperately needs changing is the one dealing with “cyber” sex. “Cyber” sex refers to where the internet and like technology are used to attempt to or to commit some sex offence. This was a major concern to me because I had become aware of instances where young women were being solicited and seduced by older men via the internet. I had become aware of how Facebook was being used in Belize to lure these little girls into sexual activity.

This law is important because everyday hundreds of our Belizean children are being courted and cajoled into cyber-relationships with predators. When I heard the recent news reports of Wendel Thompson, a Miami-based Social Studies teacher who was on his way to Belize to meet two minors he had “courted” on Facebook, I once again revived my campaign to call for amendments to our laws to address this crime. It is a crime and an abuse of the internet and social media or even the visual and electronic technology to use these to facilitate a sexual crime.

I have evidence of at least one pharmacist in Benque Viejo del Carmen who used the internet to seduce a teen girl, told her how to get out of her house by telling her mom she was going to do school work at the library and getting her into a backroom of his pharmacy to have sex with her. He was arrested and charged with aggravated assault for trying to have sex with her, but was given just a fine, contrary to the laws, because he should have been incarcerated after he pled guilty. This matter is under appeal, but my view is that we should have already made it illegal to use cyber-space to facilitate this crime. I think where the law should be is that where cyber-space is used, this should be an aggravating factor that increases the penalty. Of course I believe that the use of the internet or electronic media technology in and of itself to exploit a person sexually should be a crime.

I believe that had these laws been in place when Dr. Lee took videos of his clients in the nude or during massages, the police would not have been at a loss to determine what charges to bring against him. Remember, clients consented to be touched for massage, but the illegal act is the recording of them as they got in the room and undressed and then being subjected to video while being massaged. The minute these videos were discovered and then circulated, then another two types of crime would have been created… of course, if we already had had the vision to legislate against these acts.

Telephone texting and videoing are being used to exploit and sexually abuse children and women, yet the office of the Special Envoy for Women and Children did not see the wisdom in my suggestion to include in the recent Criminal Code Amendment provisions to address the crimes I outlined above.

Murder….

One crime that is one of the oldest crimes commenced with the Book of Genesis when Cain killed his brother Abel; it is one of the most prevalent and emotionally charged crimes. Murder is so final a crime because it brings such finality to the life of a person. Anytime someone is killed it raises so many emotions and is deemed a crime not just against the individual, but also against the state. Yet, if I may say so, the state as the offended entity has done a very poor job at bringing the culprits to punishment. This failure, to me, amounts to a subtle crime against society and a further injustice against the memory of the deceased and their family.

But there are key things that many need to understand about murder… while it is a crime, the burden of proof to prove murder was committed is on the state, who prosecutes the accused and who relies on the Police Department to investigate and put the proof together to be presented in court by the prosecutor that comes out of the office of the Director of Public Prosecution.

However, for there to be a proper conviction for murder it is imperative that members of the public who can assist with the prosecution of the case, do so. They may be eyewitnesses or could testify to information that can secure a conviction. Too often in Belize this category of witnesses has refused to do their part, causing many cases to fall apart. Many reasons for this conduct have been given, but the most debated is the outright refusal of witnesses to testify. There is the usual outcry that we do not have a witness protection program. If this is true then we will never be able to increase our murder convictions and create public confidence in the judicial system.

This brings me to the role of the judicial officers and legal personnel. Sadly, the people in this nation don’t seem to know that NO ONE can stand trial for murder without an attorney representing them; that is why persons who cannot afford to pay for an attorney are provided one by the state. This is mandatory… and often accused murderers are not able to afford an attorney, so any attorney whose name is on the roll can be handed a case through the Supreme Court Registry and technically they should not refuse it. Sadly, many attorneys get away with refusing, for different reasons, the most common being that they do not practice in that area of the law. This explains why it’s almost the same criminal defence attorneys whose name are always heard dealing with this type of case.

Attorneys must represent their client according to what the client says, even if it is not what they believe or would want to put as a defence. However, attorneys are not to get off their client at all cost and create a defence or cannot put forward a not-guilty defence if the client admits to committing the crime. In such instance the strategy is to use the technicalities to challenge the charge.

Confessions…why they fail

In recent years the murder cases in Belize have become more gruesome. There has been mayhem in our streets as our young men are gunned down and in our inner circles as now murder victims are killed by people they trust or see as non-menacing. Just to name a few, the mother killing her children, the four men confessing to killing Raylene Dyer under instructions and the “boyfriend” confessing to killing Kayla Burgess and masking it as a kidnapping, have gripped the attention of the nation.

In Belize, it seems that the police’s main method of crime solving is to record a confession and the “investigation” stops there. They then fail to gather other physical and biological evidence to support a conviction should the confession fail. This is important because after sitting in prison for three to five years the prisoner has had sufficient time to re-think his confession and has learnt that, unlike what police may have presented to them to induce the confession, there is absolutely no evidence to connect them to the murder. And I do believe that more often than not confessions are given under duress or are given under the mis-conceived belief that they will be assisted to get out of prison. And I have come to see instances where the person is absolutely not involved in the crime, yet confesses.

To me we have been lagging behind when we do not do some basic things that allow a confession to be validly given. What would help? These are my suggestions:

1. Do not downplay the right of the prisoner to speak with an attorney of their choice or a relative – if this is done, how could a prisoner explain that they were beaten with their attorney or relative present or after getting advice from their attorney?

2. Keep the station diary updated with the activities of the prisoner from the time he/she is brought to the police station… even visitors had, for how long, and who it was…also when the prisoner is fed or allowed to sleep. This is important because it is imperative that at the time the prisoner confessed it can be shown that his will power was not worn down and rather of his free will he wanted to relieve the guilt of his mind.

3. The police need to start recording the interviewing of the prisoner so It can be shown that they were not beaten or promised anything in return for the confession. And the confession itself needs to be recorded… after all if these prisoners are really confessing, it does not hurt to show that a valid confession was given.

4. DO NOT rely only on a confession… use the contents of the confession to point out what other evidence could be gathered to have the case stand on its own, without the confession.

Media mayhem

Sadly, cases are being tried in the media and long before the trial the society is sure the accused is guilty, yet they do not seem to understand that the prosecution must prove the case beyond a reasonable doubt. The public and the media do not understand the rules of criminal trial and what is admissible evidence and what is hearsay and speculation, which will not be part of the evidence considered by the court. And an accused’s character cannot be brought into the court, unless the accused brings his “good” character into the trial and only then can the prosecution prove otherwise, if they have evidence of bad character, which is not what we perceive, but what is factual.

The social media has become the place where the society vents about the cases and hold their own trial, but a lot is said is out of ignorance and sadly, the rage is so hot that there seems to be no room for enlightened discussions based on the law and legal process. I personally believe that if the average man would understand how the legal system works and the rules of how cases are presented, they would be able to soberly lobby for meaningful changes or even know how to help the prosecution, rather than post prejudicial comments that damage the investigation and case.

God bless Belize!

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