Simeon Sampson represented PC Palacio, while Anthony Sylvester represented Private Gutierrez.
The Director of Public Prosecutions, Kirk Anderson, argued that the use of force against the victim was not justifiable. He said that Palacio, who was on duty at the time of the incident, wasn?t harmed and did not have to shoot Mariano.
Commenting on the ruling of the court, attorney Anthony Sylvester said, ?At the time of the incident, the officers on duty were actively pursuing a command that was given, although there were issues as to whether that command was withdrawn.?
Sylvester contends that his client was not given a fair trial. He said that this issue should have been brought to the attention of the jurors during trial, so that they could have considered that information in reaching their verdict. He also said that the trial judge failed to point out to the jurors a section of the Criminal Code, which states that there is a certain limit as to what is termed justifiable use of force.
Sampson said, ?These are no ordinary people, these are [law enforcers]. One is a policeman and the other is a BDF. They are allowed to walk the streets and arrest. But the question that should be asked is whether they exceeded the limit of force granted??
The court agreed to a retrial, noting that the issue at hand was not whether the accused men acted in self-defense, but whether they used excessive force in carrying out their duties.
On May 16, 2005, Gutierrez was found guilty of manslaughter and Palacio, of abetment to commit manslaughter. They were both sentenced to 10 years imprisonment on June 1, 2005, but later appealed.
They were convicted in the death of Aaron ?Mattam? Mariano, which occurred 5:00 a.m. on September 11, a stone?s throw from the doorstep of Eastern Division Police Station on Queen Street. Mariano was shot in the back of his head with an M-16 rifle.
Linden Flowers (a witness who was a policeman at the time but now a magistrate) told the court that on the night of the incident, he had gotten a call sometime after 10:00 p.m., asking him for assistance in dispersing some partygoers. He said that Mariano had approached him, showing him an abrasion on his hand, which he said was due to an altercation with an officer inside the club.
Flowers said that sometime around 5:50 that same morning, he saw Mariano coming up Queen Street, heading towards the Swing Bridge, and he ordered Palacio to bring Mariano in for questioning. Mariano ran and Palacio was unable to catch him, Flowers said.
Flowers added that Gutierrez joined in the chase, without being ordered to do so.
He told the court that he shouted to the men when they were about 25 feet away from Mariano, telling them to leave Mariano alone, because he knew him well and would be able to question him later.
Flowers said that after he returned inside, he heard a single gunshot. He immediately ran back outside, but saw Gutierrez and Palacio standing on the street, staring into the compound of Beto?s Shopping Center, where Mariano lay fatally wounded.