DPP will not reopen Middleton case

The Director of Public Prosecutions, Vinette Graham-Allen, has concluded her review of the Rebecca Middleton case. Regrettably, she has decided that no new charges can be brought against Kirk Mundy and Justis Smith.

Bring on Cherie Booth.

Comments

[Full Fullish on 01.04.06 at 07:50]

I'd like to find out on what grounds. I would hope an explanation to the public would be forthcoming, and it had better be a good one as well. This has been a noose around this Island's neck for too long and it needs to be resolved one way or another. The legacy of our failed justice system. I for one am completely ashamed and disgusted.

[Full Fullish on 01.04.06 at 07:52]

Oh and as far as the DPP is concerned. I'd be interested in her track record since she's been on the Island. From what I keep hearing, she was a mistake to hold the office of DPP and has failed misreably at this post. I'd love to know her failed versus success rates. Also what qualified her for the job over here, she's Jamaican isn't she?

[curious on 01.04.06 at 12:21]

Does the 'republik' of Bermuda export bananas?

[me on 01.04.06 at 13:10]

With all due respect and regard for the Middleton family, I cannot even try to imagine their grief, it doesn't appear that this will come to pass. At this point the blame doesn't even lie at the feet of Kirk Mundy and Justis Smith for their acquittals. The blame lies in the justice department and the police force, all of whom made serious mistakes. I wonder if its even in the Middleton's best interests to continue to push this. I know that might sound harsh, but i mean it as sensitively as I can say it. No charges, no convictions etc will ever bring their daughter back. Maybe its time to move on, cherish the memories they have and in that regard close the chapter...

[His Excellency, Uncle Elvis II on 01.04.06 at 13:16]

I'm not sure closure will be possible while the men who raped, tortured, mutilated and murdered her are walking around, one free as a bird, completely unpunished and up to the same tricks, stabbing someone else a while back, if you recall, and the other getting off with an insanely light sentence.

Closing the chapter is probably not an option at this point.

[Rich on 01.04.06 at 15:33]

When I read Vinette Graham-Allen's legal reasoning, I was stunned. As I understood the double jeopardy rule, a person cannot be tried for the same offence. That different charges arising from the same facts could not be laid really seemed to be an incredibly liberal application of the double jeopardy rule.

Turns out unfortunately that she is correct. The relevant legal constraint is section 6, subsection 5 of the Bermuda Constitutional Order 1968:

"No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence *or for any other criminal offence of which he could have been convicted at the trial for that offence*, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal."

[RedOnion on 01.04.06 at 17:32]

Putting myself in the position of the Middleton family there is no way I could ever get closure without due convictions of the animals who took the life of their child.
It's very easy to say, "Uhhh, just let it go, move on", but ask yourself if you would if it was your child that was killed.

[Bundy & Coke on 01.04.06 at 20:25]

"Oh and as far as the DPP is concerned. I'd be interested in her track record since she's been on the Island. From what I keep hearing, she was a mistake to hold the office of DPP and has failed misreably at this post. I'd love to know her failed versus success rates. Also what qualified her for the job over here, she's Jamaican isn't she?"

Full Foolish, What does being Jamaican have to do with whether she is qualified for the job?

[Phil on 01.04.06 at 22:01]

A reader pointed out to me that double jeopardy was scrapped in England and Wales last year.

[His Excellency, Uncle Elvis II on 01.04.06 at 22:04]

Mr. & Coke,

I don't believe he was disparaging Jamaica, just stating that she wasn't Bermudian.

[Bermudian on 01.04.06 at 22:40]

“No new evidence has surfaced since his conviction, to justify the preferment of fresh charges.”

...that's in the paper today Limey

[Bermudian on 01.04.06 at 23:35]

I think Bundy & Coke was pointing out the fact that what does it matter her being Jamaican with regards to whether she's qualified or not?

I think we've already had the discussion of whether you can be qualified and not be Bermudian before.

[It Does Matter on 01.04.06 at 23:46]

England has not scrapped the double jeopardy rule. For an accused to be tried again for the same crime, at least three elements must be present:

(1) It must be a serious offence of the nature defined by the Criminal Justice Act 2003 (murder, rape, etc); and

(2) New and compelling evidence that could not have been obtained or ascertained at the time of the previous trial/investigation has come to light; and

(3) it is just in all the circumstances to bring the accused back to trial.

Might I add, even if Bermuda had this rule (which is a very bad rule for a number of reasons) it wouldn't have changed the outcome of Vinette's review. And rightly so.

[Bundy & Coke on 01.04.06 at 23:50]

Uncle Elvis, that's Miss & Coke... but Bundy to you :-)

I hadn't heard about the scrapping of double jeapoardy in the UK, but they did have an option in Scotland (and maybe still do) to record a verdict of 'not proven,' leaving the way open to retry if additional evidence emerged. This makes sense to me.

[Bill Cook on 02.04.06 at 07:54]

Conviction for what ?

The DNA was the new evidence that became available but could not be re introduced,as I recall?

There is very strong opposition to the double jeopardy law being changed here notably by Mrs LB Evans I understand.

It is entirely possible with the advances in DNA testing that several murder cases that remain unsolved could be re opened and retried.

I fully support the changes in the double jeopardy law and tend to think that only the guilty and their lawyers would oppose it for the obvious reasons that would be in my opinion to avoid the process of justice being carried out.

[Full Fullish on 02.04.06 at 09:44]

I Found a loophole!!!

Rich wrote: ""No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence *or for any other criminal offence of which he could have been convicted at the trial for that offence*, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal."

Since when do we have a competent court, do we consider the court that initially tried them, as with the whole legal system competent? By this very definition, we should be able to retry them ad nauseum.

[Full Fullish on 02.04.06 at 09:51]

Bundy & Coke - "Full Foolish, What does being Jamaican have to do with whether she is qualified for the job? "

Actually I personally don't care if she is from Mars, the point I was trying to make is that I've been hearing a lot of complaints about her, which led me to ask what qualified her for the job over here, over anyone else who is Bermudian. I asked if she was Jamaican cause I heard she was and wanted conformation that she wasn't a local. I suppose I should have worded my question to say "Is she a Bermudian?" but then some moron would have probably gotten their knickers in a twist and said "What does her being an ex-pat have to do with anything", or maybe you can stop being so frickin touchy and looking for an argument where none stands.

[It Does Matter on 02.04.06 at 11:49]

The DNA evidence wasn't "new evidence". You're putting a novel spin on this. What came back were the DNA results. They were off for testing during the trials. Which means, the prosecution could have simply waited (as they should have) before preferring an indictment. They didn't. The accused walked free. Case closed!

Now get over it.

[Bermudian on 02.04.06 at 12:32]

Full Fullish,

I think the point is that it doesn't matter where she is from in this situation.

You could have simply questioned what her qualifications may be. And on top of that you come back and insult B&C for asking a question.

I'm not saying you have something against Jamaicans, its just that your statement was phrased in a way that may come across as 'questionable' to some people.

[Bermudian on 02.04.06 at 12:39]

Bill,

"In the review, which looked at the record of all the evidence provided plus the legal judgements on the case, Ms Graham-Allen said Rebecca had been sexually assaulted and there was evidence that which cast doubt on Mundy's claim of consensual sex. But that should have been put before a jury as it had been available to the Crown prior to Mundy's committal to trial in November 1996."

They are basically saying that they should have charged him with sexual assault in the last trial when they knew it was a possibility that it had occurred. And since they didn't, they cannot bring it up now.

[ParadiseFound on 03.04.06 at 11:38]

Interesting to see that if you search for Bermuda Police on Google, one of the sponsored links on the right is from RebeccaMiddleton.org - probably not the best advertisement for the Police service.

http://www.google.com/search?q=bermuda+police

[SmokingGun on 03.04.06 at 20:13]

This decision really makes my stomach turn. I realize it is a difficult decision for the DPP to make based upon legal standings but I agree with Full Fullish and question whether there was a fair trial orchestrated by a competent court in the first place. On that basis surely the DPP could say that is how she read the law.

Maybe by refusing to re-open the case she opens the door to kick it further up the ladder where it might have an opportunity to be dealt with? One thing that keeps coming back to mind is how OJ Simpson was acquited for murder but found guilty in a civil case and was taken to the cleaners (or so he claims). Does British law allow for something similar?

Heck, if I were the DPP I'd just say go ahead and re-open the case. It wouldn't be the first time a mistake was made. Drag those scumbuckets back into jail and string out the timing so they spend at least some time being kept off the street.

As far as the family moving on and finding closure? If she were my child I'd be tormented till the day I died. I wouldn't trust anyone and I'd lose complete faith in our legal system and to say the least, I wouldn't have a problem telling the world what I really thought about Bermuda.

[Carol Shuman on 03.04.06 at 21:16]

I just found this topic--see the other blog for more comments and the website www.rebeccamidleton.org.

As usual, you guys are onto it, there are holes in the decision...Bill, I got a kick out of yours! The Privy Council appeared to agree with you and me re: the competence of the court!

Moreover, this is a process--we of course hoped the DPP would prosecute, but were we surprised? No, absolutely not. We promised we would await her decision, but that is now complete and the team now will take its next steps, which I can't discuss, as our lawyers have instructed.

However, the ruling was public information ==sort of==considering it was interpreted by the media and unlikely to be obtained by a request by the general public--which I find appalling in a modern civilization, no freedom of information...but where was everyone when they were meeting on it? Bermuda needs it, but nothing will happen without public involvement.

As I said, we wouldn't have put that story as the lead on page one...we expected it. We would have, though, put the story there saying that the DPP agreed--the evidence was there...all along. Remember, Peter Woolcock's finger pointing cartoon? Well, the fingers go in one direction now, the police had given the information to the crown showing that Becky was raped, etc., and yet they bought an absurd story of consensual sex which not only cast dispersion on Becky's character but mucked up the whole prosecution in both cases ...

If you remember all the stories in which some tried to blame Colin Coxall...the attack on Howard Cutts when he testified, the interruption of Vic Richmond when he was testifying at the SCC....and the adulation of Stanley Moore when Mottley testified...and the words of Bill Pearce, whose testimony can be supported by documents....Rick Meens got it all on tape....

Meanwhile, I think that there is much that is good in this. Ultimately, I believe that there will be justice for Becky. I'm sure the two men were advised by their lawyers that they need not worry. And I was fairly sure they were right--about the DPP prosecuting. I find her to be a very professional woman, researching well and having the best of intentions. She commented to me some weeks ago that it simply was a regrettable situation, and she does have empathy. But even though she has Constitutional responsibility for the decision, there is more to it than that. Not that I am questioning the independence of her thinking, I'm not. I simply say that things are different than they appear sometimes.

Meanwhile it is up to Bermuda now.

I have no doubt that it all will work out well, and it will be very clear that Becky was failed by very few people--two murderers and a few others, NEVER by Bermuda, which has supported action in her memory on every level, from the media to private individuals and even the government agencies, which have met with us and listened...Overall, there is such support for doing what is right in Bermuda, that one has to praise the country. The situation, I believe, is quite managable, and will come to a good end.

With help--please donate!

Best to all,

Carol

[SmokingGun on 04.04.06 at 13:09]

Bring on Cherie Booth....

For sure. There is the similar case going on in England with regard to the young boy, Damilola, who was killed at the age of ten. Although quite a bit of forensic evidence appears to prove two brothers were involved, they were acquitted. Now the police are looking into whether a re-trial based on manslaughter is possible.

I wonder if this could be done here for Becky's "known" murderers.

The article is at: http://news.bbc.co.uk/2/hi/uk_news/england/london/4874872.stm

[Linda on 07.04.06 at 14:22]

The problem is this ridiculous double jeopardy law. I stand to be corrected, but I thought John Barritt was looking into reversing it. What I really don't understand is that any criminal already convicted of a crime seems to have the whole justice system at his service. He can appeal until the cows come home if he has the resources. We've also seen where many who were wrongly convicted have since been released due to DNA and second trials. Shouldn't it also work the other way too, so that victims have a second chance at a conviction. Just knowing the scum that killed that girl are still breathing makes my blood boil. We need old fashioned cowboy justice.

[SmokingGun on 10.04.06 at 11:38]

"We've also seen where many who were wrongly convicted have since been released due to DNA and second trials. Shouldn't it also work the other way too, so that victims have a second chance at a conviction."

Linda - seems like it should be an obvious conclusion of yes. If we can put so much trust in DNA then surely what you suggest has to be the way forward. And when passing the law it should be made retro-active should the guilty party still be alive.

[Onion on 11.04.06 at 15:32]

The double-jeopardy rule is in place to prevent an abuse of process by the Crown. Under our legal system you are deemed innocent until proven guilty and that is why an accused is always afforded the opportunity to appeal. The DPP declined to proceed because she is right in that it will be very difficult to obtain a conviction.

I feel for the Middleton family and I cannot imagine the grief they have experienced. No price tag could ever be put on this grief, nor on the life of Rebecca. However, I would hate to see them fork out hundreds of thousands of dollars to pay Cherie Booth (yes she charges that much) and have such little chance of success. I hope they think long and hard about their decision to go forth.

[Carol Shuman on 19.12.06 at 03:09]

Quick note regarding 2007 and the upcoming situation regarding Rebecca's case. I join the Middletons in thanking all of you here (and Bermuda as a whole) for supporting Becky's family's effort. We've been fund raising with great success and that effort will be really important in 2007. All we wish is that evidence be retested using current technique, a normal standard for developed countries, and that whoever is accused of her murder face a JURY in Becky's case, in a competent court.

Meanwhile, John Barritt isn't seeking a change in double jeopardy right now. He is prepared to present a bill, though, that updates the absurd Criminal Code section that disallows appeals of judges' "no case to answer" rulings. As you may recall, the Privy Council suggested this law be revisited and discussed, as did the SCC; however, no AG has brought it up for discussion (LBE, Larry Mussendon, but the jury is still out regarding Mr. Perinchief's intentions, of course). Remember, Saul Froomkin, AG when the law went in place, told the SCC that it was not intended to be interpreted the way it ended up. Judges' rulings were routinely appealed until Becky's case ruling. It's a glitch that has the potential to allow people to "get away with murder." One lawyer (not a defense lawyer) suggested to me that some judges and defense attorneys are quite happy with it the way it is).

Last week I met with Shaundae Jones' mother, and can't discuss that case, but it is very, very interesting. I do hope that police act upon some very serious matters. One thing that disturbed me though was that Mrs. Jones told me she spoke with a leading politician, who I won't identify, and asked why there hadn't been a strong followup by the media, police, and politicians, knowing the case has been a disaster. According to Mrs. Jones, the person told her (twice) that it was because her son was black.

What a tragedy. First, it makes no sense. Why did the Cooper twins vicious murder make the front page and go to trial within a year of their murder? Same race. And there are many unsolved murders (See the RG Magazine for some 14) that include more than a few white victims that made very few headlines and failed to end well, despite confessions, according to SCC testimony. Mrs. Jones knows that Becky's case did not stay in the forefront because of her race or nationality, but because the family and Rick Meens haven't given up, much to the consternation of a few. Mrs. Jones, meanwhile, is doing the same thing for her lost son (who wrote a very sad school report about the injustice in Becky's case--never knowing that a few years later his death would have a similar outcome)Now that is outrageous and another reason to revisit the "no case to answer rulings.

A mission of Becky's foundation is to assist victims of violence, which we're doing, and Mrs. Jones, the Mallory's and others need the support of all of Bermuda. We're here now to offer the tools and support to help people who have nowhere to turn. I'm appalled that, if her report is true, a politician would give a trite "it's because he was black" and not help the poor mother. Makes me shake my head!

Meanwhile, another need for funds is to bring in drink testers and sprays that "mark" attackers with iridescent light, whistles, and door locks for extra safety. Now wouldn't an iridescent message a nice howdya do for the next purse snatcher, etc. Such tools are among the best ways, and all are safe--no nasty sprays, etc., to make potential attackers think twice. Bermuda overall is not a violent place--and we want it to stay that way. We need donations, though, to bring them in.

If you feel these issues are important, we hope you'll donate to the Rebecca Middleton Foundation, P.O. Box 195, Southampton, SNBX (Registered charity number 762). And I thank the many of you who already have done so.

Have a wonderful holiday and let's hope for a judicially fair (whatever the result) 2007.

[JJ on 19.12.06 at 13:19]

Carol, do you have the bank and the account number for the charity? I would be happy to donate.

[Carol Shuman on 20.12.06 at 03:07]

JJ--Bless your heart! The bank account is at the Bank of Butterfield. I will get it from Debbie (our treasurer) and make sure you get it. That is very kind of you. In fact, it probably would be a good idea to post it on the website. Many thanks to you and the other great people here who have been so supportive.