80 years for one, retrial for second in 2015 family massacre

A Jamaica Observer file photo of inside a courtroom at the Court of Appeal building in downtown Kingston. AN appeal from two men serving life behind bars for the “brutal execution-type slaying” of six members of one family and the arson of the family home, which left four survivors severely burnt, has resulted in one felon losing his bid to overturn his conviction and his 80-year pre-parole period being affirmed, while the other is heading to a retrial for the six murders. The Appeal Court, however, affirmed the sentences for that man on five other counts. The men, Mikhail Campbell and Errol Clarke, had been jointly charged, tried, and convicted on an indictment containing 11 counts for the offences of arson (count one), murder (counts two to seven), and causing grievous bodily harm with intent (counts eight to 11) before Supreme Court Judge Justice Martin Gayle and a jury in the Hanover Circuit Court in November 2018. The jury convicted both men on all 11 counts, unanimously in the case of Campbell and by a majority of five to two in the case of Clarke. Campbell and Clarke were sentenced to 20 years’ imprisonment for arson and 20 years’ imprisonment for each count of causing grievous bodily harm with intent. Campbell was sentenced to life imprisonment on each of the six counts of murder, with the stipulation that he would not be eligible for parole until after serving 43 years for the first three counts of murder and 40 years for the remaining three. Clarke was also sentenced to life imprisonment for each of the six counts of murder; however, it was stipulated that he should serve 40 years before becoming eligible for parole on each count. For both men, Justice Gayle ruled that counts one to four and counts five to 11 were to be served concurrently, while counts five to 11 were to be served consecutively to counts one to four, resulting in a total minimum sentence of 80 years’ imprisonment before eligibility for parole. In what was described by the court as “an unimaginable act of cruelty and brutality” on the night of October 8, 2015, perpetrators forcefully entered the home — which had just hours before been the scene of a celebration to welcome the mother and daughter who had returned from an overseas visit — and despite desperate pleas, shot and killed a 62-year-old matriarch, a pregnant 36-year-old woman, two men in the prime of their lives (40 and 29 years old), a young woman who had just attained the age of majority, and a minor aged 15 years. They then set the house on fire, resulting in the deceased being burned beyond recognition and the four survivors being left with thermal injuries affecting 13 to 25 per cent of their bodies during their desperate fight to escape the flames. The crime, according to prosecution witnesses, was premeditated and motivated by revenge on the part of Campbell, described as a “close, trusted family friend of the deceased” who had been present at the homecoming celebrations earlier in the day. Campbell, the court was told, took men to the house to exact vengeance on one of the family members for “disrespecting” him. After the family members failed to disclose the whereabouts of the man who was being sought, they were executed by Campbell and Clarke. Ironically, that family member, who was one of the six Crown witnesses to testify during the trial, had taken refuge under a bed in one of the rooms in the house. The men, following their convictions, appealed. Campbell challenged his convictions and sentences, arguing, among other things, that the prosecution’s case against him should have been thrown out since it hinged entirely on voice identification evidence which he contended “was inconsistent, insufficient, and unreliable”. Campbell did not challenge the sentences imposed for the offences of arson and causing grievous bodily harm with intent, but insisted that the sentences for the murders were “manifestly excessive”. Clarke, on the other hand, in appealing his convictions, maintained that the jury was deprived of its statutorily mandated time for deliberating the six counts of murder against him, as such rendering the murder convictions “unsafe” and the trial a nullity. According to the court’s record, on November 30, 2018, the seven jurors retired at 12:16 pm to deliberate and reach a verdict for Clarke and returned 58 minutes later at 1:14 pm; the foreman indicated that they had not arrived at a unanimous verdict. The trial judge directed them to continue deliberating. The jury retired again at 1:18 pm and returned 40 minutes later at 1:58 pm to announce their majority verdict. The total time of deliberation was one hour and 38 minutes. Section 44 of the Jury (Amendment) Act, 2016 stipulates that a jury deliberate for two hours before returning a majority verdict. The Appeal Court, in considering the argument that the sentences for the murders were “manifestly excessive”, said “it cannot be denied that this matter could be regarded as an exceptional case and represented…‘the worst of the worst’ for this type of offending”. In fact, the Appeal Court said it was “worth recognising…that the prosecution could have, at the very least, sought the death penalty with respect to the second and subsequent murders”. It, however, said, “In light of the errors identified in the learned trial judge’s approach to sentencing…it is fair to say that his sentencing approach lacked the required structure and clarity essential in a case of this magnitude, thereby entitling this court to embark on its own sentencing exercise.” The judges of the appeal, while declaring that “the magnitude of the brutality and callousness surrounding the killing of all six deceased cannot be overemphasised”, admitted that “the learned trial judge did not employ the structured methodology that has since become well established for determining appropriate minimum pre-parole periods, nor did he otherwise demonstrate how he arrived at those periods”. “In the absence of comparable cases to provide guidance, it was especially important for the basis of those periods to be apparent from his reasoning. The learned trial judge also failed to consider each count separately, and he imposed lesser sentences on the latter counts of murder,” they stated. The Appeal Court panel, however, following a resentencing exercise for Campbell, said there actually was an increase in the aggregate minimum pre-parole period he was to serve. It, however, said since based on case law there can be no increase in a convicted person’s sentence on appeal without notice to him and/or his counsel of the court’s intention to do so, and given the absence of any such notice, “Campbell shall serve an aggregate minimum term of 80 years’ imprisonment before eligibility for parole, as ordered by the learned trial judge”. “The learned trial judge did not err in rejecting the submission of no case to answer that was made on Mr Campbell’s behalf. The quality of the evidence was sufficient for the learned trial judge to determine that it merited the jury’s consideration. He also gave the jury all the appropriate directions on voice identification and on inconsistencies and discrepancies. It was for the jury, the judges of credibility, having heard the evidence and being properly and adequately directed, to determine the weight to be attached to the evidence and arrive at the verdicts they considered appropriate. It is pellucid from their unanimous verdicts that they were convinced beyond a reasonable doubt that Mr Campbell was guilty as charged. The application for leave to appeal conviction is, therefore, refused,” the judges of the appeal ruled. In respect of Clarke, the judges of the appeal said the trial court was obliged to observe and uphold the law which mandates that a majority verdict in a murder case may be received only after “the lapse of two hours from the retirement of the jury”. “As a result, Mr Clarke’s trial, conviction, and sentence on counts two to seven of the indictment amount to a nullity. Therefore, the convictions on those counts will be quashed and the sentences set aside…a retrial of those counts of the indictment will be ordered in the interest of justice,” the judges of the appeal ruled. In the meantime, however, the court said, the aggregate sentence of 40 years’ imprisonment — comprising two 20-year terms ordered to run consecutively — was neither manifestly excessive nor disproportionate, and did not breach the totality principle in Clarke’s case even though the learned trial judge erred in failing to deduct the three months Clarke spent in pre-sentence remand. “In accordance with the authorities, this period will be deducted from the sentence imposed on count one of the indictment. This will result in a sentence of 19 years’ and nine months’ imprisonment at hard labour. This is the only basis for interfering with the sentences imposed by the learned trial judge,” the Appeal Court said in allowing the appeal against the sentence, in part. “The sentence of 20 years’ imprisonment at hard labour on count one of the indictment is set aside and substituted therefor is a sentence of 19 years’ and nine months’ imprisonment at hard labour, with three months spent on pre-sentence remand being fully credited. The sentences on counts eight to 11 are affirmed. The sentences on counts eight to 11 are to run concurrently but consecutively to the sentence on count one as imposed by the learned trial judge. The appellant shall, therefore, serve an aggregate term of 39 years and nine months’ imprisonment at hard labour,” the judges of the appeal ruled in respect of Clarke. “The sentence on count one is to be reckoned as having commenced on December 14, 2018, the date on which it was imposed. The sentences on counts eight to 11 are to commence after completion of the sentence on count one,” the court said further.