Lawyer tries to remove McNicolls

CHIEF Magistrate Sherman Mc Nicolls yesterday refused to step down from presiding over the extradition hearing of 69-year-old Jamaat Al Muslimeen member Lance Small. The magistrate’s refusal followed an application by defence attorney Pamela Elder SC for him to refuse himself from hearing the inquiry and allow another “competent” magistrate to preside. The basis of her application, Elder said, was that Small had expressed concern about McNicolls’ ability to give him a fair hearing. Small, also known as Olive Enyahooma-El, yesterday appeared before McNicolls to answer to charges of conspiracy to possess firearms, contrary to the laws of the United States.

He is wanted in Fort Lauderdale, Florida, where it is alleged that on May 30, 2001, he attempted to import 60 AK-47 rifles and ten Mac-10 machine guns with silencers into Trinidad. He was re-arrested and charged on Wednesday moments after he was released from the Frederick Street Prison, where he had been unlawfully remanded for over 30 days. He was charged by Sgt Williams of Interpol. The magistrate’s involvement in the first hearing was of major concern to her client, Elder said.  She highlighted the fact that McNicolls had initiated the issuance of two previous warrants after perusing the documentary evidence which would be used in the current hearing. In addition, she said, her client felt that based on the documentary evidence, that  McNicolls had already made a determination that the offence was extraditable. Brandishing a copy of a media release from Attorney General John Jeremie’s office which reportedly stated that Jeremie had given the order to arrest Small, the defence attorney said her client found this to be questionable. 

“Who gives the AG the authority to arrest any citizen?” the defence attorney inquired.  She reminded the court that there were separate powers between the Judiciary and the Executive arms of the State.  “Who did he give the order to?  Did he order you, since you signed the warrant?” she directed at McNicolls. At that point the magistrate interrupted, insisting that the proper procedure had been adopted.  The AG, he said, had given the authority to proceed and he (McNicolls) had ordered the arrest. Elder also expressed concern about the speed at which the Extradition Order was amended and assented on April 2 and the fact that the arresting officer did not have a warrant in his possession when her client was arrested yesterday.

Douglas Mendes SC, appearing on behalf of the US, vehemently opposed Elder’s application.  Brushing off Elder’s arguments as having no substance, Mendes said a dangerous precedent would be set if the magistrate refused himself from hearing the inquiry. “This is an ordinary case.  If every accused requested that a magistrate step down from hearing his matter because he feels he will not get a fair hearing, the administration of justice would grind to a halt,” he said. In addition, he said, the focus should not be placed on Small’s concerns about getting a fair hearing but on the judgment of a fair minded and informal observer.

This type of observer, Mendes said, would not view the situation as Elder’s client did. McNicolls, finding Elder’s application to be void of “merit” and “frivolous and vexatious,” refused to excuse himself from hearing the matter. He also denied the defence attorney’s application for bail because he felt satisfied that Small would fail to surrender himself to the court if granted bail. The evidence of the first witness will be heard on April 15.