Privy Council criticises Guerra — overturns murder conviction

The law lords of the Judicial Committee of the Privy Council have criticised Senior Counsel Theodore Guerra for his conduct while prosecuting a murder trial in the British Virgin Islands (BVI). Their Lordships said that Guerra’s conduct was wholly at variance with the way prosecuting counsel, as a minister of justice, should behave. They detected Guerra’s address to the jury to be xenophobic, inflammatory and that he sought to make use of inadmissible and irrelevant material.

The British law lords made their comments in the judgment of Alexander Benedetto and William Labrador which was delivered on April 7, 2003. Both men were freed of the murder conviction. Hearing the appeal were Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry. The judgment was delivered by Lord Hope.

Benedetto and Labrador, together with Michael Spicer and Evan George went on trial on April 20, 2001 for the January 14, 2000 murder of Lois McMillen. Guerra was the prosecutor in the matter.  The attention of the British law lords was first drawn to Guerra’s conduct of the case by Labrador’s attorney Fitzgerald QC, in support of his argument that Labrador did not have a fair trial. Fitzgerald said that Guerra cross-examined Labrador in an oppressive manner and that he made an unjustified attack on Tisha Neville, a parole officer from Texas who had been called to give evidence as to the credibility of a State witness — Jeffrey Plante, who was in prison.

Fitzgerald also said that Guerra in his address to the jury used terms which were xenophobic and inflammatory, referred to inadmissible evidence and made improper attacks on the credibility of Labrador. Their Lordships agreed that there “are various aspects of the way in which Mr Guerra conducted himself which call for comment as they were wholly at variance with the way in which prosecuting counsel, as a minister of justice, should behave.”

They also explained the greater personal responsibility of a prosecutor whose duty must be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings, noting however, “this is not to say that a standard of perfection is expected. “In practice this is, no doubt, unattainable. But the defendant has an absolute right to a fair trial... If the departure from good practice is so gross, or so persistent or so prejudicial as to be irremediable, an appellate court will have no choice but to hold that the trial was unfair and quash the conviction.”

The Board accepted that juries need to be spoken to in a language and style that they will understand, and that there was nothing wrong with a prosecutor delivering a robust but respectful speech. “But there is an obvious difference between a robust speech and one which is xenophobic, inflammatory and seeks to make use of inadmissible and irrelevant material. Regrettable, some parts of Mr Guerra’s speech fell plainly into the latter category.” 

The Board said that Guerra devoted much of his speech to an attack on the credibility of Labrador and his witness Neville.  “There was more than a hint of xenophobia in the methods which he used to develop this attack, as he sought to align himself with the local jury against these American witnesses.” Using examples from the transcript of Guerra’s speech, the Board demonstrated their point — Guerra: “We who have been brought up in the British tradition of justice” will not tolerate any disrespect by anyone, “no matter who it may be or where they come from to the laws and morals of our country.”  (Guerra referring to Tisha Neville): “This woman is playing with our grey matter. She figures that they can come from their big country and fool people here.” 

Their Lordships dealt with another example in which Guerra referred to Labrador’s answer that he (Labrador) was not angry when he discovered his cell mate Plante had given the police a statement alleging that he, Labrador, had confessed to him, taking part in the killing of McMillen. Guerra said: “If that is the American way, we in the West Indies know it is different”;  asserting that it was the jury’s job to decide whether Plante was speaking the truth... not any American witness “who has her own agenda.” (About six years earlier, in Hawaii, where Plante was imprisoned, he had given a similar statement in another matter). 

Guerra began his attack on Labrador’s credibility by referring to an incident during the trial when the judge had occasion to rebuke Labrador’s sister for gesturing to him while he was giving evidence. She denied she was gesturing, but the judge insisted she was. The Board observed that Guerra having reminded the jury of this exchange, aligning himself once again with the jury against the Americans by using the words “we” and “our”, he said: “We have respect for our judges and no one is going to come to tell our judges he is a liar. And later on I am going to show you that lying is a natural tendency of the Labrador. This remark, which was the subject of a rebuke by the trial judge, was improper. Labrador’s sister was not a witness and the exchange between her and the judge was not part of the evidence, their Lordships stated.

The Lords also pointed out that Guerra developed his attack on Labrador by suggesting that he was disloyal to his friends and  unfeeling and cold-blooded towards them, asserting that he was taking care of numero uno, and further observing, with reference to the fact that he agreed to be treated separately from the other accused, added,  “with a friend like that who needs enemies?”  The Board insisted that “none of these remarks was directed to his (Labrador’s) credibility. They were designed simply to prejudice the jury against him.” 

The law lords also referred to Guerra’s attack on the evidence Neville gave about Plante’s parole status and the motive which he had for lying, by suggesting that she had been fed with information by the defence and was part of “the Labrador defence team.”  The Board also observed that Guerra suggested that the transcript of a trial in Hawaii, to which Neville referred to show similarities between the evidence which Plante gave against his fellow prisoner at that trial and the evidence which he had given against Labrador, was a concoction, that it had been “manufactured”, and that she had “come here” to the West Indies  “to pull wool over our eyes”.  He further described her as “a woman who cannot tell the truth about anything; a woman who uses all these subterfuges” who “had her own agenda” to say that she did not believe Plante. The law lords concluded: “His (Guerra)  sweeping denunciation of her had no foundation in fact. He had no evidence that the transcript was false. It has been subsequently been shown to have been genuine.”

The Privy Council in overturning the Eastern Caribbean Court of Appeal ruling and freeing both men, further observed that Justice of Appeal Satrohan Singh could not discern any form of xenophobia in Guerra’s remark and that he did not see in any other respect there was misconduct. And that the views of the Court of Appeal on a matter of this kind are entitled to great weight. But the Board insisted: “Having studied the transcript carefully, their Lordships cannot agree with this assessment. Issues of credibility lay at the heart of this trial. The prosecutor’s failure to deal with them fairly, reinforces the decision which their Lordships have already reached that Labrador’s conviction was unsafe.”