Status of retired judge may affect convictions

Meanwhile, in the Court of Appeal, the case of Elvis Myers was heard today and the outcome may have bearing on some other cases that were tried by Justice Troadio Gonzalez. Myers was accused of the December twenty-sixth, 2005 murder of Winfield Slusher Junior, and the wounding of Police Constable Keith Cruz. He was charged with those crimes in January of 2006 and was found guilty of Murder and Wounding almost two years later on November thirteenth, 2007. P.C. Cruz took the stand as the main witness and his testimony secured a life sentence for Myers. But that is not the end of the story. While Myers’ former attorney Anthony Silvestre lost the case in the Supreme Court, his current attorney, Hubert Elrington, is trying to secure his release in the Court of Appeal because of the standing at the time of Justice Gonzalez who may not have been eligible to hear the Myers’ case.

Hubert Elrington, Attorney for Elvis Myers
“It came to my attention that Justice Gonzalez had retired from the bench shortly after this case was done and the reason why he had retired was that he had passed the age of sixty-five and had not realized it and had continued quite innocently, in my view, innocent mistake. He had continued on, and did some cases. This was one of them and I felt that that raised a question of jurisdiction because if the judge is not in fact appointed as a judge at the time he is sitting then the trial would, in my view, be so seriously defected that it could not be a trial within the meaning of our constitution and therefore I felt there was no trial, that the matter ought to be set aside.”

“I put in a very small skeleton argument and I put in an affidavit to which a birth certificate was exhibited, which purported to be the birth certificate of Mr. Justice Gonzalez. The court of appeal was very upset because they said I knew well enough that I had to connect the birth certificate with the judge and without that evidence the court of appeal could not proceed to hear the important issues which a case like this would raise.”

Jose Sanchez
“Now let me ask you, how can you connect the judge to the birth certificate. Does it mean you are going to bring Justice Gonzalez to say this is my birth certificate? Will you have to bring him to court?”

Hubert Elrington
“Well, how I am going to do it is a matter which I am thinking of right now. I might have to prove his age in a different way. I might have to use the birth certificate. But it is a very sensitive thing for me because I have known Justice Gonzalez for many, many years, he’s a person for whom I have a great deal of respect and I think he does a tremendously good work on the bench. This could have repercussions; it could affect convictions in relation to a lot of people who may be in prison right now who are not properly convicted. The law is by no means straightforward. It’s a difficult area of law.”

Jose Sanchez
“What day should the judge have actually retired?”

Hubert Elrington
“Under the constitution the judge retires on attaining the age of sixty-five but he can be reappointed on for a few more years. But that was not done, it was simply a just a continuation. When the mistake was realized, immediately the judge stepped down and heard no more cases and he was eventually reappointed, but that not in my view did make good the cases that were heard during that period when there was in effect no constitutional appointment.”

Jose Sanchez
“How will you prove that it is the judge’s birth certificate?”

Hubert Elrington
“I don’t know how I’m going to do it, but I will tell you this, I am going to do it and I’m going to do it effectively.”

Justice Gonzalez’s appointment will expire on August thirty-first, 2009. Elrington said that he has to make all his submissions on April fifteenth and the Director of Public Prosecutions has also been instructed to respond by May fifteenth. The case is expected to be resolved by June, but depending on the results it is possible that other convicts may appeal on similar grounds.