The Guyana Court of Appeal has commenced hearing arguments from Gary Moses, who is appealing his death sentence for the 1993 murder of Leila Barrow, who was found strangled at her David Street, Kitty residence.
According to attorney Nigel Hughes, who is representing Moses, the trial judge failed to adequately put to the jury his client’s defence of having no knowledge of the crime, as he had told police.
Hughes took particular issue with the manner in which the investigations into the fingerprinting analysis was done.
He contended that the trial judge fell into “grave error” by telling the jurors that they could not conclude, even if they so believed, that there were inconsistencies in aspects of the fingerprint evidence presented at the trial.
Hughes reminded that jurors are the sole judges of facts, and if on that basis they found discrepancies, they were entitled to so find even though the fingerprinting analyst would have said otherwise.
The lawyer vehemently argued that this should have been a factual judgement call for the jury, but said it was hindered by the trial judge, who directed that it was wrong for them to have made such a conclusion by just looking at the facts presented to them.
He rhetorically questioned whether it was not the role of the jury to arrive at such conclusions, if the facts so suggested.
Hughes argued that this fundamental error could not be cured by the judge’s subsequent attempt at generically informing the jury that the testimony of expert witness is subject to the same scrutiny like that of any other witness.
He contended that even though the trial judge went on to explain to the jury that it is entitled to accept or reject, whether part or none of what any witness says, this directive was overshadowed by the initial order of the analyst’s findings not even being within their ambit to question.
So much so, he said, that even if they were in doubt, as to the obvious facts, they did not even get to consider it.
As far as the state is concerned, however, Moses’ defence was adequately dealt with by the judge and put to the jury.
For her part, state counsel Diana Kaulesar said that as the trial judge was duty-bound to do, the jury was told that it can only convict on the strength of the prosecution’s case, and not on the weakness of the defence’s.
According to Kaulesar, the judge in no way prohibited the jury from reaching conclusions, but was merely cautioning that the technicalities of the process could not be determined by lay persons, but by the analyst himself.
She went on to argue that even if this was a misdirection to the jury, as Hughes contended, it was not fatal, while noting that the question to ask was whether it was a material misdirection.
Meanwhile, acting Chancellor Yonette Cummings-Edwards, who is presiding over the appeal along with Justice of Appeal Rishi Persaud and High Court judge Justice Brassington Reynolds, enquired from Kaulesar whether earlier directions given by the trial judge were capable of being cured with subsequent ones.
The Chancellor observed that this would be a consideration for the court.
According to Hughes, the death sentence imposed upon his client was excessive as it was not mandatory, since the judge had a discretion whether or not the capital punishment would be handed down.
Kaulesar was, however, quick to point out that such a discretion was provided for only after amendments in 2010 to the Criminal Law Offences Act and that Moses was convicted for the crime before.
Moses was first convicted in 2003. He thereafter appealed his conviction but lost.
When the case is called again at a date to be announced, the court will be delivering its ruling on Moses’ appeal.
Barrow, 56, was found bound and gagged with curtains and was strangled with a bed sheet. She was murdered on July 21, 1993.
She was found upturned on her head/neck in one of the corners in the upper flat of her five-bedroom, 259 David Street, Kitty residence. She lived alone and was the caretaker of the house which belonged to a cousin living in the United Kingdom at the time.
Another man, Derrick Calendar, was also convicted and sentenced to death for Barrow’s murder.