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THE BIG INTERVIEW – The Myrie Matter

Tim Slinger

THE BIG INTERVIEW – The Myrie Matter

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Noted criminal lawyer and Jamaica’s Public Defender, Earl Witter, is investigating the controversial Shanique Myrie case in which the 22-year-old woman claimed she was cavity-searched by Barbados’ immigration authorities when she attempted to enter the island last March 14.
In this week’s Big Interview, Associate Managing Editor Tim Slinger speaks with Witter, who led constitutional arguments for the defence in the high-profile Maurice Bishop murder trial in Grenada 26 years ago, on his perspective of the issue, currently being discussed at diplomatic levels between the two countries.
Q: What’s your role as Public Defender in Jamaica?
Witter: The Public Defender is a Commission of the Jamaican parliament, mandated to protect and enforce the rights of citizens. It is a hybrid institution, discharging the classical ombudsman’s function of seeking redress for meritorious complaints of maladministration, as well as for infringement of constitutionally-guaranteed fundamental rights and freedoms, which is usually the remit of a Human Rights Commission.
Q: You were mandated to investigate the famous “Dudus” Coke affair in Jamaica following the riot and killings in Tivoli Gardens. What experience have you gained from that?
Witter: I was not “mandated to investigate the famous ‘Dudus’ Coke affair”. My mandate is statutory. I investigate complaints of the nature alluded to earlier or, as in the case of the Coke affair, initiate investigations, when perceived to be necessary and within the scope of that statutory mandate. In the Coke case, I received a number of complaints of alleged security force activities and complaints. 
Otherwise, I initiate investigations into reasonably suspected cases of judicial killings where, on the face of it, there appears to have been evidence of infringement of the protection of the right of life. These forensic investigations are continuing. The focus at present is on the ballistics work, the microscopic comparison of fragments and spent shells of bullets and firearms identification to determine their origins, if possible, to establish a nexus between a corpse, a fragment, a firearm and shooter. These investigations are founded upon personal experience gleaned from practice at the criminal bar, buttressed by my findings to date.
Q: The case in focus is the Shanique Myrie matter. What would you be looking for and what steps do you plan to take?
Witter: I was requested by the Ministry of National Security of Jamaica “to intervene” soon after Miss Myrie made her allegations. My jurisdiction is territorial. Thus, I contacted the Parliamentary Ombudsman of Barbados. I sought to engage him in an investigation of those allegations, with a view to determining their veracity. The expectation was that he would thereafter favour me with a report of his findings and recommendations.  
Since that time, however, I have been overtaken by events. Miss Myrie has retained counsel privately to pursue remedies which may be available to her. I have therefore practically yielded ground to her attorney. Besides, having regard to certain reported utterances of members or officials of the Barbadian Government, the Ombudsman has been put in an invidious position. Beyond that, the whole sorry business is being dealt with at high diplomatic levels, a development which I am constrained to bear in mind.
Q: At the completion of your investigations, what’s the next step?
Witter: Ordinarily, the Barbados Ombudsman’s findings or recommendations together with any which I myself may have felt able to make, would have been furnished to Ms Myrie; together with any reparations, if any, available and acceptable to her.
Q: In your opinion, what would have given rise to the many types of allegations publicly aired by Jamaicans against the Barbados airport immigration authorities?
Witter: It is a distressing reality that, particularly of recent times, Jamaican nationals of both sexes have engaged in narcotics trafficking, as drug mules or otherwise. Sometimes contraband is secreted in body cavities. I do not know much of the Barbadian experience in this respect. But, depending upon that, it may be that this has led to a regime of profiling. It may have excited or provoked undue suspicion of Jamaicans and, indeed, other nationals. Everyone should support lawful and reasonable endeavour to interdict drug trafficking. But authorities ought not, in their zeal, to tar everyone with the same broad brush.
Q: The issue of cavity searches has beenat the forefront of this entire affair. What’s your position on such searches, legal or illegal?
Witter: It would only be in the most exceptional circumstances that invasion of body cavities, particularly the very private parts, could be permissible in the course of purported drug interdiction.  In the first place, it should be done only on reasonable suspicion, ideally preceded by X-rays. Where appropriate or possible, the suspect should be asked to divest the substances: to pass them from the body under medical supervision. Any invasion not founded upon reasonable suspicion would, ipso facto, be unwarranted and therefore illegal. It may even amount to an assault or battery. Airport authorities should therefore be wary of extraordinary searches turning up nothing of interest, or they may incur legal liability. Otherwise they may provoke claims for constitutional redress, by reason of inhuman or degrading treatment of the traveller.
Q: As part of your investigations in this matter, will you be visiting Barbados? Also, what about Ms Myrie, given her allegations? Any plans for her to visit Barbados as well?
Witter: In light of my earlier answers, I have no present plans for travelling to Barbados (a place I like a lot) to carry out investigations or for other purposes. I imagine it is quite probable, if not necessary, that Ms Myrie will be asked to return to Barbados, to take her attorneys or investigators over the ground of her alleged ordeal.
Q: This issue has sparked serious controversy between Jamaica and Barbados. Any suggestions or prescription for healing?
Witter: There have been many allegations of rough and ready treatment of Jamaican nationals by Barbadian airport officials before and in the wake of Ms Myrie’s allegations. There are, I gather, complaints from other Caricom nationals. If there is any truth to these, the problem would seem to be systemic. Most certainly, emotions are running high in Jamaica, a sister Caricom country.  
I therefore consider it highly desirable and urgent that Ms Myrie’s story and what may be a systemic problem be investigated impartially and judicially. Perhaps a tribunal of eminent and qualified persons, drawn respectively from Barbados and Jamaica, with an independent chairperson, could be asked to undertake this important task. I would certainly be prepared to recommend this. 
Undoubtedly, steps are required to be taken to restore the most cordial relations between our two countries, as well as any other from which complaints have come.