Convicted murderers want right to choose lawyer for appeals
Civil proceedings have been launched by two convicted murderers who claim that they are being denied the right to their lawyer of choice to appeal their cases.
Jeremiah Dill and Jay Dill, both serving life sentences at Westgate for gun murders, have been approved for legal aid funding from the public purse to try to get their convictions overturned at the Privy Council, Bermuda’s highest court of appeal.
They claim in affidavits shared with The Royal Gazette that the Legal Aid Committee’s refusal to let them choose their lawyer is “unlawful, and/or irrational, and/or unreasonable”.
The committee is expected to counter that it has power under the Legal Aid Act 1980 to make the sole determination as to which lawyer should represent them.
The two convicts asked the committee to transfer their legal aid certificates from their previous local lawyer to Shi-Vaughn Lee, of 95 Law, who was called to the Bar four years ago.
The men wanted Ms Lee to instruct Richard Thomas KC, a lawyer whose London chambers describe him as having “extensive experience of complex and high-profile trials and appeals”.
The committee refused their requests on the grounds of Ms Lee’s inexperience and said that acting senior legal aid counsel Susan Mulligan would be appointed to represent them.
The defendants do not want to be represented by Ms Mulligan, an experienced defence lawyer and special prosecutor from Canada, and they have applied for leave to seek a judicial review of the decision.
They are being assisted by Eron Hill, a paralegal at 95 Law, who said he was helping them as a McKenzie Friend — someone who assists litigants representing themselves in court — in his personal capacity.
Mr Hill is also helping several other men awaiting trial for serious crimes, who cannot be identified for legal reasons and who have asked the committee to transfer their certificates to Ms Lee.
They, too, were refused on the grounds of Ms Lee’s inexperience, and two of them are seeking judicial reviews.
The committee also rejected Bruce Swan, the second-choice lawyer for the two convicted murderers and one of the other defendants, who has been practising law for a decade but has less experience than Ms Mulligan in the Supreme Court and higher courts.
Mr Hill said he became involved because he believed that a 2018 amendment of Section 12 of the Legal Aid Act was being used to justify restricting which counsel defendants on legal aid could have representing them.
He claimed that this was unfair and unconstitutional, and insisted that legal-aid clients should be able to choose anyone from the committee’s list of active private practice lawyers “who are able and willing to represent applicants and assisted persons” under Section 5 of the Act.
Ms Lee and Mr Swan are on that list.
“The Legal Aid Committee are effectively dictating to defendants who they can and cannot select to represent them when the intention of Section 12(2), as read with the Section 5 roster, was to give them the unequivocal choice,” Mr Hill argued.
“The result is that trials are being significantly delayed and the public purse is at the risk of further expense because costs consequences flow from the separate judicial review proceedings, which the committee will have to deal with.”
Mr Hill highlighted remarks from former committee chairman William Francis in the Legal Aid Office Annual Report 2019 about Privy Council appeals.
Mr Francis wrote that where cases were to be heard by the highest court, the committee allowed local counsel to attend “so as to have the benefit of working with Queen’s Counsel with respect to the preparation and conduct of the hearing”.
Mr Francis said this was beneficial to their growth and raised the skill level of the Bermuda Bar as a whole.
He added: “The Legal Aid Committee has not approved overseas QCs for serious criminal cases for some years.”
The 2018 amendment to the Legal Aid Act, which came into effect on March 1, 2019, was aimed at cutting government costs and required legal aid clients to use in-house government lawyers, except in certain exceptional circumstances.
The amendment came under fire, with lawyer and former magistrate Archibald Warner describing it in 2020 as a “callous, unlawful way to avoid financing a constitutional right”, but such a claim has not yet been tested before a judge.
Mr Warner wrote: “It is a legitimate expectation of both litigant and attorney that a litigant’s right to a fair trial under the Constitution and the attorney’s right — indeed, their duty — to represent the litigant is constitutionally protected.
“Therefore, this right cannot be restricted or removed by a simple amendment to the Legal Aid Act, as the amendment of Section 12 of that Act purports to achieve.”
A previous civil lawsuit on constitutional grounds was brought by a defendant who was refused a legal aid certificate for his lawyer of choice — but it is understood the action was dropped after the committee backed down.
Legal Aid Committee chairwoman Cheryl-Ann Mapp said in March that there was a “statutory framework that applies for consistency, fairness and accountability for the public purse and, as such, the Legal Aid Committee will take into consideration the type of matter, its complexity, etc”.
She argued that Section 12 gave the committee power to make the “sole determination as to counsel to be assigned to a matter”.
The two unnamed defendants awaiting trial have been given the go-ahead by the Supreme Court to proceed with their civil action against the committee on the basis that they have an arguable claim for the relief sought in the judicial review proceedings.
Ms Mulligan said: “It is not the practice of this office to comment publicly on matters before the court.”
There was no response to questions sent to the Attorney-General, Kathy Lynn Simmons.
Jeremiah Dill was found guilty of the 2010 murder of Perry Puckerin and sentenced to 35 years behind bars in 2018. He failed to persuade the Court of Appeal to overturn the conviction in 2020.
In a handwritten letter to the Legal Aid Committee sent from Westgate on May 9, Dill said he wanted Shi-Vaughn Lee to “conduct the local representation for my appeal against conviction to the Privy Council” after losing faith in his previous lawyer.
The Legal Aid Committee told him in July that Ms Lee did “not possess the relevant years of experience to conduct your appeal to the Privy Council”.
Dill said in a September 18 affidavit that the committee previously agreed to transfer his legal aid certificate from Susan Mulligan to another lawyer, thereby accepting that his case was not appropriate for in-house government counsel.
Jay Dill was found guilty in 2013 of the premeditated gun murder in 2011 of footballer Randy Robinson. In 2016, the Court of Appeal found the conviction was safe.
He also claimed in an affidavit that because the committee had previously issued his legal aid certificate to external counsel, “it accepted that my case was not one which was/is appropriate to assign in-house legal aid counsel”.
• To view the Legal Aid Office Annual Report, see Related Media
• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers
