ATTORNEYS for Akeel Mitchell have, for the third time in as many months, asked for the indictment against him for the murder of six-year-old Sean Luke to be stayed.
This time, they have concerns about the fairness of Mitchell’s trial because of the timing of the disclosure of deoxyribonucleic acid (DNA) evidence, some 16 years after he was charged.
Although accused of “ambushing” the proceedings with the motion to stay the indictment, Mitchell’s lead attorney, Mario Merritt, said it could only be done after the State filed its application for permission to use the evidence at the trial in April.
Justice Lisa Ramsumair-Hinds was expected on Monday to hear submissions from Mitchell’s legal team which said they were resisting the State’s application to have the further evidence admitted at the trial.
Instead, they filed the motion to stay the indictment.
She heard submissions from the State in response and is expected to give her ruling on Wednesday morning, when the case resumes.
Depending on how she rules, and whether Mitchell’s motion finds favour with her, the evidence will be amended to be admitted for Richard Chatoo, whose attorneys have said they are not objecting to the evidence being led at his trial.
Mitchell and Chatoo have been indicted for Luke’s murder sometime between March 25 and 29, 2006. They have opted for a judge-only trial.
Luke was sodomised with a sugar cane stalk and died from internal bleeding.
In the motion, Mitchell’s attorneys have complained of a non-intimate sample being taken from their client in March, citing the DNA Act. They have also complained of the delay in providing the report of the DNA analysis of samples obtained from Luke’s body and his clothing, saying the prosecution gave no proper excuse for why it took 16 years to do so.
“The criminal procedure rules do not apply only to the defence but also the prosecution…And this piece of evidence changes everything.”
In resisting the motion, senior prosecutor Sabrina Dougdeen-Jaglal countered that Mitchell’s team could not complain of not knowing, before the trial started, that it hoped to have the DNA evidence admitted if the court gave permission.
She provided a time-line from December 2020, when, she said, she put everyone on notice of the prospects of the State obtaining the DNA analysis and reports, which was being actively pursued.
Dougdeen-Jagal said the reality was all parties knew DNA evidence formed part of the case, since there were certificates of analysis relating to samples taken from Luke.
“The defence did not have a wish or a dream, but notice that we applied for fresh evidence to be admitted.”
On the complaint that Mitchell was forced to file his notice of defence before the evidence was disclosed, the prosecutor said there was nothing preventing his team from holding off until the DNA records were in their hands.
“His defence is one of alibi and denial…You had 16 years to know your defence. To say you will be prejudiced – your defence is your defence. It can’t change.”
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