By Thursday evening at this time, Andrew "Pawpa" Brown and his older brother Floyd who are both wanted in Florida for drug crimes could be home on bail. The U.S. government's case against the brothers suffered another major blow today after Chief Magistrate Herbert lord refused a request by the Solicitor General to refer a question to the Supreme Court.
Solicitor General Elson Kaseke wanted leave to ask the Chief Justice whether lord's exclusion of certain key pieces of evidence violated the U.S. government's constitutional rights to a fair trial. In delivering his judgement the Chief Magistrate said that question can be answered by the higher court but it would have to wait until after the trial. He also called the request frivolous and vexatious.
In Magistrate's Court this morning Kaseke gave verbal notice that will he be applying directly to the Supreme Court to ask it to take his question. But that probably won't happen until September when the Chief Justice returns from vacation. That is why on Thursday, Lead Attorney for the Brown brothers Dean Barrow will ask the Chief Magistrate to release both brothers on bail pending the outcome of Kaseke's appeal.
We will have Barrow's comment to today's decision in a moment but first, here's the defiant reaction of the Solicitor General. He told Keith Swift that the Chief Magistrate made "fundamental errors," errors which he will go to the Supreme Court to correct.
Elson Kaseke, Solicitor General
"It was not a setback because I have the same rights to approach
the Supreme Court and I definitely am going to do so. The Chief Magistrate has made several fundamental errors in these proceedings, which we must all recognize. In extradition proceedings if you have a affidavit which is duly authenticated according to the treaty, he does not have a discretion to refuse to admit it. As you saw, he excluded the affidavit, which I tried to tender in and that was a fundamental error which he made. The second one is what he stated at the end of his decision, he said that these proceedings are frivolous and vexatious - let's take that to the Supreme Court. That is why he is refusing to have the Supreme Court review his decision. Thank you."
Keith Swift,
Are you going to oppose bail?
Elson Kaseke,
"I am going to oppose bail."
Keith Swift,
Mr. Barrow can I get your reaction to the decision?
Dean Barrow, Attorney for Brown Brothers
"It's clearly the correct decision. I have said from the start that it couldn't go any other way. The authorities are absolutely clear,
there was no just no room within which the court could maneuver; it had to go that way.
I can say again with absolute certainty that while the rules provide for him to approach the Supreme Court, he will be turned back; he will lose. On the substance of it, it is clear that you cannot quarrel with a ruling, be dissatisfied with a ruling, and then say that you can attack that ruling by way of a case stated urging that they are constitutional issues. I know because I tried it and I know what all the courts told me and the authorities and abroad. So while he can, mechanistic as it was, go to the Supreme Court, he will be told the same thing.
The fact now that Mr. Kaseke is causing the hearing to be long drawn out, it is now not the fault of the prisoners or their representatives, it is Mr. Kaseke who is causing these extraordinary delays. I think on that basis the court will be sympathetic to the fact that these people should not continue to be locked up indefinitely while this thing drags on and on. If Mr. Kaseke will every time he is dissatisfied go to the Supreme Court, and if he is dissatisfied with that go the Court of Appeal, we could be here for a year. So I think having signaled that that is exactly what he intends to, I think he court will have to be sympathetic to the bail application."
Barrow and the Brown legal team rounded out by Richard "Dickie" Bradley and Ellis Arnold will make that application for bail on Thursday morning. As Kaseke indicated, the prosecution will oppose bail. Kaseke's appeal to the Supreme Court could delay the extradition trial until October.
