Legalities core of defense for Vesuvius-suspect Andrew D.

POSTED: 10/23/12 2:55 PM

St. Maarten – Attorney mr. Cor Merx asked the court to declare the prosecution inadmissible in the case of his client Andrew D. because of several procedural violations. The prosecution demanded 9 years against the defendant last week, though it asked the court to acquit him of involvement in the murders of Eric Lake and Kevin Gumbs on August 17 of last year for lack of evidence. But the prosecution considers D. guilty of weapons possession, membership of a criminal organization and of being an accomplice to the attempted murder of Omax Bye on April 20 of last year.

mr. Merx cited several problems with the indictment against his client, noting that the court declared one of them void in a court session on June 6. “Based on that decision my client should have been released, but that did not happen. Then the prosecution demanded an order to imprison my client and that was granted. I have never seen this in my life. It is something like a legal salto mortale without a safety net. Such an order is only possible during a court hearing against someone who is free.”
But Andrew D. was detained in the Netherlands. there were quite some other legal details mr. Merx pointed out to the court. His conclusion: “My client has to be released immediately.” But Judge Rick Smid did not honor that request, at least not yesterday. The prosecution will respond to all defense arguments on Thursday morning. Attorneys get one shot at countering the response before Judge Smid gives the seven defendants the last word. Sentencing will most likely follow three weeks later, on Thursday November 15.
mr. Merx pointed to the use of text message content in the case against his client and said that this is reason to declare the prosecution inadmissible, or to exclude these messages from evidence.
A core issue in his defense was that Andrew D. had been structurally observed during the investigation, while there was at the time of the investigation no legal basis for it. mr. Merx said that a man claiming to work for Windward Roads had one day showed up at a soccer game and asked if he could play. Andrew D. noticed that the man’s hands were “too beautiful” for a Windward Roads employee and that he felt he was closely watched by him. After playing soccer twice the man made pictures of the defendant without asking his permission. He also asked for his phone number; after that, he never came back, mr. Merx said.

The attorney detailed how his client had been followed by men in a white car and that he had recognized the so-called Windward Road employee as one of the passengers. After his arrest on November 16, D. was detained in the Netherlands. When he returned to St. Maarten and was interrogated at the House of detention in Simpson Bay, he recognized one of the detectives as the bogus Windward Roads employee.

The officer asked D. whether he knew if Omar J. had killed Sheldon (Thomas – ed.) in the night from August 17 to 18. The defendant said he did not know.
mr. Merx referred to the case of Louie Laveist where structural observation had also been an issue. In that case, the court ruled that this tracking method violated the European Human Rights Treaty and that the method requires that it is regulated by law. This is in the meantime, since August 15 of this year, the case. mr. Merx concluded that the court should exclude evidence obtained via this method or that it should lead to a sentence reduction.

mr. Merx asked the court to declare the charge for membership of a criminal organization void because it is unclear whether his client is accused of belonging to the gang of Omar J. or to the gang of Erno L. the attorney dismissed statements co-defendant Charles F. made about the organization. “Who believes him? He simply states what he has been asked to state.”
mr. Merx said that there is no proof his client was at the scene of the shooting near the former Tan Tan supermarket. Based on a technical point in the indictment, the attorney held that it had to be declared void.
He asked the court to acquit his client of firearms possession, saying that the weapons had been thrown over a fence into his yard by either Ekron M. or Doniel Th.
Like the public prosecutors, mr. Merx also asked the court to acquit his client of involvement in the murders of Eric Lake and Kevin Gumbs on August 17 of last year.

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