Derek Achong

Lawyers representing one of two men accused of murdering six-year-old Sean Luke as teenagers has claimed that his semen being found on Luke’s underwear is not proof that he murdered him. Akeel Mitchell’s lawyer Mario Merritt made the suggestion yesterday as he presented a no-case submission for his client during a virtual hearing before Justice Lisa Ramsumair-Hinds. “All the semen on the shorts prove is that he (Mitchell) may or may not have had sex with the deceased. It does not take us further than that,” Merritt said. Merritt claimed that all the evidence presented by prosecutors since the judge-alone trial began in early April was merely circumstantial and speculative. He noted that prosecutors were relying on the evidence of two teenagers from Luke’s community, who claimed that they saw Mitchell, his co-accused Richard Chatoo and Luke divert into an abandoned sugarcane field, which bounds their community, while they were all going fishing. Merritt noted that there was no direct evidence of what transpired in the sugarcane field up until Luke’s decomposing body was found there, two days later. He also reiterated that there were numerous inconsistencies in the duo’s evidence with both admitted that they initially lied to police when questioned over Luke’s disappearance. While Merritt accepted that Mitchell’s DNA was linked to semen found on Luke’s underwear, he noted that he was not linked to DNA profiles found on anal swabs taken during Luke’s autopsy and on the sugarcane stalk that was used to sodomise him. He noted that investigators admitted that they did not do fingerprint testing on the improvised weapon to link it to Mitchell. “If tested, it probably would have assisted in the prosecution’s case,” Merritt said.Merritt noted that as Mitchell and Chatoo are accused of joint enterprise, the State had to prove that both conspired to murder Luke. He stated that it (the State) could not rely on a statement, which Chatoo gave allegedly implicating himself, as one accused cannot implicate the other.“There is no evidence as to the role played by each party,” Merritt said. He also suggested that the court had to consider that in law, children between the ages of seven to 14 are not considered capable of committing criminal conduct unless it can be proven that their actions went beyond mere mischief or naughtiness. “The heinous or horrifying nature of the crime cannot be used to determine this,” he said. While Merritt admitted that his client was six weeks shy of his fourteenth birthday at the time of Luke’s murder, he said that the court had to consider that his client did not have the same mental capacity of a comparable 14-year-old as he only attended primary school. He suggested that prosecutors should have brought a psychiatrist or one of Mitchell’s former teachers to address the issue. Chatoo’s lawyers were initially expected to do a no-case submission as well but they eventually decided against it. After State prosecutors present their written response to Mitchell’s on Friday, Justice Ramsumair-Hinds will then take the weekend to consider it before returning with a decision on Monday. If Justice Ramsumair-Hinds agrees with the submission, it would mean that Mitchell could be set free leaving Chatoo on trial. If it is rejected, Chatoo and Mitchell will be given an opportunity to present their defences before Justice Ramsumair-Hinds considers the evidence and determines their guilt or innocence. Chatoo’s lawyers have indicated that he would testify in his defence. Mitchell is expected to remain silent but will call one defence witness. Luke went missing on the evening of March 26, 2006 and his body was found two days later in an abandoned sugarcane field next to his community. An autopsy revealed that he died from internal injuries and bleeding arising out of being sodomized with cane stalk. Chatoo, who was 15-years-old at the time, and 13-year-old Mitchell, who is the nephew of Chatoo’s stepfather and lived with them briefly before Luke’s murder, were charged with the crime. During the trial, DNA evidence was presented linking Mitchell to the sugarcane stalk used to sodomise Luke and semen that was found on his underwear.

A second foreign DNA profile was found on the underwear but Chatoo was not linked to it. Chatoo also allegedly confessed to his role in the crime in an interview with police but his attorneys have contended that he was intimidated and coerced into doing so and was not warned of his constitutional rights. Mitchell is also being represented by Randall Raphael and Kirby Joseph while Evans Welch, Kelston Pope and Gabriel Hernandez are representing Chatoo. Sabrina Dougdeen-Jaglal, Anju Bhola and Sophia Sandy-Smith are prosecuting.