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Knight, left, and Phillips
Garwin Davis, Assistant News Editor
PLEA-BARGAINING - "the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval" - could, many legal observers feel, soon become an integral part of the island's criminal justice system.
In fact, judging from recent utterances from Prime Minister P. J. Patterson and also the Minister of National Security, Dr. Peter Phillips, it would come as no surprise, they say, if "sweeping legislations are enacted to push plea-bargaining through as quickly as possible."
"There are many pros and cons where plea-bargaining is concerned but we believe the benefits greatly outweigh the concerns," Dr. Phillips said in an interview with The Sunday Gleaner last week. "It has a proven track record in the United States, Great Britain and Australia and as long as it facilitates the speedy resolution of issues without distorting the course of justice the Government will continue its commitment to make plea bargaining a part of the justice system."
Sudden shift
The Prime Minister made his case during his contribution to the 2002/2003 Budget debate in the House of Representatives back in April. He, however, did not say when the legislation would come before the House.
"When people are engaged in a criminal enterprise, they better operate on the basis that one of them might talk," the Prime Minister warned.
He stressed that the law requiring corroboration for certain kinds of testimony would, nevertheless, remain in place so that "people do not simply lie to get off on a lighter sentence".
For both Mr. Patterson and Dr. Phillips, this new-found enthusiasm represents a 360-degree shift from the administration's previous stance on plea-bargaining
Only a year ago, it was first introduced as one of 83 recommendations made by the United State-based Police Executive Research Forum (PERF) to reduce crime in the Corporate Area.
It, along with two other of the recommendations were, however, roundly rejected by then Minister of National Security and Justice K.D. Knight.
Mr. Knight's rationale was "we fail to accept it at this stage because it is not in our best interest." He also expressed concern about the way in which plea-bargaining works, saying "it could cause some injustice in the system."
The 100-page plus report submitted by PERF to the Government was described by Commissioner of Police Francis Forbes as demanding "revolutionary and radical changes" in the country's approach to fighting crime.
He said he did not believe that some of the changes recommended were impossible, but stressed that the Jamaica Constabulary Force (JCF) would have to change "the way we do some things."
The report, ino calling for a dramatic shift in how crime is viewed in Jamaica, stressed the need for improved relationship between the police and community, emphasising the importance of community policing.
And on the topic of plea-bargaining, the report states that the absence of such ensured "backlogs that cause long trial delays".
But why the sudden shift to something that only a year ago was considered not in the country's "best interest"?
The Director of Public Prosecutions (DPP) Kent Pantry, whose department would play a critical role should plea-bargaining be introduced, would not comment on the matter.
When contacted last week, his secretary explained that Mr. Pantry would not be commenting seeing that the matter was still being discussed at a ministerial level.
Michael Hylton, Solicitor General, had no such constraints. According to him, a lot has changed since then, noting that the system now requires something as potent and proven as plea bargaining to help fight crime.
"For one thing, I wasn't here then," explained Mr. Hylton. "Things have gotten worse, the backlog in the court system has gotten worse, crime has gotten out of control and also, we now have a new Minister of National Security."
Mr. Hylton was careful to add though that "the thought that guilty persons may somehow walk free after cutting a deal, I believe, is one of the reasons why some persons are uncomfortable with the idea of plea-bargaining. We must remember that the entire thing...whatever deal is made will have to be approved by a judge. The Crown and the defence attorney can work things out but they alone do not decide punishment...the judge has to be involved."
Lawyers' objections
Mr. Hylton said that, despite this, he expects members of the judiciary to be the hardest group to be convinced about the merits of plea-bargaining.
"If we pass this law tomorrow, for the first six months, I don't expect a single judge to be in support of it," he notes. "I think eventually, like everything else, they will come around."
Chief Justice Lensley Wolfe, however, notes that while members of the judiciary would not object to plea bargaining becoming a part of the justice system, warns that the ultimate decision as it relates to punishment lies with judges.
"If the judge's hands are going to be tied, then I am afraid that will pose a problem," he said. "We can't stop the legislature from legislating but we cannot go along with any agreement without taking certain things into considersation. Before we could go along with a reduced sentence for somebody who has agreed to a plea, we will have to look at his record...if his antecedents is not satisfactory then that will also present a problem...that is an important factor in defering sentence...it must be weighed carefully."
The Chief Justice also notes that it would be a mistake to think that the introduction of plea-bargaining would be an end-all to the country's crime problem.
We don't have a culture where people normally plead guilty to anything," he said. "I don't know how many persons would be prepared to enter into this kind of arrangement. We must also understand that it hasn't worked well in Trinidad... but even though I don't think it is a bad thing to have on the statute."
Lawyers, too, are also taking a guarded approach, cautioning that "it should be explored properly rather than be hastily implemented."
Clayton Morgan, president of the Cornwall Bar Association, notes that some very compelling arguments were being made in regards to plea-bargaining, but that they had to be weighed very carefully.
"There are many things being put forward in favour of introducing plea-bargaining," he said. "Because the courts are so heavily congested, it is generally felt that having some of these lesser cases disposed of without having to go through the rigours of a trial would ease some of the burden."
However, Mr. Morgan adds that he was "totally against justice being dispensed in such a way," noting that "this is equivalent to legal bribery."
He said "having a defendant pleading guilty and receiving a lighter sentence in exchange for assisting the Crown could lead to "corruption among other things".
"I would rather the justice system remain the way it is and for us not to embrace this American concept," Mr. Morgan continued. "In America, plea-bargaining not only compromises the rights of persons but it also entices someone to lie to get out of a sticky situation."
Reducing case loads
It is not exactly clear how plea-bargaining first came about but it is widely believed it was first introduced into the American justice system during the second half of the 19th century.
It has since become an established fixture and to the point where nearly 90 per cent of all felony convictions in the United States today are considered to be a result of some form of plea bargaining.
Prosecutors within that country have been using it to telling effect, greatly reducing their case loads so as to focus attention and resources on "the cases that directly and truly affect society."
They have also been able to break open a number of high-profile cases by "offering pleas" to co-conspirators in exchange for testimony against their cohorts.
Perhaps, one of, if not the most famous of these instances occurred in 1990 when then head of the Gambino crime family, the self styled 'Teflon Don', John Gotti, was convicted of racketeering charges.
Three times previously the federal Government had brought him to trial and three times he had beaten the rap, thus the reason for the term, "teflon". The Feds, however, had the last laugh.
For the first time in the history of the mob, an underboss, Sammy "The Bull" Gravano, was persuaded to testify against his boss.
In exchange for a very lenient sentence - one which many legal analysts equate to "making a deal with the devil" - Mr. Gravano testified that he and Gotti were responsible for killing 19 men in addition to being involved in a number of other criminal activities.
It was his testimony which finally led to the conviction of Gotti, who is now serving a life sentence without the possibility of parole in a U.S. federal prison. Gravano, for his part, served less than five years in prison.
Reservations
But cases like the Gotti trial where admitted murderer Gravano could have struck such a sweetheart deal with Government lawyers in exchange for giving up an accomplice only show, critics argue, the kind of flaws associated with plea-argaining.
As one local attorney notes "This is exactly the kind of thing which has a lot of practitioners worried. Imagine striking a deal where a man who has admitted to killing 19 people is given what amounts to only a mere slap on the wrist. Is this the sort of thing we want to introduce into our justice system. The deal was between the federal prosecutors and the defence attorneys...the judge simply went along with the whole fiasco... when they talk about subject to judicial approval that is only a farce...In America, judges usually go along with whatever deal is struck between the prosecution and the defence."
Head of the police narcotics division, Carl Williams, said that, despite having a few reservations, he welcomed the idea of having plea bargaining as a crime fighting tool.
"This will assist us in our efforts to get the real kingpins in the drug trade," he said. "Also we could now direct most of our resources and energy into going after the big cases knowing fully well we have an effective weapon as a backup. Yes we do welcome having it at our disposal."
Others are warning though that the state cannot be trusted with such powers, saying that "innocent defendants could now be coerced into pleading guilty".
They also say that for plea-bargaining to work it has to go "hand in hand" with the witness protection programme, noting that "Jamaica was too small a country for persons to risk their lives turning on others."
"The state must be willing to also provide protection," one attorney said.
Noted defence attorney, Frank Phipps, in declaring that he had absolutely no interest in discussing plea bargaining, said "There are so many other important things that need addressing in the legal fraternity...why should we be bothering ourselves with discussing plea-bargaining which by the way happens on an informal basis every day in our courts."
