– Trotman points to need for transparency
Plea bargains are subject to the approval of the court and are not deals struck before a guilty plea is accepted, attorney-at-law Raphael Trotman has said, while pointing to the need for equality and transparency as the process is implemented here.
Saying that he found a recent disclosure on a plea deal in the Polar beer scam “very disturbing” because of how it was handled, Trotman, who is also leader of the AFC, called for an impartial and open approach to the legislation if it is to be implemented fairly, and accepted as an important aspect of the judicial system.
In a recent interview on the legislation, Trotman said the consent of the court is critical to the plea agreement being accepted and questioned how any deal could have been struck outside the defined court procedure as set out in the recently enacted law.
The Criminal Procedure (Plea Bargaining and Plea Agreement) Act 2008, which was passed last October, seeks to reward a person who has entered into a plea agreement and is cooperating with law enforcement authorities or whose cooperation is beneficial to the administration of criminal justice.
President Bharrat Jagdeo publicly declared last week that, “one of the offenders” in the Customs fraud involving Fidelity Investments will turn state’s witness, fuelling speculation as to who has agreed to cooperate with the state in return for a lighter penalty, as well as triggering concerns as to how the plea agreement was reached.
“ …as horrible as they are, as criminal as they are, sometimes you have to make a deal with them to get prosecutions… and this is in the public domain so it is not infringing on the court’s jurisdiction,” the President disclosed during the opening of the 24th Conference of the Association of Caribbean Commissioners of Police (ACCP).
But Trotman was critical of the reported plea deal, positing that the law is not in place to shelter the major perpetrators in the scandal and prosecute those involved at the bottom. He said the agreement must be reached within the provisions of the law, and that it must be implemented in a manner that demonstrates that justice has been served.
He questioned what information the accused person has to offer to the state that sets him or her apart from the others implicated in the scam, raising the issue of the scope of the evidence gathered to date that informed the decision to accept the plea deal.
“Who this person and what it is [he/she is] offering? These are questions that can be safely raised and which the public ought to know because such is the manner in which trials are conducted,” Trotman asserted.
He also stressed the need for an open trial, adding that whether a plea bargain has been reached or not, the court and by extension the public must be aware.
The Plea Bargaining Act makes arrangements for the Director of Public Prosecutions (DPP) or any prosecutor, police prosecutor or attorney authorized by the DPP and the accused to enter into a plea agreement.
Specifically, Section 10 of the Act set outs how the plea agreement is reached and points to the prosecutor informing the court, in chambers, in the presence of the attorney-at-law for the accused or the accused of firstly, the substance of, and reasons for, the plea agreement; and whether any previous plea agreement has been disclosed to another judge or magistrate in connection with the same matter, and if so, the substance of that agreement.
While section 10 (2) states that the judge or magistrate shall, in open court, before accepting a plea agreement determine to his satisfaction that no improper inducement was made to the accused person to enter into the agreement; the accused person understands the nature, substance and consequences of the agreement; and that the offence to which the agreement relates adequately reflects the gravity of the provable conduct of the accused, unless in exceptional circumstances the agreement is justifiable in terms of the benefits that may accrue to the administration of justice, the protection of society or the protection of the accused.
Trotman emphasized that accused person must acknowledge guilt prior to entering a plea bargaining agreement with the state. He reiterated that the consent of the court is critical to any plea deal being struck while noting that there is no information to support whether this happened in the reported case. He said, too, that the importance of the legislation can be eroded if the process is abused and used to “protect some”.
Prior to his departure for New York last week the President told reporters at a press briefing at the Cheddi Jagan International Airport, Timehri that the legislation which was adopted by his administration to deal with criminal activities and corruption and will likely lead to more prosecutions.
He was quoted by the Office of the President as saying that the plea bargaining legislation is a tool that the police and the DPP really need to have, to garner greater success in prosecutions, saying he is pleased that, “we have passed that law and we may get more prosecutions now, not just on this matter, but in other matters.”
The Plea Bargaining Act was unanimously passed in the National Assembly last October, and Home Affairs Minister Clement Rohee had stated that the function of the court would not be usurped at any stage of the process.
