Plea bargaining legislation was touted as a critical tool which the authorities needed to garner greater success in prosecutions in this country, but since its passage almost a year ago the state is yet to conclude a single deal and there are just two cases in the pipeline, as lawyers have been wary about employing it.
It was widely believed that a plea agreement had been accepted in the Polar beer fraud case following public comments by the President, yet nothing has materialised to support this. Director of Public Prosecution (DPP) Shalimar Ali-Hack is on record as saying that only two plea agreement requests have been made and they are both currently being considered. She declined to offer any details, but confirmed the discussions are ongoing.
The Polar beer case appears off limits, at least for the DPP, who declined comment on it when questioned last month by this newspaper. However, President Bharrat Jagdeo had publicly stated last year that “one of the offenders” in the customs fraud involving Fidelity Investments would turn state’s witness, fuelling speculation as to who had 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.
The DPP was willing to speak on the plea bargaining process and what it entailed, saying she anticipates more requests will be directed to the DPP’s Chambers as attorneys become more au fait with the legislation. “Such agreements will undoubtedly expedite cases in an already overburdened judicial system,” Ali-Hack said.
Ali-Hack, who requested that this newspaper submit questions to her in writing, observed in her response that the legislation is significant because it allows for plea agreements to be entered into with accused persons in respect of any charge, summary or indictable, from simple larceny to the capital offence of murder. The law provides for any accused person or his/her attorney-at-law to enter into plea bargaining with the DPP or with a prosecutor, who has the DPP’s consent.
Ali-Hack pointed to Section 4(1) & 2(f) of the legislation, which states that only the DPP is empowered to enter into a plea bargain with an accused person or with his/her attorney. She said if, in the considered opinion of the DPP, a particular case merits entering into such an agreement, discussions are entered into between the relevant parties either before the arraignment or at any time after its commencement, but prior to sentencing.
Basically, the Criminal Procedure (Plea Bargaining and Plea Agreement) Act 2008, which was passed in October 2008, 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. Not that plea deals were new to attorneys and or the legal system prior to the passage of the new law, but the legislation has more scope and as the DPP indicated, it allows for plea deals in a number of cases. Some attorneys told this newspaper that they understand the plea bargaining process “very well,” but prefer to proceed with caution. In fact, one lawyer said the decision not to rush is guided by the state being unable to reach a single agreement which would set the trend.
Stumbling blocks
Attorney-at-law Vic Puran said he had made a formal request to the DPP for a plea bargain deal in a case involving a client but the discussions are not likely to go further. “It is not working at the moment because the mechanisms for it to be implemented successfully were not put in place by Parliament,” Puran said of the legislation.
Puran said he was not able to concretise any deal on behalf of his client because of “a key flaw” in the legislation: the absence of sentencing guidelines. He contended that plea deals ought to have an element setting out what the sentence should be for a particular offence. “The law currently allows a magistrate to disregard the deal including the penalty which is agreed,” Puran said. He said frankly that his client would prefer to enter into an agreement knowing that a certain sentence would be handed down.
He said also that other jurisdictions with plea bargaining have included sentencing guidelines, stressing this is a critical requirement. Puran said his discussions with the DPP stalled because of this particular issue and he called on Parliament to consider amending the law. According to him, sentencing guidelines are important because the person entering into the plea deal needs to know what s/he is getting for cooperating.
But Attorney General Charles Ramson SC dismissed the notion of sentencing guidelines saying “some people keep looking at what is happening in America.” He said while the guidelines create consistency, the sentence is always at the discretion of the presiding magistrate or judge. He said too that there must be a policy of understanding. Ramson went further saying some lawyers were driven by how much they could make out of the client. According to him, they prefer not to be sufficiently patient in the negotiating process.
Ali-Hack had stated that in an effort to maintain transparency of the process, a plea agreement is not binding on the court as a judge or magistrate may reject any such agreement entered into between a prosecutor and an accused person if the interest of justice so demands. She said an accused person is entitled to withdraw from the agreement before sentence or to appeal against a conviction if the agreement was entered into as a result of improper inducement, through misrepresentation as to the substance or consequence of a plea agreement or if the prosecutor breached any term of the plea agreement.
Brave step
Attorney-at-law Gino Persaud said Guyana has taken a brave step in implementing plea bargaining legislation, adding that notable common law jurisdictions such as England, Australia and Canada have demonstrated a persistent reluctance to formally embrace this concept despite the fact that certain aspects of plea bargaining exist informally within those criminal justice systems. “India only implemented this law in 2005,” he added. Persaud said the controversial concept of plea bargaining can be supported as it can be easily vilified, noting that in the US for instance the law is viewed as a resounding success with over 90% of the criminal convictions being the result of a guilty plea.
He posited that in the local context plea bargaining legislation can serve a useful purpose given the over-burdened state of the criminal courts, over-populated prisons, the backlog of criminal cases, high rates of acquittals, the torture, degrading and inhumane treatment sometimes of prisoners awaiting trial and the lengthy delays in proceeding to and completing a criminal trial. “The reality in Guyana is that we do not have the resources for every case to go to a full trial in a timely manner in keeping with the defendant’s constitutional right to a fair hearing with a reasonable time,” he stated. He pointed to a scarcity of judges and magistrates to hear criminal trials full time and complete those trials in a timely manner.
Persaud zeroed in on the scope of the legislation saying that from a public policy perspective this may be offensive since one may argue that a defendant should not be able to cop a plea bargain on a grave offence. He also touched on sentencing guidelines saying the element of judicial discretion is retained as far as imposing the sentence goes, thus preserving the constitutionality of the provisions. “Any provision which excludes the element of judicial discretion would be unconstitutional,” Persaud asserted.
