Friday, February 23, 2018

‘Plea bargaining legislation can help’


Anthony Carmona

Mark Fraser


Roger Gaspard

Mark Fraser

Plea bargaining legislation can greatly assist in reducing the vast backlog of cases currently burdening the judiciary.

Such legislation is nothing new in Trinidad and Tobago and has been advocated by President Anthony Carmona.

In 2010, Carmona, who previously sat as a High Court judge, said there was need to implement plea bargaining legislation to ease the heavy workload of the criminal justice system.

Carmona made the statement during a cause list hearing where seven men were charged with the murder of real estate agent Gerard Gopaul.

At the time, Carmona had called on attorneys at the bar, for both the prosecution and defence, to lobby aggressively so that there could be an ease in the backlog of cases in the courts.

During his address at the opening of the 2013/2014 Law Term, Chief Justice Ivor Archie admitted there was “absolutely no way that all of the matters before the courts can be disposed of by trials within a reasonable time frame”.

The Chief Justice described plea bargaining as an essential feature of most modern criminal justice systems “and is a rational, albeit not perfect way of weeding out those matters that can be justly disposed of without a trial”.

“It is not a soft option and the court retains the discretion over sentencing so that the prosecution and defence cannot simply cut a deal and impose it on the court. 

We have plea bargaining legislation but it has not so far been employed with any regularity.”

Accused people, through their attorneys indicate whether they seek to access the legislation. Last year fewer than 12 attorneys accessed the legislation, the Sunday Express was told. 

Fewer than ten in 2012 and 2011 made use of the legislation.

In her Saturday Express column last month, former independent senator Dana Seetahal said the fact that in less than a year Doreen Alexander, the final accused in the kidnapping and murder of her common-law husband Balram Maharaj, was convicted of hostage taking resulting in the death of Mr Maharaj and sentenced by United States courts is said to be a lesson to the authorities in T&T as to how cases may be disposed of quickly. In truth it is a testament to the effectiveness of the US plea-bargaining system. 

She said in the foreseeable future there is no way that the local justice system can accommodate criminal trials in the normal way.

“If we continue as we are going now in five years or so an accused person who is to be tried in the High Court may not obtain a trial for 15 years. Then chances are the jury will acquit with their own ingrained system of justice. This cannot be right. It is time to activate plea-bargaining and enable swifter justice,” Seetahal said.

A senior legal source credits reluctance to use plea bargaining legislation to several factors, including the length of time taken for matters to be called, witness intimidation and the low detection rate of investigating police officers.

“In fact, you have several accused who would rather spend time in jail awaiting trial than instruct their attorney to enter into talks for plea bargaining,” the legal source said.

The legal source, who has been an attorney for the past 20 years, said for plea bargaining to be effective there needed to be a “real possibility the accused is going to get convicted”.

“If you have low detection rates, low rates of successful prosecution due to witnesses being murdered and intimidated, the anxiety that the accused will be tried and given a heavy sentence is not there. So the incentive of entering into a plea bargain to get a lesser jail sentence when you know there is the risk of receiving a heavy sentence is not there.”

The legal source explained that for plea bargaining to work there needs to be a system which is sufficiently efficient and spawns “a real alarm of successful prosecution leading to a heavy sentence and I do not think people are afraid of our legal system anymore. They think I can get away with the crimes , so why plead guilty when I can get away.”

Defence attorney Keith Scotland in an interview with the Sunday Express said the Criminal Procedure (Plea Discussion and Plea Agreement) Act “can be used in circumstances where the state and the defence agree to adopt a certain course of action which will truncate the need for a long drawn out process and will also alleviate the existing problems the backlog of cases before the court”.

Scotland explained that the Act refers to a “plea agreement” as an agreement entered into (a) between the accused person and the prosecutor; or (b) between the attorney for the accused person and the prosecutor, whereby the accused person agrees to plead guilty and the prosecutor agrees to take a particular course of action”.

Such action, can consist of a recommendation being made to a Judge to impose a lighter sentence on the accused.

“But the judge does not have to agree with the recommendations,” Scotland said.

He said bearing this in mind “it takes the willingness of a client to enter into such talks” and should the client not agree to exercise this option, “then he cannot be faulted”.

“This cannot be forced upon the accused and an accused cannot be faulted if he prefers to have a trial,” Scotland said.

He described the Act as being created in order to allow the prosecution and defence to have a say in certain matters pertaining to the case. 

“The procedure is that the agreement is reached voluntarily and brought to attention of court. The court is not bound to the recommendations and the final decision rests with the court.”

For the judge to impose a lesser sentence, the Sunday Express learned, the court performs a mathematical calculation which takes into account a one-third discount for a guilty plea. 

Not wasting the court’s time with lengthy trials which can burden taxpayers and time already spent in custody is another factor. Consideration is also given to the accused being remorseful.

Former Law Association president Martin Daly SC when asked his opinion on plea bargaining told the Sunday Express last week: “For plea bargaining to be widely used and be successful, you must have a legal system that generates a fear of conviction. Without such a fear, there is no incentive to seek plea bargaining to obtain a lesser sentence. There may be a fear that successful prosecutions are not a real threat.”  

In 2011, soldier Dario Pran, through his attorneys, entered into a plea agreement with Director of Public Prosecutions Roger Gaspard.

Pran, 21, a private in the T&T Defence Force pleaded guilty to dangerous driving which resulted in the death of Sean Martin.

Martin, a father of one, who was also a private in the Defence Force, died on October 12, 2008 after being struck by a car driven by Pran.  

Pran was disqualified from obtaining and holding a driver’s permit for five years and he was also fined $15,000 and ordered to keep the peace and be of good behaviour for five years. The sentence was delivered by Justice Hayden St Clair Douglas. 

Prior to the sentencing, Martin’s mother Jennifer, who is also a State prosecutor, told the court she was of the opinion that Pran should not be sent to jail.

“I do not think he is a candidate to be sent to jail. He was 19 when the accident happened. Both sides need to get closure,” Martin said. 

Saying that “justice is about not overly punishing someone”, Martin said Pran took a good step by admitting his guilt. 

Martin further told the court that trials are stressful for everyone and as a parent, “I know it is difficult. I know it must be difficult for his parents too.”

In an interview with the Sunday Express, Gaspard said for plea bargaining to work “it has to be proposed by either side (prosecution or defence), by way of a plea discussion”.

Such discussions, the DPP said, may take place either before a person is called upon to plead or at any stage after the trial commences.

Once those discussions are fruitful, “both sides may then arrive at a plea agreement”. 

But it is not up to the attorneys to give the final say when they arrive at an agreement.

“Ultimately, the judge has the final say as to whether or not the court will act on the agreement,” Gaspard said. 

Noting that a judge or magistrate may reject a plea agreement “if, in his or her view, it is not in the interest of justice to proceed”, Gaspard said several cases were of varying strengths. 

Asked the reasons why such discussions were not made public, especially when the process has been highlighted as being transparent, Gaspard said: “The discussions can fail and come to nought. If you make the discussions public, then potential jurors and other persons who may be privy to the discussions may reasonably form a view as to the guilt or innocence in the matter.” 

The DPP said he remains surprised that more defence attorneys do not avail themselves of the opportunity to enter into plea discussions under the Act.

Gaspard said: “I do not see sufficiently compelling reasons why more attorneys do not attempt to enter into these discussions”. 

Gaspard said he hoped defence attorneys “will avail themselves of the opportunity under the Act, since it might help to expedite matters and to clear up the backlog of cases at the Magistrates’ and High Court”. 

He said apart from saving judicial time, plea bargaining provides an opportunity for victims to have a say in the criminal legal system at an early stage, thus “saving the victim from the trauma of hearing, reading or reliving the events that would have caused the person to be a victim in the first place”.

Noting that in any modern system of criminal law and criminal justice, the views of the victims and their relatives will be heard, Gaspard said while this was not a deciding factor, he viewed as important the victims/relatives’ say in the matter. 

Under the Act, Gaspard said the victim is required to give their view in open court, “unless in the interest of justice the judge or magistrate thinks otherwise”.

“I consider to be very important (the victims/relatives) in the informing of my discretion as to whether or not I accept a plea agreement and sometimes to whether or not I enter into plea discussions,” Gaspard said.