By Stanley Maduabuchi Ofoegbu Esq
As the world population increases, so does the rate of crimes. Day after day, different kinds of crimes are birthed by different persons who are criminally minded. With the increase in industrialization, urbanization, and technology coupled with the high rate of unemployment in Nigeria, the rate of crime cannot help but increase since crime can only be committed by human beings and not animals.
As a way of dealing with various crimes being perpetrated by criminals on daily basis, means are being developed to curtail not just the crime rates, but to also reduce the workload on courts to ensure that justice is served or at least, scratched to an extent. As a way of bringing justice faster in criminal jurisprudence, the plea bargain concept was developed as a tool for the criminal justice system in Nigeria.
In many parts of the world today, a plea bargain is one of the tools employed in criminal justice system. It reduces the workload of courts and helps to preserve and conserve the time and resources of the state.
Question
What then is a plea bargain and plea bargain agreement?
A plea bargain is a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for concessions by the prosecutor, usually, a more lenient sentence or the dismissal of the charges. See Garner, B, Black’s Law Dictionary,9th edition, U.S.A. Thomson Reuters,2009) p.1270. Plea bargain agreement on the other hand, is an agreement in writing signed by both the prosecutor and the defendant which is usually filed in court stating the intention of the parties to enter into a plea bargain upon the fulfillment of a certain conditions.
Question
Who are the parties in a plea bargain agreement and process?
The parties in a plea bargain agreement includes the prosecutor, the defendant and his lawyer and in some case, the victim of the crime. For the entire process, the courts forms part of the class.
INITIATION OF THE PROCESS
The plea bargain agreement may be initiated by any of the parties that is, the prosecution or the defendant. In most cases, the initiation is done by the defendant. The plea bargain is commenced by an invitation letter to the other party stating his intention to enter into a plea bargain agreement. It is synonymous with the offer and acceptance in contract. Where the offer is from the defendant, the letter is better prepared by his lawyer to the head of the prosecution team. Where for instance, the case is a matter involving the Economic and Financial Crime Commission EFCC, the letter from the lawyer is to be sent to the head of the legal unit or any other unit designated for such purpose. The letter is usually detailed stating the full name of the defendant, the offence for which the defendant is charged, the fact that the defendant was arrested and willing to offer some concession and the fact that he has or is willing to plead guilty to the offence. The said letter is appropriate and better if drafted using the law office letter head of the defendant’s lawyer. The letter is usually an application and so, it must come inform of an application to the prosecution as the case may be. The letter is also signed by the lawyer to the defendant and may be accompanied by the seal of the lawyer.
Upon the receipt of the invitation letter by the prosecution as the case may be, another letter called the TERMS AND CONDITION letter is sent. Where the initiation was made by the defendant, the terms and condition letter is usually from the prosecution upon acceptance to enter into a plea bargain discussion with the defendant and his lawyer. The letter is to contain certain information including the fact that the whole discussion will be confidential among other information. However, in some cases, the prosecution may not necessarily write formally to the defendant lawyer. The prosecutor may orally accept the offer to enter in to the plea bargain arrangement and call for discussion which is usually done face to face with the defendant and his lawyer.
Upon the conclusion of the plea bargain discussion, comes the plea bargain agreement proper
Question
What is the role of the defense lawyer in plea bargain agreements?
Usually, it is the defendant who will go into prison or suffer other kinds of punishment if the plea bargain agreement fails and the defendant is found guilty of the offence. Accordingly, it is the duty of the defense lawyer to do the following the moment the plea bargain discussion is over.
1.To teach the defendant how to plea in court upon arraignment. This is because plea bargain agreement or arrangement ought to be entered voluntarily. Where in the process of arraignment, the defendant pleads not guilty, the plea bargain agreement and all that has happened collapse immediately. The court is to discountenance the agreement as not being entered voluntarily. Hence, the defense counsel is duty-bound to teach the defendant on the appropriate plea to enable the plea bargain agreement to sail through.
The defense counsel is also duty-bound to ensure that the plea bargain agreement is captured with the exact words showing the intention and agreement of the parties. Though the agreement is to be drafted by the prosecution, the defense counsel owes his client the defendant duty to go through the agreement prepared by the prosecution before it is sent for filing by the prosecution. By so doing, the defense counsel will be able fine tune, add or request that some items or paragraph be removed to bring it with the sole intention of his client. It is highly unprofessional for the prosecution to proceed for filing of the plea bargain agreement without the defense counsel perusing the document for all parties are supposed to be on same page. 3.Both the defense and the prosecution are to ensure that the whole agreement is not ambiguous and difficult to decipher as that will amount to laboring the court. Where it is agreed that upon conviction, the court should impose fine instead of terms of imprisonment, the defense should ensure that only the provision for fine is contained in the plea bargain agreement. The exact fine should also be stated in clear letters. This is because where the agreement provides for both fine and terms of imprisonment for the court to choose from, the court may decide to exercise its discretion and send the convict to prison even when going to prison was never the intention of the parties. Also, where the prosecution fails to specify the amount to be imposed as a fine, the court may proceed to impose a fine higher than what the parties were contemplating. To avoid stressing the court, it is best for the defense and the prosecution to specify in clear terms what they agreed upon. Though the court also possesses the power to vary or deviate from the agreement, it is safer for the defense and his client to ensure that the exact intention is written down.
Upon filing of the plea bargain agreement, the defendant must ensure that he gets a copy of the filed agreement in his own file. This is because, circumstances might arise where the court after arraignment will refer the defendant to read up or explain a particular paragraph in the plea bargain agreement for clarity purposes. When this happens and the defense counsel who is usually seated on the other side of the row, will have no other option but to reach out to the prosecution for a copy just to respond to the court thereby wasting judicial time and the time of others lawyers. Issues of this nature arises when an empty agreement is filed in court as a plea bargain agreement. A plea bargain agreement is empty when all the prosecution and the defense counsel did is nothing but to state that the court shall exercise its discretion in giving the defendant a favorable sentence without providing the court with a single base or guide. Such agreement stresses the court as the court will have no other option but to call on the defense to address it on the plea bargain agreement which is supposed to be in writing and in clear terms. This is bad and may not favour the defendant as expected. Below is a personal experience weeks ago in one of the High courts in Abuja. ‘’A senior colleague called me at about 7pm in one of the past Sundays in July 2021. He requested that I stand in for him in a criminal matter coming up for arraignment the next day. According to him, it was a hearing on a plea bargain agreement and so I have only but a little role to play in the whole proceeding as the agreement had already being filed. I demanded for the case file and a copy of the plea bargain agreement to study same before going to the court so I can at least have a gist of what the whole case was all about. Surprisingly, he had no copy of the agreement and no case file for the case. Funny as it appeared, he also said that he was yet to see the draft agreement made and filed by the prosecution. I didn’t bother much as I was thinking that all things no doubt, were in order. The next day, I was already in court as early as 8 a.m so I can meet with the prosecution and get the necessary documents. To my greatest surprise, the plea bargain agreement prepared and filed by the prosecution was as good as empty. Beside the necessary provisions of the Administration of Criminal Justice Act 2015 section 270(7) to be précised, no other information was contained in the agreement. The only information therein was to the effect that the court shall exercise its discretion in sentencing of the defendant and nothing more. Upon going through the plea bargain agreement, I realized that I have a great task to perform as against my initial plan. Quickly, I summed up what I was going to tell the court and how persuasive it should be considering the fact that there is nothing before the court. Upon arraignment, the court glanced through the plea bargain agreement after the prosecution had opened its case. Immediately, the court turned its attention towards me and asked;
S.M. Ofoegbu, can you read out the content of the plea bargain agreement filed? I can’t see anything in the one before me. It has no guideline, no template, no specification as to what was agreed. I stood up and responded to my Lord saying thigs that ought to have been written down in clear terms. Despite my persuasion, the court insisted that my address ought to have been documented in clear terms. The court also suggested that the case be adjourned to enable a better filing of the agreement. Seeing that this adjournment will work hardship on my client, I prevailed on the court to proceed with the case citing reasons why the agreement appeared the way it was. Though the court eventually agreed with me, convicted and sentenced the defendant in accordance with my oral address, it was a difficult decision for the court to make. It was indeed an experience I would not like to have again’’
The point remains that plea bargain agreement is the fulcrum of the whole story and drama. If it is poorly drafted, the client suffers it the most.
Stanley Maduabuchi Ofoegbu Esq.