Saturday, December 25, 2010

The Secretive Plea Bargain

The report about the plea bargain struck by General Garcia with his prosecutors must have shaken the officials of the Office of the Ombudsman. When the gag order came from the Sandiganbayan, there was obvious jubilation among the three officials of the Ombudsman’s office who announced the gag in a press conference. Why the jubilation?

The little that has filtered out about the bargain has created shockwaves in the Metro Manila community. The President was furious. The military establishment expressed extreme disappointment. Former Ombudsman Marcelo declared it illegal. If the filtered report was meant to be a trial balloon, the prosecutors should get the message if they are not dense

But what is causing the commotion. From the little that has come out in media there does seem to be legitimate cause for people to be infuriated. Garcia was charged with the crime of plunder for illegally amassing some three hundred million pesos. The minimum amount for the crime of plunder is only fifty million. It seems that Garcia will be allowed to escape the penalty for plunder by pleading guilty, not to plunder, but to indirect bribery in the amount of about one-sixth of the plunder charge against him.

The reasons? We do not yet know. But we should know the details of the arrangement because constitutionally the people have the right to demand information about matters of public concern. This is very much a matter of public concern and the Sandiganbayan should life its gag order.

But what is a plea bargain and is it legal? It is an arrangement entered into between the accused and the prosecution for the accused to plead guilty to a lesser offense than charged. An interesting if humorous early example of plea bargain is the case of Galileo who is reported to have gotten “house arrest from the Inquisition in exchange for his reciting penitential psalms weekly and recanting Copernican heresies.” It must have been some kind of sacramental penance.

Our Rules of Court allow plea bargain. Rule 116 says: “The accused, with the consent of the offended party and the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court.”

Two things are worth noting. First, the consent of the offended party is needed. You might say that the prosecution represents the offended party in a criminal case, that is, the people. But the President, who has constitutional control over the judgment of prosecutors, has already expressed his displeasure. That should be enough to disallow the bargain before it even reaches the Sandiganbayan. Moreover, as I see it, the most closely offended by the crime is the military establishment, and the military is in no mood to give its consent.

Second, approval by the Sandiganbayan is needed. It is not clear what the standards for approval or disapproval are. We will be watching how the Sandiganbayan will exercise its discretion on the subject.

Incidentally, I do not know how often plea bargain is used in Philippine prosecutions. I can see that, at least for small cases, it can be an instrument for declogging our courts. But the Garcia case is no small matter. Although the Rules of Court allow plea bargaining, the Garcia case is certainly the most controversial one to attract public attention. The Sandiganbayan will be on the dock on this subject.

Plea bargain as practiced now seems to have originated from the United States where it is widely used and is widely written about. It is said that roughly 90% of criminal cases in the US end in a bargained conviction for a lower offense. Those who defend the practice say that the “efficiency gained by plea bargains outweighs their evils.”

A leading case on plea bargaining is Bordenkircher v Hayes. Snatches from the decision written by Justice Stewart give us an idea why the US Supreme Court has consistently upheld the constitutionality of plea bargain. "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." “Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.”

Justice Stewart’s opinion, however, was basically a rejection of the defendant’s claim that plea bargaining was characterized by vindictiveness. The claim was that the threat of prosecution for a more serious offense was vindictive and therefore violative of due process. In Garcia’s situation, however, it is hard to see vindictiveness as motivation for the invitation to plead to a lesser offense.

27 December 2010

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