Some members of the public have called for the head of the Attorney-General, Honourable Godfred Dame, following his alleged leaked phone conversation with Richard Jakpa, the third accused in the ongoing ambulance trial.
The case involves the Minority Leader, Dr Cassiel Ato Forson, Mr. Richard Japka and one other. The Attorney-General has been publicly condemned for allegedly seeking to induce one of the accused persons, Richard Japka, to testify against the first accused person, Dr. Cassiel Ato Forson.
While some members of the public have charged the Attorney-General with professional misconduct, others have called for his immediate removal from office. Did the Attorney-General go wrong professionally or in law by seeking the cooperation of the third accused against Dr. Cassiel Ato Forson? This article is my contribution to the debate.
The Attorney-General’s alleged secret engagement with the third accused seems to have shocked most Ghanaians because our traditional understanding of criminal trial is that it is always an adversarial contest between the Republic, represented by the Attorney-General, on the one side, and the accused on the other side.
In a typical adversarial criminal trial, the Attorney-General and the accused may be said to be ‘opponents’ who are not supposed to engage in conversations and deals, secret or open.
However, with the introduction of plea bargaining into our law, criminal trial has greatly shed its adversarialism. Today, the Attorney-General and an accused person may eat together from the same bowl, sit together on the same couch, board one vehicle, or chat with each other, all in an attempt to strike a plea deal.
There is nothing wrong with the Attorney-General having a private conversation with one accused person and seeking his cooperation to prosecute another accused person.
One of plea bargaining’s greatest advantages is that in syndicated crimes, one accused may enter into an agreement to plead guilty in exchange for a ‘reward’ so that he will assist the Attorney-General to prosecute other accused persons.
This often happens when the Attorney-General is of the view that more concrete evidence may be obtained from one accused to bolster or augment the case of the prosecution against the ringleader or kingpin in a group crime.
As a practical matter, when an accused agrees to plead guilty for some reward and cooperate with the prosecution against another accused person, he immediately becomes prosecution witness.
Once an accused agrees to cooperate with the prosecution, he must assist the case of the prosecution to succeed. This kind of cooperation is common in plea negotiations.
For instance, under section 71 of the Office of the Special Prosecutor Act, 2017 (Act 959), the willingness of the accused to cooperate with the prosecution for the arrest and prosecution of other persons involved in corruption or corruption-related offence, is a factor to consider in determining the acceptability of a plea offer.
The use of prosecutorial inducements, threats, promises and coercion is an integral part of plea bargaining. The law permits the Attorney-General to threaten harsh punishment or promise lenient punishment or even promise absolute discharge, to induce an accused to plead guilty.
A prosecutor may adopt strategic overcharging to induce an accused to enter into a plea agreement. Strategic overcharging occurs when the prosecutor deliberately and strategically overcharges the accused person with the view that he will later drop some of the charges if the accused accepts to plead guilty to one or some of the charge(s).
Many people have argued, albeit wrongly, that what transpired between the Attorney-General and Richard Jakpa was not an attempt to initiate plea negotiation. It must be stressed that before the parties may notify the court of their intention to initiate plea negotiations, they must have engaged in some private conversations outside the court.
As a practical matter, the Attorney-General and the accused must have private talks to reach a tentative agreement to strike a plea deal before they officially notify the court. Plea bargaining is a consensual arrangement between the Attorney-General and the accused, and each side has the right to make any offer at all.
Plea bargaining can hardly be initiated without the Attorney-General and the accused engaging in some informal exchanges or conversations behind closed doors. There is therefore nothing wrong with the Attorney-General secretly talking with Richard Japka and seeking his cooperation to prosecute Dr. Cassiel Ato Forson.
Once Richard Jakpa was not represented by counsel at the time the leaked tape was allegedly made, the Attorney-General was right in communicating with him directly.
Even though the Attorney-General is a lawyer, his office is a creature of the Constitution (vide article 88 of the Constitution), and therefore not subject to the jurisdiction of the General Legal Council. The Attorney-General derives his authority and power directly from the Constitution. The Attorney-General and state attorneys do not require solicitors’ licence to practice law. Therefore, no case can be made against the Attorney-General before the General Legal Council.
Clearly, the ongoing ambulance trial is a syndicated crime, and Dr. Cassiel Ato Forson is obviously the alleged kingpin of the crime. It is not wrong for the Attorney-General to target Dr. Cassiel Ato Forson.
It is also not wrong for the Attorney-General to induce the cooperation of the other accused persons against Dr. Cassiel Ato Forson. Contrary to what some commentators say, the Attorney-General has no legal obligation to explain why he initially rejected Jakpa’s plea offer. The steps an decisions taken by the Attorney-General in this case may irritate the public, but they are neither illegal nor unprofessional. As Justice Kennedy observed in Lafler v. Cooper 131 S. Ct. 856 (2011), at p.1388, the reality is “that criminal justice today is for the most part a system of pleas, not a system of trials.”
As it may be recalled, the decision of Atto Essien in 2022 to enter into plea bargaining with the Attorney-General in the Capital Bank case attracted the same level of public outcry and condemnation as in this ambulance case.
The reaction of the public amply shows that many people do not understand the concept and practice of plea bargaining. Like it or not, plea bargaining is part of our law, and we must take it as we find it.
Maybe we have created a monster that is hunting us. The Attorney-General has the right to use every prosecutorial endeavour to obtain assistance from the other accused person to prosecute Dr. Cassiel Ato Forson, even if that means dropping all the charges against the other accused persons.
Source: Daniel Korang, Adom Legal Consult, Sunyani
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