Retired Public Defender wants Sentence Reduction initiative extended to all parishes, and held monthly

Monday, January 22, 2018

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RETIRED Public Defender Earl Witter wants the sentence reduction initiative to be extended to every parish and held once a month.

Witter, in an exclusive interview with the Jamaica Observer while on a break from a high-profile trial in the Turks and Caicos Islands, lauded the recently introduced initiative, and insisted that for it to be even more compelling, there needs to be more frequent activity.

“The idea of Sentence Reduction Days as an initiative for helping to reduce the backlog of criminal cases/trials is simply brilliant,” Witter stated. “In fact, I wish it were my idea in the first place because its capacity to work the advantages of encouraging judicial confessions which is what the guilty plea amounts to, and the saving of time and expense in the conduct of criminal trials is one of the outcomes that is desirable. I support it enthusiastically. We need sentence reduction days in every parish. What we need is not the withdrawal of the initiative, but the establishment of more and more of these special sentencing days.”

Sentence Reduction Day was implemented last October by the Criminal Case Management Steering Committee, with the full support of the Ministry of Justice, for accused persons with untried matters in Jamaica's courts for long periods, some for several years, to utilise. The concept, those who introduced it argued, would ensure that the courts' time was not wasted and the cost of trials would be saved.

Amendments were made to the Criminal Justice (Administration) Act to allow for accused persons to benefit from discounts on their sentences by up to 50 per cent if they enter straight guilty pleas or enter negotiated plea arrangements.

On the historic Sentence Reduction Day 40 accused persons with matters in the Gun Court, the Kingston and St Andrew Home Circuit Court and the St Catherine Home Circuit Court took advantage of the initiative by entering guilty pleas.

Director of Public Prosecutions Paula Llewellyn has promised to have sentence reduction days on a phased basis during this year.

Critics of the system have objected strongly to the initiative. They have, among other things, suggested that some of those who would have committed heinous crimes could be let off without paying the full price for what they did.

The case of the murder of Kerry Ann Wilson, the pregnant ex-girlfriend of construction worker Phillip Brown at Crystal Towers on Old Hope Road, St Andrew, was one such put to Witter.

Brown was charged with murder in the highly publicised case after investigators heard from a security guard that he had seen a man dumping a body wrapped in a tarpaulin in the gully when the man dropped the body and ran.

Brown, in his four-page caution statement, said that he asked his ex-girlfriend to rekindle the relationship, but she told him that she would think about it, which made him angry. He used a hammer to hit her in the head and tried to dump the body when the guard arrived at the scene of the crime.

Witter, nonetheless, said that the judge in such matters is usually well positioned to do what is appropriate.

“The notion of a heinous crime requires definition. Most people, the victim in particular, would regard any offence committed against him or her as heinous. Let's use that infamous case (Crystal Towers)… what the case demonstrates is the wisdom of leaving the matter of sentencing up to the exercise of the discretion of the trial judge, who is peculiarly well placed to determine punishment,” Witter argued.

“The sentencing judge would have the advantage of a social enquiry report, usually that will expose the antecedents of the convict, by which he would become acquainted with his past and design a regime of punishment that would not only fit the crime but would be suited to the particular circumstances of the accused who has freshly become a convict by his plea.

“It is no part of the judge's duty to be awarding sentences which will win popular acclaim. Rolled up in that is the probability that some injustice would be meted out to victim and convict alike. There are no guarantees, as is popularly supposed, about the extent of the judge's mercy. All this initiative seeks to do is to encourage pleas of guilty, that is, not coerced, unlike confessions, which are said to have resulted from the application of pressure or any other kind of device by the police.

“When a man voluntary confesses his guilt to the court and, so to speak, throws himself upon the mercy of the court, he is entitled to it, because there really is no justice without mercy, and it is important to realise that if the judge were to yield to popular opinion in awarding the sentences, he would, in a sense, be yielding to the judgement of the multitude, which has never served the administration of justice well, the history shows,” Witter said.

Among the critics of sentence reduction is retired judge of the Court of Appeal Clarence “Billy” Walker, who in a letter to the editor of the Observer last December, described the move to implement the initiative as “a diabolic and misguided concept, which smacks of the distasteful commercialisation of the justice system.

“What is this that I have lived to see happen?” Walker wrote. “Have we in Jamaica got to the stage where a man can intentionally bludgeon his pregnant babymother (albeit pregnant by another man) to death using a hammer immediately after having had sexual intercourse with her; then afterwards wrap her dead body in a tarpaulin and attempt to dispose of her corpse by throwing it into a gully, in the course of which he is caught 'in flagrante delicto' [in the very act]?

“Then having been properly charged for the crime of murder, he patiently waits for the advent of a 'discount day' on which he pleads guilty to a lesser crime of manslaughter on the basis of legal provocation. What legal provocation? And, in exchange for 'payment' of that plea he receives a benign sentence of 15 years' imprisonment at hard labour, with a possibility of parole after being imprisoned for a period of 10 years… all of this in a country which is supposed to be governed by the rule of law.

“I wholeheartedly disagree with this concept of discounted days. In my opinion, it is a diabolical, misguided concept, which smacks of the distasteful commercialisation of our hallowed, sacrosanct justice system. It should be scrapped forthwith. Whose idea was it in the first place? Heaven help us now,” Walker wrote.

Witter though, suggested that Justice Walker should have outlined, in more detailed form, the specifics of what was wrong with the initiative.

“I would have liked to see some of His Lordship's reasons for describing the initiative as diabolical. I was disappointed that he gave no such reasons … that he merely fulminated. Until such time we don't really know what was the basis of his thinking. I certainly hope that so far from this whole initiative being withdrawn forthwith, it should be extended to every parish and there ought to be one such day every month, because the potential for saving judicial time and public expense is incalculable,” Witter said.

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