Formal plea deal system for criminal informants considered

A screen grab from CCTV video shows the 2012 armed robbery at Cayman National Bank. The case of an informant who was involved in the robbery and gave evidence against his accomplices is cited in the Law Reform Commission’s report on legislation governing plea deals.

When bank robber Marlon Dillon agreed to turn police informant after being caught hiding under a shed at his home with $100,000 in cash nearby, his evidence helped solve a number of serious cases.

Dillon’s testimony was key to securing convictions against his accomplices in the robbery of Cayman National Bank, another armed raid on WestStar television center and in a separate gang murder case.

But the circumstancesof his cooperation with police and prosecutors led to his evidence being challenged and an application for the trial to be dismissed. Dillon, according to his own evidence, was left feeling disenchanted and betrayed over promises he believed had not been kept.

Now the Cayman Islands Law Reform Commission is considering options for a more formal plea deal system that would regulate how such agreements are negotiated and how cooperating criminals are rewarded.

It is seeking public input on whether Cayman should adopt a U.S.-style “plea bargain” system or the more limited U.K.-style approach that would essentially put the current informal system on a more structured legal footing.

Citing the Dillon case, the commission notes in a discussion paper, “If there had been a clear and transparent system of dealing with accomplice evidence, the process of obtaining evidence in this case may not have led to an application which could have seen the dismissal of charges against all of the defendants.”

Currently, prosecutors can and do work with criminals who plead guilty and offer testimony against their accomplices or help secure convictions in other cases. This is done through an informal Common Law process known as “Queen’s Evidence” and no explicit promises can be made.

“The existing practice is that should an accomplice inquire of the police as to any benefit if assistance is provided, the police advise that no agreements or promises can be made and that it is a matter for the courts on the sentencing of an accomplice whether or not to take into account any assistance provided to the Crown,” according to the discussion paper.

In the Dillon case, cited in the report, he received a three-year sentence for his part in the robbery, while the others in the gang received sentences of between 11 and 14 years. The judge cited his cooperation as key to the reduced sentence.

More recently, the commission notes, Justin Ebanks, who was facing a mandatory minimum sentence of seven years after being found in possession of a loaded semiautomatic pistol was jailed for 18 months after giving eyewitness evidence in another murder trial.

Highlighting a rise in gun crime and the reluctance of fearful witnesses to give evidence against violent criminals, the Commission suggests that a more formal system of obtaining evidence from criminals against their co-accused may lead to more prosecutions in serious cases. It suggests the current informal system relies on the discretion of prosecutors and sentencing judges.

“It has been argued that such broad discretion can lead to inconsistent decisions and abuses. While there is no evidence of such inconsistency in this jurisdiction, there is a need for more visibility and accountability in particular from the first stage at which an accomplice offers to provide assistance, as well as through to the conclusion of any given case. The central challenge therefore is providing for a more formal system that would address greater transparency in the process.”

The U.K. has now formalized the process of Queen’s Evidence through the Serious Organized Crime and Police Act 2005, which provides legal authority for sentence reductions for defendants who plead guilty and cooperate with the prosecution of others.

The Cayman Islands Law Reform Commission has produced draft legislation dealing with immunity agreements and reduced sentences for cooperating witnesses, based on the U.K. law, for discussion. It also highlighted other possible options, including the U.S. plea bargaining system and the Jamaican approach, which appears to be a hybrid of the U.K. and U.S. systems.

Seeking input from lawyers and the judiciary, the commission asks, “How often is the Common Law practice of Queen’s Evidence used, how effective is it and can it be enhanced by statutory codification? In the alternative, should we follow the USA plea deals system, which not only facilitates the gathering of evidence from accomplices but shortens the trial process?”

The discussion paper and bill are published at www.lawreformcommission.gov.ky. Comments and submissions can be made to Jose Griffith, acting director of the commission, at [email protected]

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