Innocence versus the plea deal: How justice fails

Lawyers can sometimes bully an accused into signing a deal to save time in court, writes Azarrah Abdul Karrim.

At the age of 19, Calvin Moyo left Zimbabwe in search of a better life in South Africa. His siblings were already in the country and his brother took him in.

On his arrival, Moyo didn’t have any documentation, not even a birth certificate. He technically didn’t exist in either country, but tried his best to make a life.

He started looking for jobs, and was honest about his situation.

He was given a chance to start his life over when he was hired as a part-time barista in a restaurant. He worked hard until he became a permanent employee and eventually the head barista.

Three years later, in August 2008, tragedy struck Moyo’s family when his younger sister was arrested for a robbery and taken to awaiting-trial detention.

A month went by while she attended court. Moyo got a chance to see her in September. Hers was the last case to be heard that day and she came up the stairs from the holding cell, only to be told that the case would be remanded.

Moyo asked the officers in the court if he could talk to his sister in the holding cell. They said it was fine and he descended the stairs.
Upon seeing her, Moyo embraced her, but no sooner had he let go, than he was tackled to the ground and handcuffed.

The family members who had been robbed and who were present in the courtroom had allegedly pointed him out as an accomplice to the robbery. 

Moyo repeatedly told the police officers that he didn’t understand what was going on, but they beat him up.

When he told the police he wasn’t the person they thought he was, the officers asked to his see his ID. He didn’t have one.

He was taken to Johannesburg Central Police Station and eventually to Johannesburg Prison’s awaiting-trial section.

During his first visit with the state lawyer who would represent him in court, Moyo says, he was given the opportunity to explain his case. To his surprise, however, he claims his lawyer told him the best thing he could do was plead guilty and turn state witness against his sister.

“I said, ‘why should I plead guilty? I am not involved in this in any way’,” Moyo told the Wits Justice Project.

A plea and sentencing agreement in terms of section 105A of the Criminal Procedure Act, also called a formal plea bargain, was introduced in 2001.
It stipulates that before an accused person admits or denies the charges against them in court, they can enter into negotiations with the prosecutor and consider a plea deal.

This would result in “a plea of guilty by the accused to the offence” and a “just” sentence to be imposed.

Moyo refused the offer of a plea bargain, which meant he spent the next two years in awaiting-trial detention. A judge reviewed the evidence in Moyo’s case, found there was nothing substantial and ordered him to be released.

Legal Aid SA and the National Prosecuting Authority (NPA) are heavily backlogged with cases. In its 2016/17 annual report, the department of justice and constitutional development put the number of criminal case backlogs at 30 925. Legal aid’s own case backlog reaches 25 367.

Plea bargains are a way to relieve the case load by having fewer cases go to trial and dragging on for months.

The NPA’s 2016/17 annual report states that “a total of 1 988 plea and sentence agreements in terms of section 105A were concluded during the past financial year”.

Formal vs informal plea bargains

Megan Nieuwoudt, a private legal consultant and former NPA prosecutor, explains that there are informal plea processes, in terms of section 112 of the act, which differ slightly from formal plea bargains.

These are done in court, on the day, or between cases. It is a discussion between the prosecutor and the accused’s lawyer about the merits of the case. If there is a weak defense, or no defense for the alleged crime committed, the two parties will discuss a guilty plea and just outcome. A charge sheet will be drawn up and the lawyer will have an informal discussion with the accused, saying that if the accused pleads guilty, then the lawyer can ask the magistrate for a lenient punishment.

“Informal plea processes are never written down,” says Nieuwoudt. “What will happen is that the defence will do their plea in court and the prosecution will simply not argue against what they decided together as the sentence.”

An informal plea process therefore does not involve as much paperwork and negotiation as a formal plea bargain.

“These informal plea processes are far more common,” says Nieuwoudt.
Because they are informal and not written down, no statistics are kept about how many times they are used in court.

However, Nieuwoudt admits: “There are instances when a legal aid attorney will advise a client to plead guilty when it’s not always in their best interest to do so. This can be a result of inexperience or being bullied by a prosecutor or because they are lazy. It happens, but not that often.”

Makimoni Dube was arrested for theft in 2013. He claims he explained to his lawyer what happened.

He was working at a supermarket in Johannesburg and bought groceries for himself before his shift began.

“I don’t know how I lost my slip, but when I was leaving, they searched me and found that I didn’t have the slip for the groceries.”

He was arrested. “The lawyer said I’ll be waiting on trial and every month I’ll have to come back, so if I plead guilty they’ll just give me a fine and that will be that.

“She [the lawyer] told me it will be easy,” says Dube. “I don’t know how they do it with the law and all that, but she told me I mustn’t keep on arguing with the people.

“It should have gone to trial, because I didn’t do what the lawyer said I must plead guilty to.”

Dube was given a R500 fine in the end – a minor amount for many people, but a large sum of money for someone in Dube’s circumstances.

NPA annual reports show an increase in plea deals. The NPA’s spokesperson, Luvuyo Mfaku, says this is because of an improvement in the quality of police investigations.

When the case is handed over to the NPA, the police have gathered enough evidence to incriminate an accused, so that their best option is to take a plea deal from the prosecution.

'Just plead guilty'

However, in the case of Victor Nkomo, a shoddy police investigation, mishaps and neglect resulted in Nkomo spending nearly eight years in detention awaiting trial, making him one of South Africa’s longest awaiting-trial detainees.

On June 26 2005, Nkomo was at home in Hillbrow, Johannesburg. He worked as a cashier at a casino – a job he had held for five years. A robbery had occurred at his work that same day and, two days later, the police came knocking at his door.

Nkomo claims officers assaulted him and demanded he tell them who else was involved in the robbery. He couldn’t answer them, because he says he was not there when the crime was committed.

Nkomo was arrested, charged with robbery with aggravating circumstances, hijacking and unlawful possession of firearms. He was taken to the awaiting-trial section of Johannesburg Prison.

His lawyer, Adrian D’Oliviera, instead of persuading him to plead guilty, tried several times to get him out on bail and applied to have his lengthy detention reviewed in terms of its constitutionality.

All these petitions were turned down. In the end, Nkomo was faced with a terrible dilemma. The NPA offered him a formal plea deal if he pleaded guilty to a lesser charge.

The alternative was for him to remain in detention for another three years, so the prosecutor told him, while the case carried on.

He was desperate to get out of the inhuman conditions in remand detention and he wanted to see his son grow up.

He decided to sign a plea bargain and pleaded guilty to accessory to theft. He received a five-year suspended sentence.

His time in prison has given him perspective on how state lawyers operate.
“They will always just say ‘plead guilty’, they don’t have time to defend you and you end up being sentenced for something that you haven’t done.”

In 2015, the National Registry of Exonerations in the US reported that “about 95% of felony convictions in the US (and at least as many misdemeanour convictions) are obtained by guilty pleas”.

In 2016, they reported that of the 166 exonerees on their database, 74 were first convicted on guilty pleas.

US District Judge Joseph R Goodwin has been trying to send a message to prosecutors in his court that plea deals are not necessarily the best way for justice to be served.

In an article in the Charleston Gazette-Mail, Goodwin rejected the idea of an overburdened court system as a justification for plea deals instead of court trials.

“The bright light of the jury trial deters crime, enhances respect for the law, educates the public and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office,” he wrote.

Nkomo never received a fair trial. The only evidence against him was a statement from a police officer saying an unidentified person was found with R74 000 and that this person claimed it belonged to Nkomo.

The person was never identified and never made a statement to police. Nearly seven years down the line, the judge still hadn’t assessed this flimsy evidence.

“Sometimes I’d stand in court for three minutes after four months remanded in prison and they would just postpone again,” Nkomo says.

Legal aid’s Gauteng regional operations executive, Wilna Lambley, comments: “When no valid defence is apparent from the client’s version, it is the duty of the legal practitioner to advise the client to plead guilty. It is unethical for a legal practitioner to present a fabricated version of events to the court, or to advise his client to do so. A legal practitioner may, however, not force his client to plead guilty and must follow the client’s instructions.”
The fact that there are many awaiting-trial detainees in South Africa, currently 43 646, increases pressure on Legal Aid SA.

According to their website, they employ about 600 candidate attorneys and 1 700 practicing attorneys who help and supervise candidate attorneys. This means there are 38 awaiting-trial detainees for every candidate attorney, not including any other cases an attorney might be working on.
However, resorting to plea agreements most of the time could do more harm than good.

Azarrah is a journalist with the Wits Justice Project

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