Earlier Than Immediately

One of my greatest regrets over the five years I’ve been coming to Uganda is that I haven’t visited the US Embassy in Kampala more often to keep them updated on what Pepperdine is doing in Uganda.  During my first trip, in January of 2010, our group met with Ambassador Jerry Lanier shortly after we arrived.  I will always remember what he said: “During your stay in Uganda, you will learn more about the United States than you will about Uganda.”

He was right.

It is easy to take for granted all that we have in the United States that Uganda lacks – reliable electricity, easy access to clean water, navigable roads, consistent internet and phone signals, a responsive public justice system, etc.  It is only when one experiences their absence does one truly appreciate their presence.

During my last trip to Uganda in April of this year – my sixteenth – I visited the Embassy for only the second time in five years.  This past Monday, I returned to the Embassy for the third time and brought with me the presenters for the National Plea Bargaining Conference – judges Beverly Reid O’Connell and Tricia Bigelow, public defenders Melissa Mertens and Lisa Brackelmanns, federal prosecutor John Cotton Richmond, former prosecutors Alan Jackson and Will Lathrop, OU law professor Michael Scaperlanda, American lawyer practicing in Zambia Sara Larios, and Global Justice Program Coordinator Jenna Anderson.

Our counterparts for this meeting at the Embassy were two United States political officers and a Makerere University Law Professor who provides valuable local insight and guidance for the Embassy.  Our meeting lasted about 90 minutes and mostly involved us briefing them about what Pepperdine has been doing with and in Uganda for the past eight years, and one of the Embassy’s political officers expressing his frustration and skepticism about the prospects of immediate changes in the political/judicial structure of the country due to endemic corruption.  (Not two days later, the President’s two main opponents in the upcoming February, 2016 election, were both arrested the same day on their way to separate political rallies under the Public Order Management Act, which one of these opponents championed and employed while recently serving as the Prime Minister of Uganda).  I, of course, understood the political officer’s perspective, but have a decidedly more favorable view of the future of the judiciary.

At the end of the meeting, the Embassy representatives offered to put me in touch with their colleagues at the USAID portion of the Embassy, which is the arm that funds various projects aimed at assisting Uganda in improving its economy, health, and justice system, among other sectors.

Our team spent the next few hours on Monday finalizing preparation for the next day’s conference, and then we all (including our students, but less a portion of our prison project group who flew home on Sunday evening) attended a dinner at our hotel hosted by the Principal Judge of Uganda.

The national conference kicked off the next morning only about forty minutes late, which is early for Uganda conferences.  The Director of Public Prosecutions, Mike Chibita, opened the conference with a speech about how and why plea bargaining will assist in delivering the rule of law to Uganda, and how important Pepperdine’s partnership is to this enterprise.  He was followed by Matt Bunt from the US Embassy, then Principal Judge Bamwine.

Conference just before kick off

Principal Judge Bamwine in his opening remarks

Finally, newly appointed Chief Justice Bart Katureebe officially opened the conference.  He thanked those in attendance, gave his strong blessing to the rapid and wide-spread adoption of plea bargaining, and pledged to deepen and expand the relationship between the Judiciary and Pepperdine through his visit to Malibu this fall.

After nearly a year of planning, it was go time.

I took the microphone, provided a brief history of Pepperdine’s relationship with Uganda to the 150+ judges, prosecutors, defense lawyers, and other government officials in attendance, and then introduced the team.  I gave an overview of the conference itinerary and then ceded the microphone to Melissa Mertens, who acted as the narrator for each scene of the seven-part re-enactment of the plea bargaining process, covering arrest through sentencing.

After each scene, I would retake the microphone and walk the crowd through what they observed and what they should learn from each scene.  I did this by calling on select members of our team to explain what had just happened and why, and then I would try to put this into the context of the Ugandan criminal justice system with which I have now had substantial experience.  Before we transitioned to the next scene, Lisa Brackelmanns would explain how and why things would be different if the defendant were a juvenile.

Scene one of our simulation opened in the prosecutor’s office with the police officer presenting his report to the prosecutor (our hypothetical case was based upon one we encountered the prior week and involved the killing of one neighbor by another over a land boundary dispute), allowing the prosecutor to decide what charges to file.  IJM Gulu Field Office Director, Will Lathrop, played the role of the police officer and John Richmond played the prosecutor.  This report was completed within 48 hours of arrest so the suspect could be arraigned within that time period.  In Uganda, police reports are usually completed several weeks or months after arrest while the suspect waits in jail.

Scene two began in the courtroom when the defendant was informed of the charges against him and assigned a lawyer to represent him.  Judge O’Connell played the role of the judge – decked out in the Ugandan wig and red robe – John Richmond continued his role as prosecutor, Alan Jackson played the defense lawyer, and one of our students (Costa) played the defendant.  In Uganda, the defendant is not provided a lawyer until just before trial (up to five years after arrest), rather than during the initial court appearance within 48 hours of arrest, as is the case in our public defender system.  We must have encouraged them to adopt such a system on twenty different occasions during the conference.  Indeed, there is a bill that has been languishing in Parliament for three years that would do just that.

Scene three took place back in the prison where the defense lawyer met with the defendant to explain the evidence against the defendant that the prosecution provided to the defense lawyer within a few days of arrest.  During this scene, the defense lawyer also presented the defendant with the prosecution’s plea offer in this case (18 years on the hypothetical murder charge).  In Uganda, the defendant is entitled to the evidence against him, but there is no specificity of when and what type of evidence.  And since the defendant doesn’t get a lawyer until just before trial, these “disclosures” rarely occur until then because there is no one to whom the evidence could be given.  Likewise, because the defendant rarely has a lawyer, the prosecution can’t begin plea negotiations because there is no one to bargain with.

Scene four occurred in the prosecutor’s office where the defense lawyer explained to the prosecution the weaknesses in its case, raised the defenses that would be asserted at trial, and offered (in accordance with the wishes of his client) a plea offer of ten years on charges of manslaughter, reduced from murder.  After a back and forth, the prosecution agreed to the manslaughter, but only if the sentence term was twelve years.

Scene five took place back at the prison where the defense lawyer talked through the prosecution’s counter to the defendant’s counter-offer with the defendant and explained that the two years the defendant had been “on remand” would be credited year for year, thus reducing the 12 years to 10 more, if the deal was accepted.  The defendant accepted the offer.

In scene six, the lawyers met in the judge’s chambers and informed her they had reached a plea agreement and what it entailed.  The judge asked a few broad questions about the case, and then told the counsel to go out into open court where the agreement would be memorialized on the record.

Finally, the setting for the scene seven was in open court where, before taking the plea and entering the sentence, the judge invited the surviving spouse in our murder scenario to present a victim impact statement.  The role of the grieving widow was played by our own Justice Bigelow who, while dressed in a traditional Ugandan dress and head scarf, provided a moving and entertaining monologue about how much she misses her husband, and how much the defendant should pay for his crime.

Justice Bigelow providing Oscar-worthy performance as Judge O’Connell looks on

Judge O’Connell thanked her for her testimony, took the defendant’s guilty plea, and then sentenced him to the twelve years (minus the two served) that had been agreed upon.

Over the next hour, I moderated a lively Q and A session.

Gettin’ worked up

After lunch, we divided the attendees into small groups, each consisting of a High Court Judge, a prosecutor, and a few other lawyers to represent the accused.  We assigned them a fact pattern based upon a case we had encountered the week before and turned them loose in various parts of the hotel to see if they could negotiate a deal and present it to their assigned judge.  They got so into the exercise that it took us an extra half hour to get them to come out of their groups to report their results.

We closed with a little more Q and A, and an excellent speech by Justice Kiryabwire, who is the Ugandan liaison to the Pepperdine/Uganda Memorandum of Understanding.  In preparing for his speech, he had pulled from his files the original memorandum written by our two students (Greer Illingworth and Micheline Zamora) urging Uganda to consider plea bargaining.  Providentially, it had been written exactly seven years earlier, to the day – July 7, 2008.

Before we departed, our Ugandan friends presented us with some gifts, including Uganda Cranes soccer jerseys.  More about the conference was reported locally here.

Later that night, we had dinner with a group of judges and other government officials who have visited Pepperdine – a number that has now swelled to nearly thirty.

Justice Bigelow and Judge O’Connell with Former CJ Odoki and Justice K at post-conference dinner

The next morning, the film crew interviewed the Solicitor General of Uganda, and the Commissioner General of Prisons.

“Earlier than Immediately”

In the latter’s interview, he stressed that plea bargaining needs to be fully implemented throughout the country right away – in his words, this needs to happen “earlier than immediately.”

In the afternoon, the conference team had one last meeting with the top brass at the prosecutor’s office to answer follow-up questions after the conference.  That night, everyone except me and the film crew flew home.  We still had three more days of filming to do in order to wrap up the documentary.

What we captured over the next three days far exceeded our hopes.