Dear Editor,
I hold no brief for either the Mohameds or the Guyana Government, and write, inter alia, to advise my successors in the Director of Public Prosecutions Office concerning the risks “the withdrawal and discontinuation of criminal charges” can create. The GRA’s statement does not bear the imprimatur of legally counseled representation, a grave mistake by the DPP’s Office, and the Guyana Government, conceding, that, “In light of this extradition request and Government of Guyana’s decision to proceed with the said extradition request, and taking into account all relevant legal principles, including international comity, appropriateness and fairness, these charges were withdrawn and discontinued.”
A competent defense counsel worth his salt may argue that this particular withdrawal is a dismissal, especially since it inculcates “international comity, appropriateness and fairness,” and raise the defense of double jeopardy and/or autrefois acquit, terminating the proceedings, and forever barring them from being refiled. Indeed, I can still hear Bernard DeSantos, one of my favorite defense counsels, making this same argument with consummate skill in a criminal case that barely survived dismissal decades ago.
His arguments flowed from the illuminating judgment of one of Guyana’s greatest legal minds, Chancellor Joseph O.F. Haynes, concurred with by respected Justices of Appeal Ronald Luckhoo, and Kenneth M. George (Ag.), as they then were, in the locus classicus Guyana Court of Appeal authority of Bowen v. Johnson, GY 1977 CA 11.
This tactical maneuver caused me unnecessary anxiety when a young prosecutor under my mentorship, but in my absence, spontaneously withdrew his holding charges before instituting others, and sent the case into a tailspin invoking dismissals, a move the Mohameds will most likely implement vigorously in the future.
Whereas the prosecution may then argue that a withdrawal in these circumstances was not a “dismissal on the merits” and therefore capable of resuscitation, why take that ill-advised risk when adjourning the matter sine die will enable its survival, allow the extradition to proceed, and hence avoid subjecting the Republic of Guyana to the mercy and discretion of an unpredictable Magistrate?
A fortiori, if the extradition case fails against the Mohameds, and the Guyana government seeks to reinstate its withdrawn charges in this high-profile case, a jury will most likely rail against the Government, inculcating the perception that it does not know what it is doing, and/or it is engaging in a witch-hunt, and free the Mohameds.
Further, by conceding jurisdiction to the US, which has invoked its forfeiture statutes (18 U.S.C. §§ 981, 982) in the Mohameds’ case, Guyana is concretizing a dubious Pontious Pilate policy of putting other countries above its own interests, and its entitlement to the enormous fines, penalties and forfeiture over the $191 billion allegedly involved in this case, which will guide other significant cases like these brought in the future to the detriment of the Guyana Treasury-although the fruits of these alleged crimes originated in Guyana. This concession militates against Guyana’s sovereignty, judicial independence and right to self-determination.
After all, it was Guyana’s minerals and resources that were allegedly being illegally shipped out of Guyana. A bilateral treaty to at least share in any ill-gotten assets emanating from these cases, must be expeditiously implemented to benefit the Guyanese people!
Yours truly,
Hon. Albert Baldeo
Fmr. Senior State Prosecutor, Police Legal Advisor, Magistrate (Guyana)
District Leader & Retired Attorney, NY, USA
