Liberia: Cummings’s Lawyers, Prosecutors Clash over Evidence

  Alexander B. Cummings, the political leader of the Alternative National Congress and co-accused has interposed no objection to the State's for Nolle Prosequi.  

Lawyers for Alexander Cummings and Solicitor General Seymah Cephus have clashed over claims that the prosecution team, headed by the latter, is engaged in “misconduct.”

The state, via Solicitor General Seymah Cephus, while countering the defense lawyer’s allegation, described it as a deliberate misinformation campaign that is “absolutely misguided and utterly appalling.”

“The allegation of prosecutorial misconduct as alleged by the defense team is shameful and very unfortunate for the defense team to make such an application on the records of the court,” the state said in a release laying bare its response to Cummings’ lawyer’s allegation of prosecutorial misconduct. 

The defense lawyer’s claim, according to the state, is a clear manifestation that the defense team led by Cllr. Abraham Sillah has no evidence to counter what the prosecution is producing in court, and is instead depending on what “it feels and thinks the prosecution has allegedly excluded, although without any proof, as evidence to exonerate their clients.”

Earlier, the defense lawyer in a formal complaint to Stipendiary Magistrate Jomah Jallah of the Monrovia City Court accused prosecutors of withholding evidence that would exonerate their client of the charge of forgery and criminal conspiracy case, regarding the alleged tampering of the defunct Collaborating Political Parties framework agreement.

“The intentional omission of any piece of evidence that speaks to the innocence of the accused amounts to misconduct on the part of the prosecution. In all criminal matters, the State/Prosecution is duty-bound or has a legal obligation to submit to the accused all the species of evidence the State has in its possession related to the allegations, and this includes evidence of inculpatory and exculpatory nature,” the defense lawyer said in a press release.

Cummings is being sued by the Liberia government and the All Liberia Party of Benoni Urey, for forgery and criminal conspiracy, regarding the alleged tampering of the CPP framework agreement.

His lawyers then claimed that during cross-examination of Theodore Momo, the chairman of ALP, they discovered that the state prosecutors, aided by Urey, criminally extracted several pieces of evidence that exonerate and established the innocence of their client and his co-defendants.

The pieces of evidence, according to the lawyers, were extracted from WhatsApp messages from the now-defunct CPP National Advisory Committee (NAC) chatroom. They added that the “state’s obligation is constitutional under the due process clause. Any attempt by the prosecution to intentionally omit any piece of evidence that is exculpatory or that seeks to exonerate the accused amounts to material misconduct or ethical transgression.

“The defense lawyers have therefore requested that magistrate Jallah launches a full-scale investigation, and bring sanctions on Cllr. Cephus (and team) where appropriate. In addition, the defense lawyers have requested that the judge requires Cllr. Cephus and prosecution lawyer to formally submit the omitted pages from the CPP NAC chartroom, favorable to and capable of exonerating Cummings and co-defendants,” Cummings’ legal team added.

The dispute between Cummings' defense team and prosecution comes at a time when the power of prosecutors and the potential for abuse of such power is entrenched in the justice system.

According to legal experts, prosecutorial misconduct comes in many forms, and in Liberia,  prosecutors exercise substantial control over most phases of a criminal case – from participating in the investigation to deciding what charges to seek, to recommending a sentence after conviction – and prosecutorial misconduct can infect any stage of this process.

Prosecutorial misconduct occurs when the prosecuting attorney does not act within the legal or professional ethical standards that are in place for them.

Actions that are considered as labeled prosecutorial misconduct includes prosecutors bringing criminal charges in bad faith without realistic hope of winning a conviction – for example, to punish a political rival, or to retaliate against someone.

It also includes failing to turn over exculpatory evidence, tampering with evidence, knowingly presenting false witness testimony or other false evidence to a court or grand jury.

Sufficiently culpable and harmful misconduct can result in the dismissal of charges or a declaration of a mistrial.  However, in the case with Cummings, his defense lawyers will have to argue convincingly in court that the prosecutor willfully engaged in misconduct and that the misconduct “prejudiced” the defendant. 

Quoting Rule 7 of governing the behavior of lawyers in Liberia, the defense lawyers argued that the rules forbid lawyers from suppressing and secreting information and evidence capable of proving the innocence of a defendant — rendering “Cephus and team’s conduct grossly unethical and criminally unprofessional.”

Rule 7 states: “The primary duty of the lawyer engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible and utterly unprofessional.”

But in reply, the state vehemently denies and dismisses any prosecutorial misconduct as the evidence in question belongs to the prosecution – as it is “inconceivable as to how the prosecution can extract documents from its evidence that is being used to prosecute the criminal defendants but which the defense team alleges should have exonerated their clients.”

The state then added that the prosecution will ensure that Co-defendant Cummings and his lieutenants are given a fair and free trial without any hindrance and the opportunity to face their accusers, where applicable, as a matter of law, but noted that no amount of negative media campaign or inflammatory comments and false allegations will distract the prosecution from proceeding with the trial.

“The Solicitor-General, on behalf of the prosecution, categorically denies violating Rule 7 of the Rules of Moral Code and Ethical Conduct,” the state release said. “It calls on the defense to mount appropriate legal challenges to the quantum of evidence being presented by the prosecution rather than hatching an ill-fated ploy to blackmail and distract the general public from closely following what will eventually end up with the criminal conviction of co-defendant Cummings and lieutenants  because of the prosecution preponderance of the evidence.”