Liberia: State Loses Right to Reopen Case Against Cummings Later

The Stipendiary Magistrate Jomah Jallah of the Monrovia City Court has approved the Ministry of Justice’s Nolle Prosequi request, which dropped all charges against Alexander B. Cummings and co-defendants, but with prejudice to the State.

Magistrate Jallah’s decision comes after the government has filed a request for Nolle Prosequi in favor of the defendants but without prejudice to the state — giving them the right to refile where applicable; however, with the request being granted with PREJUDICE to the State, Cummings and his Co-accused cannot be reindicted for the same crime.

A nolle prosequi is a prosecutor’s formal entry on the record indicating it is no longer prosecuting a pending criminal charge against the defendant. A nolle prosequi acts as a dismissal of the charges, usually without prejudice.

“It is the opinion of this Court that the State cannot voluntarily terminate the case with reservation to refile the same action after the defendants have answered to the complaint and pleaded not guilty, and the state has produced evidence against the defendants without putting them in jeopardy,” Magistrate Jallah ruled. 

“Wherefore and in view of the foregoing facts and circumstances, the State's plea of Nolle Prosequi in favor of the Defendants is granted with PREJUDICE to the Government of Liberia,” he added. “The defendants are ordered discharged from further answering to the allegations contained in the complaint and crimes with which they were charged and prosecuted. The defendants' liberties are restored as though they were never limited or restricted.

The case against Cummings et al came as an accusation by Benoni Urey of the All Liberian Party and supported by the government that the political leader of the opposition Alternative National Congress, along with his party Chairman, Senator Daniel Naatehn of Gbarpolu County, and the party’s Secretary-General, Aloysius Toe, out of deception, surreptitiously altered framework documents of the collaborating Political Parties.”

The State averred that the conduct of the Defendants violated sections 15.70 and 10.2 of the New Penal Law of Liberia — an accusation the accused denied. During the trial, which ended on June 3, the government produced one general witness and five subpoenaed witnesses, who testified to, identified, and confirmed several pieces of documentary evidence.

While the State’s fifth subpoenaed witness was being cross-examined by the defense counsel,  it entered a plea of Nolle Prosequi — asking the Court to dismiss the charges against the defendants, without prejudice to the state — a request which has been granted but with prejudice to the state.

 The Ministry of Justice, in its plea for Nolle Prosequi, filed on June 4, via Solicitor General Cllr. Sayma Syrennius Cephus disclosed that the continued prosecution of this case would not serve the interests of justice as the government does not prosecute anyone for a crime whose victim — the ALP experienced no injury or damage.

Cllr. Cephus noted that the country’s law contends that injury in any contractual agreement is considered as any harm that a person suffers physically or psychologically as a consequence of the acts or omission of another but in the Cummings case, it is difficult to decipher the raison d'être, why he and others should still be in the dock when the moving parties have out rightly rejected the framework documents.

“It is therefore difficult if not inconceivable for me to conjecture or to arrive at any obvious conclusion, the actual damage to, if any, that a constituent political party or its political leader has suffered having already left the CPP on account of a disputed or fraudulent framework document filed with NEC by  Cummings and his disciples,” Cllr. Cephus wrote the Monrovia City Court. “That being the law extant, it is our considered opinion to terminate this cause of action and herewith enter a Nolle Prosequi in favor of the defendants but without prejudice to the state and with the right to refile where applicable.”

Magistrate Jallah’s ruling denied the government pled for Nolle Prosequi without prejudice came after Cummings lawyers argued that their client  interpose no objection to the State's application, except that the case should and ought to be dismissed with prejudice to the State because the State's voluntary termination of the case comes during the trial after “produced evidence against the defendants.”

The lawyers added that the State is not entitled to the reservation of any right to refile the action or to charge and try the defendants for the same offenses “or any degree thereof, because double jeopardy has attached pursuant to Chapter 3, Section 3.1 of the Criminal Procedure Law, Liberian Code of Laws Revised, Title l, and many decisions of the Supreme Court of Liberia.”

“The Defendants argued that ordinarily, a plea of double jeopardy will lie as a defense to a subsequent prosecution if and when it arises, and not at the stage of granting a Nolle prosequi without prejudice after the trial has commenced. However, when the State requests Nolle prosequi without prejudice after the trial has commenced, the Court can only grant with reservation to refile after it has determined that jeopardy has not been attached at the time of the filing of or granting of a plea of Nolle Prosequi.”

Agreeing with the defense lawyers, Magistrate Jallah, Citing legal principles, said that while it is true the State reserves the right to terminate the trial,  there are limitations to its right to refile the same action — as the State’s right to relitigating the matter is limited by the fact that (i) the defendants answered the complaint and pleaded not guilty; the State produced oral and documentary evidence and it is the State's decision to terminate the case voluntary -- not occasioned by any event of manifest necessity.

He added that the doctrine of double jeopardy, although not an issue before this court, which applies to all criminal prosecutions, cannot be considered in the Cummings trial as it jeopardy the defendants' will if the state request for  Nolle Prosequi without prejudice to the state's is granted.

“The prohibition against double jeopardy is a constitutionally guaranteed right by all persons.  It was designed to protect an individual against the inconveniences of repealed prøseculion for the same crime, which tends to curtail his liberty and freedom.   Article 211) the Constitution of Liberia 1986 states that "....NO persons shall be subject to double jeopardy," Magistrate Jallah added.

Meanwhile, Magistrate Jallah, while citing the Supreme Court of Liberia ruling in the Wright v. Reeves cases of 1977, said that constitutional provisions against the second jeopardy apply only to a second prosecution for the same act and crime both in law and fact on which the first prosecution was based." 

“For double jeopardy to lie, “it is not even essential that a verdict of guilty or innocence be returned for an accused to have once been placed in jeopardy so as to bar a second trial on the same charge. An accused is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict," he said.