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Court Vacates Kendall Order In Frett Murder Case

May 16, 2009 — The V.I. Supreme Court has vacated Superior Court Judge Leon Kendall's orders for the government to enforce a highly contested plea agreement for brothers Basheem Ford and Jermaine Paris, charged with gunning down veteran Police Officer Ariel Frett a little more than two years ago.
Two months ago, the Supreme Court granted a motion to stay a pre-trial hearing at which the brothers were expected to plead guilty to involuntary manslaughter. The motion, filed by Assistant Attorney General Jesse Bethel, came on the heels of a ruling by Kendall ordering the government to execute the pleas, even though Bethel and the government have contended that an offer for involuntary manslaughter was never on the table.
The controversy over the plea agreement hinges on a Jan. 30 hearing held in Kendall's chambers in which defense attorneys Steven Hogroian, representing Ford, and Samuel Joseph, representing Paris, claimed Bethel had offered their clients a plea of involuntary manslaughter. At the time, the attorneys played a tape recording of a conversation which they said documented the offer.
Bethel has said that he "misspoke" during the conversation and meant to make an offer for voluntary manslaughter. An involuntary manslaughter plea would be inconsistent with the case that the government has been presenting, he has explained.
Attorney General Vincent Frazer subsequently filed a motion asking for the Supreme Court to vacate Kendall's orders, arguing among other things that Kendall repeatedly denied Bethel's attempts to make a record of appeal during the Jan. 30 in-chamber hearing, and that it was unlawful for the judge to force the government to "consummate" a plea deal "for which there is no factual basis." (See "Murder Trial Delayed by Wrangling Over Plea Bargain.")
In an opinion handed down this week, Supreme Court justices granted the motion, saying that criminal defendants do not have a "constitutional right to a plea bargain."
"Consequently, the government does not possess a duty to enter into plea negotiations with a defendant," according to the opinion. Drawing from case law, justices said the government could also "unilaterally withdraw a plea offer" without violating a defendant's constitutional rights.
"This is because a plea agreement, as a unilateral contract, cannot become binding on the parties through a defendant's mere promise of performance but by the defendant's actual performance — a change of plea to guilty," justices opined.
Kendall has contended that the involuntary manslaughter offer was valid, and in his Feb. 20 opinion, added that the government had to enforce the agreement because media publicity generated by the case would make it difficult for Ford and Paris to get a fair trial.
"The court agrees that the alternate remedy of a fair jury trial is not available to the defendants, thus requiring the court to enforce the original agreement," Kendall wrote in his opinion, adding that various media outlets — specifically the St. Thomas Source and the St. John Source as well as the V.I. Daily News — carried stories of the brothers' "desire" to plead guilty to involuntary manslaughter.
"Even if the trial court could take judicial notice of these media reports, the U.S. Supreme Court has consistently held that the mere fact that a criminal case has garnered media attention prior to trial…is insufficient for a pre-trial finding that publicity has tainted the jury pool," according to the V.I. Supreme Court opinion.
"The Superior Court acted contrary to clear, binding precedent from the U.S. Supreme Court and the Third Circuit when it premised its decision on evidence not on the record and concluded, without considering other curative measures such as a change of venue … that pre-trial publicity tainted the jury pool to such an extent that the defendants could no longer obtain a fair trial," justices added. "Accordingly, the people have demonstrated a clear and indisputable right to the relief they've requested."
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