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Froomkin slams Police over handling of case

DPP at centre of Middleton fiasco

By Karen Smith The Royal Gazette Ltd
August 9, 2000

By Karen Smith The Royal Gazette Ltd
August 12, 2000

Alternative headlines …

Former AG blames the police

Police blame AG

Former Attorney General Saul Froomkin yesterday attacked Police's sloppy handling of the plea bargaining in the Middleton murder case.

Mr. Froomkin said a written record should have been kept of the deal which allowed Kirk Mundy to plead guilty to being an accessory after the fact.  He said they were then wrong to renege on that agreement.

"In the Mundy matter there was a lack, to my knowledge, of a written immunity document, so everyone knew the arrangement," said Mr. Froomkin. "The fact that the prosecution subsequently sought to breach that agreement was a very bad thing."

Mr. Froomkin also revealed that

detectives with legal queries were warned to stay away from staff in the AG's Chambers by top ranking officers.  

But he said officers "surreptitiously" continued to go to him for advice.

He said: "I always made myself available to talk to Police officers, but what came down from above was that people should not come to see me until a file had been finished. "I ran into some opposition from senior officers.

When asked by Bermuda Bar Association president Richard Hector, who has been appointed to help marshal the inquiry and present the evidence, to identify where the warning came from, he answered: "I would rather only say, if I may, that it came from high up."  

Acting Assistant Police Commissioner Victor Richmond who headed the investigation into the murder of the 17-year-old Canadian said both former Attorney General (AG) Elliott Mottley and Mr. Tokunbo were central to the decisions taken.

Director of Public Prosecutions Khamisi Tokunbo was yesterday publicly named as being at the centre of a plea bargaining fiasco that saw a suspect in the Rebecca Middleton case evade a murder charge.

After both Mundy and Justis Smith were arrested in connection with the slaying of Rebecca, detectives held a meeting with top prosecutors.

There, he said, members of the AG's chambers, including Mr. Tokunbo, who was Senior Crown counsel at the time, wanted to offer Mundy a deal whereby he be offered a lesser sentence in return for information.

Mr. Richmond, who was detective superintendent at the time of Rebecca's death, also revealed how both Mundy and Smith were charged before any DNA test results had been returned.

Mr. Richmond said Police officers did not have the power to strike deals with suspects, but instead it was down to prosecutors or the Attorney General to discuss them with defendants and their lawyers.

He said, as a result of the meeting, agreements were reached on the charges.  The senior officer said although nobody had ever been convicted of Rebecca's murder, in his mind, the two people responsible had been found.

"There never was an immunity deal offered to Mundy.


He was charged based on the evidence that the Police provided us with at the time.  "They had nothing else but his statement.

"For years people have said there was a deal, but there was no deal. There was no written immunity document because there was no immunity offered.

"I have never spoken out before, but now I think it is time."

When asked if Mundy had been given immunity, Mr. Tokunbo replied: "Of course not. No document was written by Mundy's lawyer or anyone.

struck a deal to get a suspect in the Middleton murder case a lesser charge.

Despite numerous denials of any deal by prosecutors, Mr. Pettingill, who is also a United Bermuda Party Senator, said he approached senior Police officers investigating the death of the 17-year-old Canadian with an offer that would get his client off a murder indictment.

He said Superintendent Victor Richmond and Detective Inspector Stuart Crockwell took his proposal to former Attorney General Elliott Mottley and senior prosecutors, including the now Director of Public Prosecutions Khamisi Tokunbo.

The Senator said: "I made the proposal on my instructions to Vic Richmond and to Det. Insp. Crockwell on Friday, July 12 at the conclusion of two days of statements.  "It was on the basis of a lesser charge.  There was a special hearing in Magistrates' Court the following morning.  When I appeared in court I was given the charge sheet by Inspector Crockwell, he said `there you go, you got what you wanted'."

He did not think to put the offer of a deal in writing, because it was his understanding that the official position of the AG's chambers was that they did not plea bargain on a formal basis.

But he said the Supreme Court, Court of Appeal and Privy Council had upheld the claim that there was a deal over Mundy's charge.

Top prosecutor Khamisi Tokunbo publicly claimed some Police officers in Bermuda were "a law unto themselves" and that he had major concerns about the discipline and loyalty in the Police force.   I don't wish to embarrass anybody, but I know that senior officers are unable to utilise their rank. 

Favouritism played a large part in the service, with junior officers who were close friends with the right people refusing to answer to their immediate superiors.

Bermudian lawyer Shirley Simmons, who is also a commissioner along with former British deputy chief constable Don Dovaston, asked Mr. Tokunbo whether race or nationality ever played a part in the prosecution of cases. The witness said: "You can have suspicions that this is happening, but it's very difficult to prove.

In the Dean Young murder trial (April 2000), it became clear that senior officers in the major crime unit were unaware that they were responsible and in overall control of all exhibits used in cases naming Detective Chief Inspector Carlton Adams and Detective Inspector Howard Cutts (head of SOCO).

Mr. Tokunbo also heavily criticised SOCO (Scenes Of Crime Office).  He said there seemed to be little understanding of what roles the Police and Government analyst played.  "Cutts said `have you ever tried to tell the chief medical officer what you want'.  "I thought that was a defeatist approach. They did not understand their roles."

Mr. Tokunbo said SOCO unit had made a glaring error during the Young murder investigation by failing to take blood samples from three different areas at the scene of the crime. Fortunately, for the prosecution, that was not commented on by the defence counsel.

Mr. Tokunbo said the SOCO unit had failed to work alongside the pathologist and only offered certain pieces of information when they were pressed by prosecutors.

Mr. Tokunbo also revealed that during the same investigation, a uniformed Police officer in charge of securing the property and ensuring the scene was not contaminated, allowed a neighbour to go inside to collect something.

Mr. Dovaston asked Mr. Tokunbo if anybody had made formal complaints, for example to Police Commissioner Jean-Jacques Lemay, about the errors, to which he said he had "no idea".  The commissioner asked: "Do you not think it's part of your responsibility to do that?"  The witness replied: "Yes, I accept that. I make no excuses except that I'm trying to do a number of things, including organise my own department."

The detective in overall charge of the botched investigation into the murder of Rebecca Middleton  denied one of two suspects was offered a deal of a lesser charge - describing it instead as a "strategy".

He admitted talking to defence lawyer Mark Pettingill, who was representing murder suspect Kirk Mundy, about a proposal to charge his client with the lesser charge of accessory after the fact.

Mr. Richmond said: "I do not have the power or any authority to make deals or plea bargain.

Commissioner Don Dovaston asked Mr. Richmond if a deal had been struck at the meeting, or suggested to him that the notion of a deal could be "folly".

Mr. Richmond replied: "No", there was no deal.

"He continued: "The only person who could have misconstrued it would be Mr. Pettingill himself, based on the comment made by Inspector Crockwell when he handed him a copy of the charge sheet at court the next morning."

Mr. Mottley said he also raised concerns about the level of activity in the murder case with the acting Commissioner of Police at the time.

He recalled telling officers that they would have to find other forensic evidence if they wanted to prosecute Kirk Mundy for murder. It was not until December 1997 that a forensic expert signed a statement that two people must have committed the murder

"In September 1996 Police accepted what Kirk Mundy, a Jamaican, said - the investigation wound down to a low level."  The evidence that Mundy was implicated in the murder came 18 months after the crime, he said, adding that a first forensic expert would not commit herself in writing that two people were involved.

During his evidence to the Commission of Inquiry into Serious Crimes, Mr. Mottley told of a meeting at Government House in which comments were made about the proceedings.  "I was told by someone there that "there is no way a Bermudian jury was going to convict a Bermudian for murder after a Jamaican had been convicted for accessory after the fact."

 according to Mr. Motley - the Solicitor General said he `could always blame Mr. Mottley' if he lost the case.

The day before Mr. Pearce was due to give his closing speech in the trial, Mr. Mottley recalled a conversation between the two.

"I said `do you have enough evidence?', he said `yes, I do', adding `in any case, if I lose the case I could always blame you'."

Mr. Mottley dismissed previous witnesses who suggested a deal was struck to allow Kirk Mundy to plead guilty to being an accessory after the fact in return for testifying against co-defendant Justis Smith. He said there was no deal.

"I had junior officers in the Attorney General's Chambers expressing concerns over the manner in which the case was being prosecuted," he said.

Later, he claimed, Mr. Pearce wanted the current Director of Public Prosecutions and at the time acting senior Crown Counsel, Khamisi Tukunbo, to help with the trial.

Mr. Mottley angrily denied that any deal had been made with Kirk Mundy and said that, during his tenure in Bermuda, he was aware of two cases where immunity was granted from prosecution - adding that it could only be given by the former Attorney General or now Director of Public Prosecutions.

"People have said there was an immunity agreement, what I have yet to hear is "who stated the time, place, with whom was the agreement made? It is fallacy to say there was an agreement."

Kirk Mundy received just a five-year sentence for his involvement in Rebecca's death, despite DNA tests which proved he had had sex with her prior to the attack.  Justis Smith, who was charged with her murder, walked free.  Rebecca was raped, tortured and butchered to death in Ferry Reach in July 1996 while staying on holiday with Mr. Meens and his daughter.

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