Ethics in the Workplace Essay

Ethics in the Workplace Essay.

In 1995 Douglas Durand went to work for Tap Pharmaceuticals as vice- president of sales. Several months after starting at Tap Pharmaceuticals, Durand was in disbelief to find out that the company was bribing urologists to purchase the new Lupron drug for prostate cancer. Durand found the culture at Tap Pharmaceuticals to be in misalignment. In order for Durand to protect his good name, he began to document all his findings over a 6 year period and submitting the information to federal prosecutors.

The documentation that Durand submitted to the federal prosecutors was so overwhelming that it caused Tap Pharmaceuticals to plead guilty to conspiring with doctors and cheating the government. As result of the guilty plead, Tap Pharmaceuticals paid a staggering $875 million dollar fine, which Durand received 14% of the settlement for his efforts to remedy the situation.

The symptoms found in the Tap Pharmaceuticals case are primarily driven by numbers and monetary rewards. The more the top sales reps could sale or distribute the bigger the monetary reward.

Durand tried to institute a more structured environment to help remedy some of the illegal practices he encountered. Many of the sales reps at Tap Pharmaceuticals did not accurately track the samples of Lupron given out to doctors. Durand offered a year salary to sales reps to help the company keep accurate records of distribution of the drugs offered. It worked until upper management shut down the bonus program, furthermore; the reps settled back into their old ways. Symptoms of dishonesty, unethical behavior, inadequate record keeping, crooked doctors, and a complete disregard for laws and regulations set forth by the government are derived from the root cause of poor upper management found at Tap Pharmaceuticals.

The root cause and unresolved issues that Durand encountered at Tap Pharmaceuticals are a direct result of the monetary driven culture created by then president Yasu Hasegawa and senior management. Durand found that when he tried to implement new policies or practices that Hasegawa and the sales reps were not interested, or he was undermined by senior management. Tap pharmaceuticals primary sales niche was to bribe and payoff the people who prescribed the drugs offered by purchasing televisions, vacations, and office equipment.

The unethical practices are a direct result of a lack of unethical leadership and ethical standards and practices not being in place. Tap Pharmaceuticals did not have a hose counsel to help keep practices ethical and meet government requirements because it was thought to be a sales-prevention department. Durand eventually found himself excluded from marketing and sales meetings and told that he just did not understand the culture. The lack of ethical leadership in the company is the root of the problem found at Tap Pharmaceuticals and left all the issues that Durand found unresolved.

Analyze and evaluate alternatives.

Decide on the most valid alternative, and make recommendations.

When thinking of alternatives, people think of other options that may apply in order to have a different outcome than the current outcome. When Durand was offered the position as Vice President of Sales with Tap Pharmaceuticals, he had no idea what he was getting involved with. All he saw was a potential for a promotion in an industry where he had already served his time and made a name for himself. Durand has a couple alternatives in this ethical situation. He could have kept his mouth shut and adhered to Tap Pharmaceuticals’ policies and procedures and unethical practices. The outcome to this alternative could have proven to be very poor for Durand. If Durand continued to allow Tap Pharmaceuticals to conduct business in the sales department as they always had in the past, eventually, the federal government would have caught on to the unethical practices and levied fines against Tap Pharmaceuticals and Mr. Durand.

He could have even been prosecuted for the practices he witnessed at Tap Pharmaceuticals. When employees are directed to blatantly break the law in order to keep sales up and to give out medicine samples without charging for them, there is a huge ethical problem. Tap Pharmaceuticals instructed the doctors to charge Medicare for the samples even though they never paid for them in the first place. It seemed as if Tap Pharmaceuticals planned to break every law of the trade in order to make the most money in the least amount of time. This alternative would not work for Mr. Durand. He had a steady head on his shoulders and would not stand for the unethical practices he had witnessed. But what would he do about the problem? This question would later come into play when Mr. Durand was faced with a tough decision.

A second alternative Mr. Durand had was to leave Tap Pharmaceuticals with a resignation. But a resignation would land him and his family out on the streets. He did not want to jeopardize his family’s lifestyle and affect the way his children would grow up. After all, Mr. Durand did leave a well paying job with a huge medical pharmaceutical company. This alternative would be even worse than staying with Tap Pharmaceuticals and pretending nothing wrong was going on. He had to support his family and to Mr. Durand this was the most important issue to handle. If Mr. Durand resigned from Tap Pharmaceuticals, he would have to start all over again and work his way back up the corporate ladder as he did 20 years before with Merck & Co.

Mr. Durand had very few options or avenues to take in his ethical dilemma. He was virtually stuck “between a rock and a hard place.” He truly made the perfect decision when he decided to file suit against Tap Pharmaceuticals. This was the best possible option he could have used. First, Tap Pharmaceuticals was breaking the law and if they continued to practice unethical business, they could have hurt someone or continued to defraud the United States government and Medicare. Since Mr. Durand was familiar with the practices of the pharmaceutical industry, he had no other choice but to blow the whistle on Tap Pharmaceuticals.

TAP Pharmaceuticals, a physician, and 7 employees of TAP Pharmaceuticals were charged and indicted for bribing physicians with kickbacks to use the drug Lupron. The federal grand jury also found them guilty of Medicare fraud, and violation of the Prescription Drug Marketing Act. PSA-Rising (2001) states,The seven individuals charged in the indictment unsealed today are:Alan Mackenzie age 49, of 27068 Wellington Court, Barrington, Illinois, andformerly Vice President of Sales for TAP, Janice Swirski, age 40, of 6 BellinghamDrive, Chestnut Hill, Massachusetts, and formerly a National Account Manager with TAP,Henry Van Mourick, age 43, of 23 Golfwood Court, Roseville, California, andcurrently a District Manager employed by TAP, Donna Tom, age 37, of 141 East 56thStreet, New York, New York, and formerly a District Manager employed by TAP,Kimberlee Chase, age 35, of 108 Dedham Street, Dover, Massachusetts, and formerly aDistrict Manager employed by TAP, David Guido, age 30, of 131 New London Road,Colchester, Connecticut, and currently a Hospital Account Executive employed by TAP, DR.

John Romano, age 48, of 110 Long Pond Road, Plymouth, Massachusetts, an urologistwith a practice in Plymouth, Massachusetts.

Four other physicians’ were indicted before the above indictment. TAP Pharmaceuticals bribed urologists to use the drug Lupron by giving them big screen televisions, golf vacations, and free sample of Lupron. The sales representatives also gave the physician’s free samples of Lupron and told the physicians to bill Medicare for full price.

Durand tried to change different aspects of how Tap Pharmaceuticals was run, but all to no avail. Whenever he implemented a new structural change, the employees would try it for a short while and return to the way they had done things in the past. Accurate bookkeeping was a logical idea to put into action. This would tell exactly how much each rep gave out to doctors and pharmacies as samples for them to try out. The old way never showed how much they were paid for each sample given because there was no way to know how many had been given out. Whenever new ideas are put into effect, it still takes people to uphold these new rules and regulations. When Yasu Hasegawa failed to show any sort of business ethics, why would any of his employees? A good leader will lead by example. When people follow someone he/she want to emulate his/her actions, not just his/her words. By having a person with little moral fiber lead the company, it allowed some that might have been on the fence about the situation to fall to the same side.

Durand’s cultural change effort failed because senior management and older sales reps refused to change the company for the better. They had been doing things their way for too long and the payoff incentive was too great. The shady business practices were much easier than trying to keep records of exactly how many samples were given out and who all had been bought. When the president of the company would not even change his ways on how he dealt with his business, how could his employees be expected to change as well?

In a business that deals with healthcare, the most important aspect should always be the patients. Since nobody truly cared about them and all the employees concerns were with lining their own pockets, the business ended up being sued for quite a large amount of money. The only way for Durand’s changes to succeed, would be if there were a total overhaul of management. The company would need to basically start over in order to weed out all the bad eggs. That would take a great deal of time, not to mention a great deal of money. Even though Durand became a whistle-blower on Tap Pharmaceuticals and the company was fined, there are sure to be employees who were guilty but not indicted.

In TAP Pharmaceuticals there was an attitude of a misalignment of culture. The profit driven only environment provided no ethical leadership. Upper management including the CEO, who set the tone of weak unethical leadership, held no interest in change. TAP had no formal cultural system. The bottom line was the only factor and how profits were obtained was of little concern. When Durand attempted to make positive changes to the system through a “Reward System,” upper management put a stop to it even tough it was working and labeled him a trouble maker. TAP was not interested in positive ethical change. The gifts to urologists and doctors TAP pharmaceuticals participated in set an unethical culture.

ConclusionIn the end Tap received one of the largest fines in the pharmaceutical industry and the job of rebuilding its image and reorganizing its business practices. Seven of its senior management team received heavy financial and judicial penalties for their part in the Lupron scandal. Douglas Durand in the end had to start over in a new less lucrative position, furthermore; he did receive a large settlement from the federal government under the Whistle-Blowers Act and currently retired and living in Florida.

References:

Barrett, A. (2002, June 24). A Whistle-Blower Rocks an Industry. Business Week. RetrievedJune 19, 2007, from
http://www.fairness.com/resources/relation?relation_id=9650Nelson, K., & Trevino, L. (2004). Managing business ethics: Straight talk about how to do itright (3rd ed.) . New York: Wiley.

PSA Rising (October 3, 2001). TAP Pharmaceuticals Products Inc. and Seven Others ChargedWith Health Care Crimes; Company Agrees to Pay $875 Million to Settle Charges. RetrievedJune 22, 2007 from http://www.psa-rising.com/wiredbird/tap102001.php

Ethics in the Workplace Essay

The Adversarial System Essay

The Adversarial System Essay.

The system of criminal procedure primarily utilized in the United States is the adversarial system. The term adversary is easily interpreted to mean opposition. Our present criminal procedure pits two sides against each other to present their respective evidence and issues surrounding a criminal act. This paper will address the adversarial system and its expressed use in criminal court proceedings in the United States. Among the questions this paper will take into consideration are: Is the adversarial system the best way to achieve justice in the criminal courts of the United States; what those limitations are; how those limitations deliver justice; alternatives to the adversarial system; and the advantages or disadvantages of those alternatives.

Achieving Justice

When confronted with the issue of the best method to achieving justice in criminal court proceedings; one must understand what the adversarial system entails.

The use of a jury, the standard of evidence relied upon and the standard of proof, the cross-examining of witnesses and the ability to plead guilty, contribute greatly to reaching justice in the adversary system.

They are all reasons which help the adversary system in accomplishing fairness in criminal trials. The adversary system is a feature of the common law system and was brought to Australia with England. It has adapted to the Australian legal system. It is a system of trial where, the two sides of the case try to present and prove their version of the facts and disprove the version of the other side.(Cook, Creyke, & Geddes Hamer, 2005) A jury decides guilt or innocence, while a judge or magistrate guides the jury in areas of law, as well as deciding a suitable punishment for the defendant.

In criminal cases in the adversarial system of trial, justice is achieved through the use of evidence. In the adversarial system, the standard of evidence that can be used to support an argument is high. This is seen in the statement the rules of evidence are considerably stricter than the inquisitorial system. (Wikipedia Encyclopedia, 2008) This shows that the evidence that will be accepted is of reasonable quality and that it will less likely be made up. The burden of proof in criminal cases lies with the prosecution. The standard that guilt must be proven is beyond reasonable doubt. This is so that there is less chance of an innocent person being convicted. The statement, No matter how strong the prosecutions evidence may be, if the magistrate or the jury has any reasonable doubt that he or she is guilty, the accused is entitled to be acquitted( Nettheim, 2002) proves that there should be no doubt when convicting a person.

The standard of proof and evidence that the adversary system employs are among the factors that make it the best system for achieving justice in criminal cases. Evidence is such an important factor because often it can determine cases and the outcome of the case. For example, if there is not enough evidence presented in a committal hearing for a serious criminal offence then the case is dismissed. However, if the magistrate decides that there is enough evidence, then the case is referred to a higher court for trial.(Hamper, Derwnet, & Draper, 2002) With this in mind, evidence helps to achieve justice as enough of it and the presentation will allow the prosecution to prove that the accused is guilty of the actions they are claiming the other party to have done. This also works on the other hand, if the defendant is trying to prove their innocence, evidence can assist them in proving to the jury their innocence. If they are able to prove to one person that they are innocent, then they will be able to win their case. Thus, evidence plays an important role in the way that the adversary system of criminal trial is able to achieve justice.

The cross-examination of witnesses in the adversary system helps to make it a great system for achieving justice in criminal trials. This is an important aspect of adversary systems as it allows evidence to be used in a correct manner. This also allows for evidence that is false or misleading to be brought to light and dismissed. In some cases, the cross-examining of witnesses allows for evidence to be brought forward that was not available earlier. This can be through statements that witnesses may give. For example, a person who has omitted some small fact or matter because they thought it was irrelevant, cross-examining that person could bring the matter up and could lead to proof being found out about something that was uncertain previously. This is good for both the defendant and the prosecution as it allows both sides to contest evidence that is being presented and also to gather points for their own case.

Therefore, the defendant has the chance to prove their innocence and the prosecution will also have the opportunity to prove the guilt of the opposing party, making it fair for both sides. In this system, the prosecution and the defense present their case to an impartial court. The judge relies on both sides calling witnesses and presenting evidence to both judge and jury.(Hamper, Derwnet, & Draper, 2002) This can be seen in many cases, when cross-examining a witness to find out details assists a particular side and ensures that these points are considered when determining a verdict. The adversary system provides the best system for achieving justice in criminal cases through cross-examination of witnesses as it allows for evidence to be examined and for irrelevant or unimportant evidence to be discarded. Juries are an important element of criminal trials in the adversary system and aid it in being the best system for achieving justice. Through the use of plea bargaining in criminal trials, the adversary system is the best system for accomplishing justice.

The adversary system is the best system for achieving justice in criminal trials because of its use of several different elements. These elements combine to produce an effective and working system that provides justice to a majority of cases and instances. The implementation of plea bargaining, the standard of proof and evidence utilized, the use of juries and the cross-examining of witnesses are all features that the adversary system synthesiss to produce an efficient method for achieving justice.

Some of the disadvantages are the misconduct in the courtrooms. In the court room, just as outside the courtroom, there are always times in which misconduct of a courtroom player takes place. In today’s society, misconduct is usually dealt with by removing the individual from their position and if necessary bringing criminal charges against the individual. In the perfect society, we would continue to remove individuals from their positions if misconduct is proven and we cannot avoid bringing about criminal charges because this would just allow other courtroom players to believe that they could get away with crime.

References

Nettheim (2002). Understanding the Law (6th Ed.). Butterworths Australia: AustraliaCook, Creyke, Geddes & Hamer (Eds.). (2005). Laying Down the Law (6th Ed.).LexisNexis.

Hamper, Derwnet, Draper (2002). Legal Studies. Australia: Longman.

Wikipedia Encyclopidia. (1, January 2008). Adversarial System. Retrieved January 19, 2008, from http://en.wikipedia.org/wiki/Adversarial_systemhttpHamper, D. Derwent, B. Draper, A. (2002). Legal Studies- HSC Textbook. Longman: Australiahttp://www.associatedcontent.com/article/31690/criminal_justice_system_in_action_the.html

The Adversarial System Essay

The Plea Bargaining Process Essay

The Plea Bargaining Process Essay.

Plea bargaining is a commonly used prosecutorial method to dispose of a case without going to trial. A plea bargain or negotiated plea is an agreement between the defense and the prosecutor in which a defendant pleads guilty to a criminal charge and in exchange he expects to receive some form of consideration from the state. (Neubauer, 2002, p. 323) Most cases never make it to trial, more than 80 percent of criminal cases filed ended with the defendant entering a guilty plea. (Fagin, 2003, p.

61)

Plea bargaining became common sometime after the Civil War. The proliferation of cases, in the federal courts, brought on by prohibition was instrumental in the institutionalization of plea bargaining. (Neubauer, 2002, p. 323) It was not until the sixties that plea bargaining became a topic of controversy. This controversy seems to stem from the fact that the name suggests that the courts are bargaining with criminals. But “much of what is characterized as ‘plea bargaining’ often involves the assessment and reassessment of facts….

” (Nasheri, 1998, p. 24) After examining all the facts the conclusion might be that there is just not enough evidence to win at trial.

The police and victims are the most likely to object to the negotiated plea because they feel the defendant is not being punished severely enough. The police work hard to collect evidence and securing witnesses to help with the conviction and would like to see the offender prosecuted on the more serious charges. The victim, on the other hand, wants the same thing but for a somewhat different reason, which would be “for revenge or retribution or just the satisfaction that justice has prevailed.” (Fagin, 2003, p. 309) In spite of the reasons against plea bargaining, it is still being used. Why is that?

There are several reasons why a prosecutor, judge and defendant would want to negotiate a plea agreement. For a judge his incentive would be to move along a crowded calendar. Another issue is the fact that jails are overcrowded and they do not want to be faced with the idea of releasing convicted people before their sentence is completed in order to accommodate the recently convicted one. Judges see plea bargaining as a way to ‘process out’ the less serious offenders.

For the defendant, the benefits include a more lenient sentence. If the defendant is denied or cannot afford bail they could be released immediately if a judge accepts the plea. Also, taking a case to trial usually means they would have to wait and that can be stressful, so one would want to resolve the matter as quickly as possible. Another plus is they would have a lesser charge on their record as opposed to a more serious one and since most employers would not hire you with a felony conviction, it would definitely be beneficial to plea to a misdemeanor.

As to the prosecutors, they do not have the resources available to them to take every good case to trial. So they then turn to plea bargaining as a way to deliver justice efficiently. (p. 61) The prosecutor’s office has the responsibility of trial preparation and also has to shoulder the costs that are associated with obtaining evidence and interviewing witnesses among other pretrial preparations. (p. 309) Therefore, the prosecutor will then select which case to take to trial and which to plead out. This is based on whether he thinks he has sufficient evidence to prove every element of the charge. Also, he might not have complete confidence in the witnesses’ testimony or there is a chance the victim might refuse to cooperate at the last minute. Prosecutors also use plea bargaining to reward a cooperating defendant. (Neubauer, 2002, p. 330)

A plea negotiation can be initiated by the prosecutor or the defense attorney. And the process can start anywhere after arraignment and will continue up until the jury comes back with a verdict. The center of the bargaining can be the charges, the counts or the sentence. In charge bargaining, “the prosecutor allows the defendant to plead guilty to a less serious charge than the one filed.” (p. 325) For example, you can plea to robbery instead of the armed robbery that was originally charged. Also some charges are socially offensive and if convicted you would be stigmatized and would be at great risk in prison. For example, a molestation or rape charge might be reduced to an assault charge, which would look better on your record and carries less time. And you would not be labeled as a rapist or child molester.

With count bargaining the defendant will plead to some of the counts listed in the charge. The prosecutor would dismiss the remaining counts. (p. 326) “Count bargaining is often used when the defendant has engaged in essentially a single criminal act but the law specifies several separate and often technical criminal violations.” (p. 326) A reduction in the number of counts would result in a reduction in sentence, since someone charged with multiple counts can receive the maximum sentence.

In sentence bargaining the offender is seeking leniency and the sentence can be anything from probation to life in prison, depending on the severity of the offense. Since the judge is the one who hands out sentences he has to then be included in this negotiation process. (Fagin, 2003, p. 312) The judge’s involvement in a plea negotiation “raises a serious question as to the role of the judge in the adjudication process.” (p. 312) The Federal Rules of Criminal Procedure has stated that negotiated pleas should be done without the courts’ participation. (p. 312) But in some instances the judge will be included in the process.

-Not all pleas are accepted, the plea must have three characteristics in order to be a valid plea.

* It must be voluntary, meaning the defendant was not coerced by the prosecutor or anyone else to enter that plea.

* It must be intelligent meaning the defendant understands the consequences of pleading guilty.

* It must be knowing, meaning the defendant has to be aware of all his options.

The only way to know if a plea is voluntary, intelligent and knowing is that the judge has to ask all the pertinent questions in court so it can be on the record.

The United States Supreme Court also set up guidelines for the prosecutor to abide by because they realize that the plea bargaining process does have room for abuse by the prosecutor. The following are the guidelines set up to avoid prosecutorial vindictiveness.

* He cannot charge or threaten to charge for offences where there is insufficient evidence.

* He cannot charge or threaten to charge for crimes not ordinarily charged.

* He cannot threaten a sentence more severe than normal for similar crimes.

* He cannot fail to grant full disclosure of exculpatory evidence.

With all the different components involved in plea bargaining there is a definite probability of some form of complication. What if the defendant did not understand fully the implications of a guilty plea? What if the prosecutor and/or defendant break their part of the agreement? These questions and more have been brought to the forefront in several landmark cases over the years where the outcome has helped to solidify exactly what is appropriate and what is inappropriate.

The issue regarding the characteristics of what a guilty plea should consist of was brought up in the case of Boykin v. Alabama (1969). Boykin entered a guilty plea without the benefit of competent counsel and the judge did not question him to find out if the plea was voluntary, knowing or intelligent. The decision of the Supreme Court was that the entry of a guilty plea has to be knowledgeable and these facts must be reflected on the court transcripts. (Nasheri, 1998, p. 19) This decision was reversed.

In North Carolina v. Alford (1970), Alford plead guilty but claimed to be innocent and stated he was doing so because he was afraid of the death penalty. “The Supreme Court ruled that it was permissible for a trial court to accept a guilty plea, even though the defendant maintained his innocence, provided that there was some evidence of his guilt, and provided that there was no indication that he had been coerced.” (p. 14) The court affirmed this decision.

In Santobello v. New York (1971), the prosecutor did not honor the promise in the agreement where he was to make no sentencing recommendation. “The Supreme Court held that whether the recommendation had actually influenced the sentence was immaterial.” (p. 23) The fact is that there was a promise made to the defendant that no recommendation would be made and that promise was broken. The court states that the promises made in a plea agreement must be fulfilled. This case was remanded back to the lower court for review.

Is there ever an instance where a prosecutor can be relieved from fulfilling a plea bargaining agreement? The courts stated “if a defendant conceals relevant facts such as a prior felony conviction…or fails to perform an act that was required as part of the agreement…” (Acker & Brody, 1999, p. 610), the prosecutor can then break said agreement. If a defendant enters a plea but commits an offense before sentencing or performs an act that was forbidden by the agreement the prosecutor can definitely not honor his promise.

In Rickett v. Adamson (1987), Adamson plead guilty to second degree murder, instead of first degree murder, which was a capital offense. The agreement was contingent upon him giving testimony against his co-defendants. He refused to testify and the prosecutor reinstated his original charge of first degree murder. The Supreme Court agreed that Adamson did breach the plea agreement and that the state was correct in revoking it. “Adamson’s death sentence was later vacated on other grounds.” (p. 610)

There are a few criticisms against this process. Some people believe that the court is being too lenient because plea bargaining allows for a lower sentence than if the case had went to trial, “yet these lower sentences spring not from institutionalized leniency but from legal standards…” (Mc Coy, 1993, p. XIV). The reason why a negotiated sentence is less is because there are factors involved in the case that demonstrates that the defendant does not deserve the maximum sentence. During the negotiating process these factors are discussed thoroughly and if the case cannot be proven beyond a reasonable doubt, a plea agreement would then be offered.

Another criticism is that plea bargaining is a departure from due process, because when someone decides to plea guilty they are relinquishing their 5th amendment rights against self-incrimination and 6th amendment right to confront their accuser and their right to a trial by a jury. In most cases he is also giving up the right to appeal except in those circumstances where some type of prosecutorial vindictiveness was involved.

Another concern is the fact that the victims are being ignored because of the fact they do not have their day in court to be heard. But the proponents for plea bargaining can retort by saying that the process is being sympathetic to the victim where they would not have to relive the experience by giving their testimony in court. (p. XIV) Also some witnesses might not wish to give testimony in court.

There has been some attempts made to try to eliminate or reduce the cases disposed of by plea bargaining. For instance, California’s proposition 8, the Victims Bill of Rights, was passed in 1982. It misled votes into thinking that it was in support of a ban on plea bargaining. (p. XVII) What it in fact did was speed up the time for the guilty plea to be approved by the courts, which means the cases would not be scrutinized as closely as before. (p. XVII) Therefore it would be done poorly to comply with the time restraints.

In sum, I believe plea bargaining plays an important role in the criminal justice system because it keeps the costs of justice affordable. Without it a prosecutor will stand the risk of losing the substantial time and resources he invested in a case, only to have the defendant be found not guilty by a jury and escape punishment altogether. It does have its disadvantages but overall I believe it should be continued because the advantages outweigh the disadvantages by far.

References:

Acker, J.R. & Brody, D.C. (1999). Criminal Procedure: A Contemporary Perspective. Maryland: Aspen Publishers, Inc.

Fagin, J.A. (2003). Criminal Justice. New Jersey: Pearson Education, Inc.

McCoy, C. (1993). Politics and Plea Bargaining. Pennsylvania: The University of Pennsylvania Press.

Nasheri, H. (1998). Betrayal of Due Process. Maryland: University Press of America, Inc.

Neubauer, D.W. (2002). America’s Courts and The Criminal Justice System. California: Wadsworth/Thomson Learning.

The Plea Bargaining Process Essay

The approach the Zimbabwean courts Essay

The approach the Zimbabwean courts Essay.

INTRODUCTION

A contract (according to Gibson 1997) is a lawful agreement made between two or more persons within the limits of their contractual capacity, with the serious intention of creating a legal obligation, communicating such intention, without vagueness, each to the other and being of the same mind as to the subject matter, to perform positive or negative acts which are possible of performance.

Contracting parties through agreement, breach and operation of law can terminate contractual agreements. This paper will focus on termination of contracts through breach.

Breach of a contract involves conducts, which are inconsistent with proper performance of the agreement. It is a violation of a material fact of the agreement. The material fact breached should go to the root of the contract.

In Zimbabwe, the main remedies available for a breach or threatened breach are; specific performance, cancellation, interdict and damages. The Zimbabwean law unlike the English law allows or permits the plaintiff to choose his remedies provided he does not want to just enrich himself.

Further, the plaintiff should not endeavor to enforce two inconsistent remedies.

SPECIFIC PERFORMANCE

This is enforcement or calling of enforcement of the exact performance by the injured party to a contract. Our law does not allow a party in breach of a contract to rid their default by paying damages but, allows the injured party to demand specific performance, which however, is subject to the discretion of the court as was decided in Farmers’ Co-operative Society v Berry 1912.

CANCELLATION

When there is breach going to the root of the contract the other party is entitled to cancel the contract. The injured party must elect within reasonable time whether to cancel or enforce the contract.

INTERDICT

It is a prohibitory order of the court that prohibits a specified act or acts. It makes it mandatory for the concerned party to obtain from doing what has been mentioned in the order. The applicant should show beyond reasonable doubt that if the interdict is not given an irreparable harm would be done. It should show some urgency as was decided in Setlegelo v Setlegelo.

DAMAGES

‘Damages for breach of contract are meant to put the injured party to the position he would have occupied had the contract been properly performed in so far as that can be done by payment of money and without undue hardship to the other party.’ Damages for breach are not meant to compensate the other party for what he has lost but for what the party should have gained had the contract been properly performed.

This paper will concentrate on damages to breach of contract and will give a critique of the approach taken by Zimbabwean courts towards the question of damages in breach of contract.

DAMAGES TO BREACH OF CONTRACT

These are monetary equivalents of specific performance. The fundamental rule in regard to award of damages for breach of contract is that the sufferer should be placed in the position he would have occupied had the contract been properly performed, so far as it can be satisfied by payment of money and without causing any hardships to the defaulting party as was decided in the case of Victoria Falls & Transvaal Power Co. Ltd v Consolidated Langlaagte Mines.

The General guidelines followed by the Zimbabwean courts in assessing appropriate damages include among others the:

Mitigation of losses by the injured party

Causation and remoteness of damages

Non award of damages for sentimental loss or injured feelings

MITIGATION OF LOSSES

In accordance with the principle that an award of damages must not cause undue hardship to the defaulting party, the plaintiff must mitigate his losses like what a reasonable man could do. The plaintiff is however, not expected to take unreasonable steps to mitigate his damages. This was cited in the case of Bulmer v Woollens Limited 1926, where the court held that Bulmer was entitled to damages for full amount of his loss, because the position of builder’s foreman was of totally different and subordinate character to his previous employment. As a result he was not obliged to take the post in order to mitigate the losses.

SCRUTINY OF CAUSATION AND REMOTENESS OF DAMAGES

To avoid undue hardship to the defaulting party a line must be drawn separating damages resulting from his breach for which he should be liable and damages which, although in the broad sense of the word are as a result of his breach, are so remote to extent that he should not be liable for them. This line is drawn when separating General (intrinsic) damages from Special (extrinsic) damages.

The courts insist that the damages should be direct rather than indirect. Direct damages are also known as general or intrinsic damages. They flow naturally and generally from the kind of breach of contract in question.

Indirect damages are special or extrinsic damages, which are only recovered in special circumstances attending the conclusion of the contract.

In Zimbabwe there is only one possible test that could be applied to decide whether special or extrinsic damages can be recovered for breach of contract. This test is the contemplation principle. The test applied under this principle is to check whether the contracting parties actually or presumptively foresaw that the breach of contract in question would result in the type of loss being sued for.

Case in point is that of Collective Self Finance Scheme (CFC) v Asharia (A) year 200 in which CFC contracted to buy a property from the respondent and paid a deposit. CFC later repudiated the contract and claimed return of the deposit. A, accepted cancellation and later sold the property to someone else for a lower price, and claimed damages for breach of contract. Included in the amounts claimed were claims for extra bond finance, loss of investment income and loss of interest on the original sale until property was subsequently sold. The court held, that:

i)What was being claimed was the normal contractual damage, i.e. that the respondent be put in the position in which he would have been had the contract been carried out

ii)That the first two items were claims for special damages. It had to be alleged and established that these amounts were within the contemplation of the parties. No such allegations were made, nor did the evidence support such allegations. The respondent was, however, entitled to claim interest on the agreed sale price.

Another case beside that quoted in the question (Victoria Falls & Transvaal Power Co. V Consolidated Langlaagte Mines) that helps to illustrate the concepts of General and Special damages and the concept of foreseeable and unforeseeable damages is that of United Air Charters V Jarman year 1994 in which Jarman breached his contract of employment. He was employed by Air Charter Company for a two year contract, in terms of which the company paid for certain training costs.

He had undertaken to repay a pro rata portion of those costs if he left before the two – year period was completed. He breached the contract by leaving before the two-year period was over. Air Charter Co. sought to recover special damages from him based on the fact that it would be impossible for them to find a replacement within three months and that the Company would lose certain revenue as a result.

The court held that even if the less rigorous contemplation principle was applied to decide the matter, the employee would not be liable as the parties had not foreseen or contemplated that the type of loss being claimed would result from the breach in question.

The lessons learnt from the above cases are that the courts do not have problems with the determination of general damages as these flow naturally from the breach in question. The valuation of general damages is on a pro rata basis i.e. value of the whole contract agreement less value of what has been performed.

The Zimbabwean courts use the contemplation principle to determine whether there are any special damages in a breach of contract. In both cases (United Air Charters v Jarman, Collective Self Finance Scheme v Asharia and Victoria Falls & Transvaal Power Co. v Consolidated Langlaagte Mines) the courts shot down some claims for special damages because the parties involved had not foreseen or contemplated that the type of losses that were being claimed would result from breaches before them.

NON-AWARD OF DAMAGES FOR SENTIMENTAL LOSS OR INJURED FEELINGS

The general rule in courts is that damages may not be claimed in an action on contract for sentimental loss or injured feelings. This was decided in an old case of Jockie v Meyer (1945) in which a Chinese Officer (J) on a British ship was first given a room for accommodation at Victoria West Hotel by (M) who on discovering that J was Chinese retrieved the keys from him and told him that the hotel was fully booked. J sued M for damages for injury of feelings that he suffered as the result of refusal of accommodation by M.

The judge of appeal dismissed the appeal by saying that damages cannot be awarded for injury of the plaintiff’s feelings.

It must be noted, however, that there are exceptions to this rule. For example where pleasure is to be obtained from proper performance is an important ingredient in the contract as when a photographer undertakes to take burial photos or when a travel agent makes specific representations about facilities and entertainments available at a hotel.

Case in point is that of Diesen v Samson (1971) in which Mrs D engaged S a professional photographer to take photographs of her wedding for 12 pounds and paid deposit of 2 pounds and she was given a receipt. When S breached his contract by failing to appear at the wedding or at the reception, Mrs D sued for damages for the resulting injury to her feelings. Court held that since the contract was not for commercial purposes, and that it affected Mrs D’s personal, social and family interest, damages could competently be awarded for feelings. In this case the assed damages were 30 pounds.

In short if there is breach of contract, and the contract is not a commercial one, if such breach affects plaintiff’s personal, social and family interests the courts will use their discretion in awarding damages for mental suffering should the courts think that in those particular circumstance the parties to the contract had such damages in their contemplation. In the case of Mrs D v S both parties obviously had in their contemplation that Mrs D would be enabled to enjoy such pleasure in the years to come.

References:

1. Butterworths Digital Library, Zimbabwe Law Reports.

2. Volpe Peter, Commercial Law of Zimbabwe

3. Christie R. H, Business Law in Zimbabwe

The approach the Zimbabwean courts Essay

Ring V. Arizona Case Brief Essay

Ring V. Arizona Case Brief Essay.

Facts of the case:

On November 28, 1994, The body of an armored van driver was found dead inside the vehicle. Also, there was more than $800,000 missing from the van leading police to believe that this was a robbery and homicide case. There were no witnesses to the crime except a local bystander who stated that two vehicles, a van and a red truck were speeding down the road earlier that day and had neglected to stop at the intersection where there is a stop sign posted.

Based on a tip, police were able to locate the red pickup truck and it’s owner, Timothy Ring. Police then listened to Timothy Ring’s phone conversations and quickly learned that he was involved with both the robbery and shooting. In the following days, police obtained a warrant and conducted a search of Timothy Ring’s home. They discovered a rifle and a bag full of cash in the amount of $271,681. They also recovered a letter with $575,995 written on the inside.

This amount, when added to the amount of cash recovered, added up to the same amount that had been stolen from the armored van.

A jury found Ring guilty of “murder occurring during an armed robbery”. This decision was based on the evidence obtained by the police. In Arizona, this is a capital offence. The prosecution’s case had no evidence that identified Ring as the “shooter”. However, under Arizona law at that time, a judge alone was required to determine the presence or absence of aggravating factors for imposition of the death penalty.

During the sentencing phase, the judge heard testimony from one of Ring’s accomplices who placed all the blame on Ring. He said that Ring had not only planned out the robbery, but he was also the one who had shot the driver of the armored van. The judge then found beyond a reasonable doubt the aggravating factor needed to sentence Ring to death. The judge found that the crime was committed for money and “in an especially heinous, cruel or depraved manner.” The judge then sentenced Ring to the death penalty.

Upon automatic appeal, the Arizona Supreme Court affirmed the sentence. The case was then appealed to the US Supreme Court.

Issue before the US Supreme Court:

As to the right to a jury trial under the sixth amendment, as made applicable to the states through the fourteenth amendment, may a judge alone determine aggravating factors necessary to impose a death sentence?

Holding:

No

Reasoning:

Capital defendants, no less than noncapital defendants, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.

The US Supreme Court’s Decision:

The Supreme Court decided that juries rather than judges must make the determinations that subject a convicted murder to the death penalty. This was decided on a 7 to 2 decision.

Justice Ginsburg explained the decision for the Ring case. She stated that it is unusual for the court not to follow its past decisions.

“But the doctrine is not unyielding: we have overturned prior decisions when there is strong reason for setting the law straight. This is such a case,” she said.

The Apprendi decision dictated its application to the death sentence context, stating:

“The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death”.

Justice Ginsburg concluded that the Sixth Amendment applies to both.

Significance:

This case set forth the precedent that juries, not the judge, will have the ability to exercise their discretion when deciding aggravating factors which could lead to the enforcement of the death penalty.

This decision is also significant because it invalidated death penalty laws of five states and cast doubt on the laws of four others.

It also overturned the 1990 U. S. Supreme Court decision in Walton v Arizona.

In 1990, the Supreme Court case Walton v. Arizona upheld Arizona’s death sentence law over the appeal that it was unconstitutional, and thus, violated the Sixth Amendment right to a trial by jury. Then, in 2000, the Supreme Court case Apprendi v. New Jersey ruled that a judge had inappropriately lengthened a man’s sentence after the jury was dismissed. The Court overturned the sentence, saying the trial judge using his information to increase the sentence should have been decided by a jury and proven beyond a reasonable doubt.

Dissenting Opinions:

Both the chief justice Rehnquist and justice O’Connor had the only dissenting opinions. They stated that Apprendi, not Walton, should have been overruled. Justice O’Connor said:

“Defendant’s death sentence required the judge’s factual findings. If Arizona prevailed on its opening argument, Apprendi would be reduced to a meaningless and formalistic rule of statutory drafting. This need to evaluate death penalty claims will greatly burden the courts in five states.”

At the time of this case, juries in Arizona, Colorado, Idaho, Montana and Nebraska had no role in sentencing people convicted in capital cases.

Justice O’Connor does raise a good point here. Because the presiding judge does have access to more information about the case and knows more about the defendant than the jury does, it could be argued that the judge is in a better informed position. Thus the judge could make a more educated decision than a jury could. However, law dictates that certain factors are not to be taken into account by a jury when deciding a case.

These factors may include past criminal behavior, certain evidence that may have been suppressed for a variety of reasons, or even the testimony of witnesses that is not allowed before the jury for any number of reasons. All of these factors are known to the judge and could be taken into account if allowed to decide a case on his/her own. This leads to bias and the unconstitutionality of being tried in court, but without the jury making the key determinations that make up the “Trial by jury” aspect of the constitution.

My Conclusion:

In my opinion, the US Supreme Court did come to the correct decision. If the presiding judge, and that judge alone, is allowed to make these decisions which determine sentencing, I believe there could be an unreasonable amount of bias in the judge’s decision. This is due to that judge having an extensive background dealing with the criminal element of society. Also, the judge has access to information to which a jury is not allowed when determining a verdict or a sentence.

In the case of Ring v Arizona, the jury found the defendant guilty of first-degree felony murder. Accordingly, the maximum punishment Ring could have received was life imprisonment. However, because the judge had decided there were “aggravating factors” in the crime, the judge exercised his ability to sentence the defendant to death.

The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment’s jury trial guarantee requires that the aggravating factor determination be entrusted to the jury. The answer must be yes. The jury and not the judge is responsible for determining the weight of the evidence and if there are any “aggravating factors”. This can also be seen in the case of United States v. Gaudin:

“It must be a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” (515 S Ct. 506 (1995)

In Furman v Georgia, the Supreme Court found that it must be the jury and not the judge that enforces the death penalty:

“It is insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.” (408 S Ct. 238 (1972).

Allowing a judge to decide the weight of different factors in a case is defeating of the point of the jury. The jury is there to act as an unbiased, fair, and reasonable representation of society. It is my final opinion that it is the responsibility of the jury, and not the judge, to determine the weight of evidence, guilt, innocence, or whether the death penalty should be instated for a specific crime.a

Ring V. Arizona Case Brief Essay