I received a call from Jimmy [Bermingham’s lawyer]. “Bad news dude,” he said. “Werlein [the judge] has just bumped the trial date again.”
The majority view was that it was the final straw. Gary had always wanted to plead the case out, reflecting the view of his counsel. I had always wanted to go to trial. Giles had been happily plodding along in the middle. More recently, he had begun to swing behind going to trial, as we slowly built our case and he saw that we just might win against all the odds.
This had knocked him sideways, though. Debs [Giles’s wife] and Julie [Gary’s partner] were adamant. We needed to cut a deal and get home.
They saw nothing but conspiracy. Every time we looked like getting close, the judge was finding reasons to put back the trial. He knew we were stuck thousands of miles from home, and he just kept on pushing it back. And we knew from his ruling on our motion to dismiss that he thought we must be guilty.
That just increased the risk of a mistrial. Giles reckoned it was substantial, and it was difficult to argue with him. We might put on the best defence in the world, but if one redneck juror wanted to see three bankers hang, the trial would end deadlocked, and then we would be stuck around for another year, facing another set of fees which we didn’t have.
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And if we were going to do a deal, the time was now, before any possible tensions or fissures between us became evident, and played into the hands of our enemies.
It just felt such a betrayal, though. We were so close. So many people had supported us. Believed in us. And now we might just chuck in the towel after all these years of fighting. And what would it all have been for?
I began writing the headlines. We would get torn to shreds. Greedy bankers finally admit it was all lies. “See?” says Home Secretary, “I told you it was right to extradite them. How could you all be so stupid as to be taken in by their slick PR campaign?”
How could we ever look people in the eye again? How could I ever look the children in the eye again? What would I ever say to Liberty, who supported us? And my parents? Our friends?
Emma [Bermingham’s wife] had it right though. “Look, nothing’s changed. We know the truth. Your friends will always be your friends. Those who walk away weren’t friends, were they?”
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Until now, I had analysed most things through the narrow prism of self-interest. If I believed something was right, I would argue with Gary or Giles and between us we would come to a decision. The universe of interested parties was three as far as I was concerned.
Now, for the first time, I was confronted by the fact that there were actually 18 interested parties. The three of us, three partners, and 12 children. And this decision would have a bearing on all of their lives. We owed it to them to act in the interests of all.
It took me a ridiculously long time to realise what I should have realised in about five seconds flat. We weren’t fighting for the good of humanity. We were fighting for ourselves. Yes, there were issues of principle involved, but it wasn’t a life or death thing. It was about pride and reputation. I was no freedom fighter, sacrificing family to a higher cause. I was a banker who had made a whole lot of money doing a deal with a guy who turned out to be a crook. If I pled guilty I wouldn’t be letting the world down, however much it might stick in the craw.
Sometimes we adults have a way of overcomplicating things. My daughter, Jemima, managed to hit the nail on the head: “Daddy, if you just say you did it, will they let you come home?”
“Well, yes, they probably would”.
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“Well then why don’t you just say you did? No one cares, do they?”
ON PLEA BARGAINING
There can be little debate that the concept of someone who is guilty being encouraged to plead guilty and therefore save everyone the time and expense of a trial is a good thing for the administration of justice.
My objection to the US-style system of plea bargaining is that its practical implementation rewards the guilty and penalises the innocent. If you have a system where the “risk-reward ratio” is so skewed in favour of pleading guilty, then few sane people, even if innocent, will opt to go for trial, meaning that prisons will be full of the innocent.
By contrast, as a guilty man, you only have upside in an arrangement that enables you to reduce your possible punishment not only by pleading guilty, but by giving evidence against others. The more people you help to convict, the less time you will personally serve in prison. Such a system encourages people to “misremember” things in favour of the Government.
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Add into the mix that a US prosecutor’s curriculum vitae will depend upon conviction statistics, and that many prosecutors aspire either to political office or lucrative private practice as a defense attorney, and you have a toxic combination which will always penalise innocent defendants.
© David Bermingham 2012 Extracted from A Price to Pay, to be published by Gibson Square on March 26 at £8.99 and as an e-book at £2.99. It is available for £8.54, free p&p, from the Times Bookshop on 0845 2712134; thetimes.co.uk/bookshop