Author Archives: Daniel Ehighalua

Is Massachusetts Set to Reconsider Basis for granting Legal Aid?

Posted on March 28, 2012 | Leave a comment

If David Linsky (Massachesetts State Rep) gets his way with his proposed new legislation, legal aid might be considerably withered down for certain types of offenses. The time tested basis for grant of legal aid – ‘means and merits test’ – will no longer, in themselves, suffice. Not even the ‘sufficient benefit test’ will be available to a sizeable chunk of cases, which will not fall within the proposed new basis for grant of legal aid. The legislation as it is being proposed, intends to make the basis of provision of legal aid, not solely upon the economic condition of the defendant, but whether the defendant is facing jail time or not. This effectively becomes the new and overriding test for granting financial assistance.

The arguments, for and against, continue to swirl; but one thing appears almost certain, this is one way of depriving thousands their right to legal representation. The right to legal representation is one of the canons for a fair trial. Read a report of the pros and cons herehttp://www.lawcrossing.com/lcviewblog.php?id=20075&utm_source=WNW&utm_medium=Email&utm_campaign=t_15327–dt_20120327-cid_34015-Did_121-ad_attorney&ces=12705727&draft=121&cid=34015#

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Posted in Defense lawyering (good and bad), Editorials/Opinion, Legislation

Ethiopia: A New Criminal Policy in Place to Combat the Scourge of Wrongful Convictions

Posted on March 28, 2012 | 1 comment

Ethiopia has taken a giant step in reworking its criminal policy. Until now, no articulate policy document or guidance existed, that provided a clear cut approach to criminal procedure and process, indeed, to criminal law reform. In connection with the wrongfully convicted, the new policy document states inter alia: ‘ If a person who is convicted of a crime and subjected to a death sentence imprisonment, or a fine, is later found actually innocent by a court through post conviction proceedings, the person, their heirs, or their spouse is entitled to a commensurate compensation of moral and material damage suffered due to the decision which subjected the person to the sentence’

Amongst other novel scheme, the policy makes provision for plea bargaining. Attempts were also made to push for the retrial of persons initially wrongfully acquitted, but evidence later emerges which implicates and conclusively prove their guilt. It failed. If someone is wrongfully acquitted and later evidence proving his apparent guilt is discovered, the prosecutor under the usual practice, is not given the right to demand a revision of the first verdict acquitting such defendant. Prosecutors are still trying to come to terms with the policy. Read further commentary herehttp://allafrica.com/stories/201203270611.html

It will be sometime yet for the full impact of this policy to percolate down the system of administration of justice in Ethiopia, given the very ‘conservative’ nature of the society, and a constrained political environment.  Still, it is a good start.

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Posted in Reforming/Improving the system

Trayvon Martin, as Metaphor for Due Process and Justice

Posted on March 24, 2012 | 2 comments

The facts and facts in issue are still foggy. However, there is a groundswell of ‘opinion’ in the public domain, tending to suggest that the circumstances and events leading up to the death of young Trayvon Martin, will severely test the due process, policing techniques and strategies, and importantly, why that process is not playing itself out, sooner than most people expect. Parties must eschew playing the ‘race card’ because that will not be the real lesson to be learnt, rather, this is about justice for a young boy brutally gunned down in his youth. As all parties to this crime – the victim and the alleged accused- are busy marshalling their cases, it is important we dont lose focus of the issues, nuances and process; because, ultimately it is the ends of justice that will be best served if we keep our focus. Read and watch CBS News video here http://www.cbsnews.com/8301-505263_162-57403856/trayvon-martin-case-escalates-into-a-cause/

The lessons of the last 4 decades has taught us to be very wary and circumspect of eyewitness accounts; expert evidence/witnesses, science and forensic. The legal maxim still holds true today, and in relation to this case, that, it is better to set 1000 guilty persons free, than allow one innocent person to be convicted and sent to prison. Mindful of this dictum, it behooves the authorities to set legal protective mechanisms in place, whilst asking probing questions, engaging with the law and ensuring all revelant facts are unearthed and placed before a proper judicial authority -judge, jury and grand jury. As the facts continue to unfold, we must be guided by fairness and the law, in order to avoid convicting the innocent. On the flip side, the full weight of the law must be brought to bear on George Zimmerman if he is found guilty of killing Martin Trayvon. This is one killing too much!

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Posted in Editorials/Opinion, Reforming/Improving the system

Matthew Puckett: The last hour or two, or Reprieve!

Posted on March 20, 2012 | 4 comments

It now appears down to the US Supreme court to decide the fate of Matthew Puckett. His lawyers last week filed a petition with the supreme court for a reprieve. In the next couple of hours -that is, if the supreme court hasn’t already decided the petition for stay of execution, one way or the other; the State of Mississippi will either carry out the execution of Matthew Puckett, or grant him reprieve. Read views by Matthew Puckett himself and his supporters in The Republichttp://www.therepublic.com/view/story/c1713c9ba2024f66b35f204c243658d8/MS–Mississippi-Executions/

But there seems to be grave concerns from responsible quarters, that the trial leading to the conviction ‘may’ have been flawed in some way and therefore unsafe. There are procedural concerns; the quality of legal advice and representation that was available to him; circumstantial evidence which points in other possible directions.  Matthew Puckett continue to deny he is guilty. Hear him – ‘Like a lot of people, I thought if someone was convicted of a crime, they were probably guilty. But if this can happen to us, it can happen to anyone’.

The real concern here is the possibility of a wrongfully convicted person being executed; where that decision has been aided and abetted by the justice system. Jim Craig of the Louisiana Capital Assistance Center (a non profit law office) thinks the appeal was ‘fake’. He said further ‘We are here to, among other things, expose a fraud at the center of the Mississippi system of justice’.

We all hope there is still enough time left!

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Posted in Capital punishment, Defense lawyering (good and bad), Editorials/Opinion, Reforming/Improving the system

Nigeria: Extra-Judicial Killings and Police Brutality Spiralling

Posted on March 17, 2012 | Leave a comment

The rise and rise of the spate of police brutality in Nigeria, not only poses dire consequences for the stability of the Nigerian polity, but undermines the policing and judicial processes. In 2009, the Nigerian police was fingered in what turned out to be the extra-judicial ‘execution’ of Mohammed Yusuf, even though he was in the custody of the police and in cuffs. He was shot repeatedly at point blank range. Mohammed Yusuf was acclaimed to be the leader of the Boko Haram sect. Read BBC report here –http://news.bbc.co.uk/2/hi/africa/8544131.stm

The situation appears to have significantly deteriorated today. A detailed new report catalogued by the Daily Trust newspaper, demonstrates that the assault, brutality and extra-judicial killings is still going on under the watch of the Nigerian police. Read report here –http://weeklytrust.com.ng/index.php?option=com_content&view=article&id=8788:extra-judicial-killings-on-the-rise&catid=40:cover-stories&Itemid=26

It is hard to fathom how this situation can be reversed if the National Human Rights Commission; the Police Service Commission and the Judiciary dont take their statutory responsibilities seriously.

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Posted in Police conduct (good and bad), Reforming/Improving the system

March 20th: Matthew Puckett to Keep a date with the hangman’s noose

Posted on March 16, 2012 | 4 comments

Matthew Puckett is slated for ‘execution’ by the state of Mississippi on March 20th, 2012. The death penalty – regardless of the heinousness of the crime – continue to raise dust and controversy wherever it is applied worldwide. It is about time we re-engage with the rationale, the humanity, as well as the emotional and spiritual arguments against the death penalty; especially, when it potentially raises the possibility, however slightly, of a wrongfully convicted person being taken to the gallows.

Jamie Arpin-Ricci (Author and Pastor) makes a powerful, emotional and ‘reasoned plea’ why Mathew Puckett should be spared the guillotine.Read herehttp://www.huffingtonpost.com/jamie-arpinricci/death-penalty-is-not-christian_b_1341706.html There is still enough time left to stretch the law to its limit. How you may ask? By signing the petition or contacting Mississippi’s Governor, Phil Bryant. A link is provided at the penultimate paragraph of the article

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Posted in Capital punishment, Commissions/Innocence Commissions/Governmental Case Review Agencies, Reforming/Improving the system

When is an Expert NOT an ‘Expert’?

Posted on March 14, 2012 | 2 comments

The last two decades revolutionarized the science of DNA, forensics and technology, especially as it applies to investigation of crime. It is safe to assume that the innocence movement rode on the back of science to drive home the grave injustices wrought by the justice system. But there are pitfalls. As the science develpoed exponentially, it became a field open to all manner of experts; in some cases, trials where won and lost on the back of the ‘battle of experts’. Thanks in part to newer technology and scientific discoveries, we now know better to be wary of expertise that scatch the surface.

In the March 2009 study carried out by Prof. Brandon Garrett and Peter Neufeld and published in the Virginia Law Review, they concluded that, in 60 percent of those wrongful conviction cases, forensic analyst gave ‘invalid testimony that overstated the evidence’. Invalid, he asserts, meant that the testimony was unscientific or contrary to empirical data.  ‘Just because a wrong statistics was offered, does not mean that the testimony  neccessarily caused the wrongful conviction. However, these powerful examples supports efforts to adopt and enforce scientific standards governing forensic reporting and testimony’

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Posted in Junk science

Why Do Innocent People Confess?

Posted on March 12, 2012 | 4 comments

This question has puzzled criminologists, psychologists and criminal lawyers for  centuries. It goes against the grain of all rational permutations, why a person would, on his own ‘volition’ own up to a crime he did not commit. Prof. Mark Godsey succintly restated the befuddling conundrum this way: ‘The idea that a suspect would falsely confess to a crime that he did not commit seems counterintuitive and nonesensical. Psychiatrists and social scientists are examining the reasons why false confessions occur, and we have a long way to go before we will have a complete answer’.

David K. Shipler in his article in the New York Times of February 23, 2012 attempted to grapple with the question. He identified shoddy police investigation; suspects apprehension and fear of the system – ‘They are susceptible to suggestion, eager to please authority figures, disconnected from reality, or unable to defer gratification’. In the case of children, he states: ‘Children think they will be jailed if they keep up their denial and will get to go home if they go along with interrogators’. As for adults, he opined that ‘Matured adults of normal intelligence have also confessed falsely after being manipulated’.

The penultimate and concluding paragraphs offers 2 suggestions which I consider apposite. He says –

1. ‘The police could be prohibited from lying about nonexistent evidence; from inducing a suspect to imagine leniency; from questioning minors without a parent or a lawyer present. They could be required to corroborate a confession with stringent evidence:

2. Finally, post-conviction challenges of confessions could be assigned to judges and prosecutors other than those who tried the original cases. The natural unwillingness to admit a grave error should not have to be overcome for justice to be done’

The full text of the article can be read herehttp://www.nytimes.com/2012/02/26/opinion/sunday/why-do-innocent-people-confess.html?pagewanted=2&_r=1&ref=falsearrestsconvictionsandimprisonments

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Posted in False confessions, Police conduct (good and bad)

‘Wrongful Convictions and the Accuracy of the Criminal Justice System’

Posted on March 9, 2012 | 3 comments

The above title is taken from the feature article by Prof. H. Patrick Furman. (Patrick is a Clinical Professor of Law in the Legal Aid and Defender Program; and a Director of Clinical Programs at the University of Colorado School of Law). It is amazing how the issues we contend with today has always been there with us. The causes, effects, consequences and impact has always been the same. 

It’s like we never noticed. Yes, never noticed, until we look more intently at the skewed nature of justice; and how some unfortunate folks are at the receiving end of society’s negligence, indifference and sometimes, outrightly living in denial. Prof. Patrick’s article is well researched. Read the entire piece in ‘The Colorado Lawyer’ here http://lawweb.colorado.edu/profiles/pubpdfs/furman/03SeptTCL-Furman.pdf

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Posted in Book recommendations/discussion, Editorials/Opinion, Scholarship

‘Bryan Stevenson: We need to talk about an injustice’

Posted on March 5, 2012 | 4 comments

This 23minutes 41seconds talk by Bryan, will simply blow up and open your mind to a whole new perspective of crime, society, criminal (in)justice, mass incarceration, death penalty, ‘identity/race’ question in the United States. The opposite of poverty is injustice. In a sense therefore, this can be replicated mutatis mutandi whether in the United States, Europe or Africa. It demonstrates clearly, there is work to be done. It was also striking to know that there is no death penalty in Germany. The entire footage can be viewed here.

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Posted in Exonerations, Reforming/Improving the system

Corruption in Nigerian Courts that Leads to Wrongful Convictions

Posted on February 28, 2012 | Leave a comment

The long arm of the law was finally long enough to nab former Nigerian Delta state Governor James Ibori. The investigation and trial in the UK lasted more than 7years before a conviction was secured. Well, technically he was said to have pleaded guilty for the charges to be dropped. One and the same you might say.

The UK conviction however exposes the current state of rot, incompetence and corruption within the Nigerian bench. Or, how else do you explain the clean bill given to Ibori, on same or similar charges by the Nigerian high court, for which he has now finally been convicted and awaiting sentence on the 16th of April? This initial wrongful acquittal is emblematic of the problems that leads to wrongful convictions in Nigeria, where justice is dispensed to the highest bidder, whilst indigent accused persons languish for years in detention centers. For a fuller report, read Andrew Walker’s report on BBC news herehttp://www.bbc.co.uk/news/world-africa-17184075

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Posted in Political cases, United Kingdom

Eyewitnesses: As Certain as they were Wrong

Posted on February 25, 2012 | Leave a comment

One of the imponderables of behavioural science,  is how we remain ‘certain’ of uncertainties. A lot of research work in this area of psycho-analysis still remain work in progress; still police and state prosecutors continue to place premuim, sometimes sole reliance on evidence of eyewitness(es) like they were ‘gospel truths’. It is interesting how what we think we know, saw or even percieve can be the diametric opposite. We are still a long way from developing a body, or set of scientific knowledge or proof to achieve exactitute with our conclusions. The last 2 – 3 decades witnessed such phenomenal leap in forensic science, biometrics, DNA and technology that we still dont yet know all that we need to ‘know’.

The New York Times columnist Adam Liptak in his article entitled ’34 Years Later, Supreme Court Will Revisit Eyewitness IDs’ made certain profound and provocative analysis and conclusions worth reading. The issues raised continue to be relevant in our search for justice for those unjustly treated by the system; or victims of the tunnel visions of prosecutors and shoddy investigative work by the police. The full article can be accessed and read here at http://www.nytimes.com/2011/08/23/us/23bar.html

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Posted in Eyewitness identification, Forensic controls, Junk science

Is the ‘Legal Aid Architecture’ failing Nigerians?

Posted on February 24, 2012 | 2 comments

The statistics are grim. 65 percent of inmates in Nigerian prisons have never been convicted of any crime. Waiting trial period has increased dramatically from 5years to upwards of 10years or more. The police and prison authorities continue to trade blames. Only one in seven inmates awaiting trial have access to private legal representation. Most prisoners are too poor to engage the services of a lawyer. To read more click here www.pmnewsnigeria.comThe shame of a nation

This situation exactly was the objective of setting up the Nigerian Legal Aid Council in the mid 70s: to provide free legal representation, assistance and advice, together with alternative dispute resolution services to indigent prisoners. Read more of the Council’s stautory responsibilities here www.legalaidcouncil.org.ng The Council has been struggling to make its impact. Admittedly, the Council’s constraints are primarily funding and capacity.

The recent passage and Assent by the President to the new Legal Aid Amendment Act 2011, has been hailed as one way of providing the needed impetus for the Council to act pro-actively, and take their responsibilities more seriously. The Act contains a lot of innovative provisions and strategies for tackling not only the knotty question of legal representation, but addressing the quality of justice delivered. It is still early days to make a definitive impact assessment. One thing is certain though, the Council will need to sit up and justify the tortuous process of ensuring that the 2011 Act was passed into law. No more excuses. Tens of thousands of prisoners are languishing in jail houses, in utter violation of their constitutional rights.

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Posted in Defense lawyering (good and bad), Legislation, Reforming/Improving the system

Gallery

Trial by Jury: Is It About Time for Nigeria?

Posted on February 17, 2012

Nigeria’s adversarial justice system, pitches the prosecutor against the defense, in a fierce evidential ‘duel’ as to the guilt or otherwise of an accused person. That leaves a stand-alone bench to determine – on the basis of the weight of … Continue reading →

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