Wednesday, 4 February 2015

An Oath to Defend

On Sunday, 18th January, 2015, a motorcyclist was caught by an angry mob in Gboko, Benue State and accused of theft. He was beaten, stripped naked, & compelled to ride around the town on the allegedly stolen bike, he could have been lynched by the angry mob but for the timely intervention of the police who came to his rescue and took him to their office. 

Unlike the above experience, it is not every victim that lives to share his encounter with lynch mob. Take for an instance the pathetic story of the four (4) students of the University of Port Harcourt in Omukini Aluu area of Rivers State, they had been accused of robbery and were lynched by a mob which passed instant judgment which they deemed appropriate for the offence and chose to also be the executioners.
This instance is just one among many occurrences where the victims died without being given the opportunity to be heard.

In some other cases, a lynch target may be able to find his way to the court, but since he is a societal outcast who is being tried for some heinous or treasonous offences, he may struggle hard to get a seasoned Criminal Law Expert, and even when he eventually finds one, the society wonders if their trust has not been betrayed by the lawyer who they think is after his pocket than the common interest of the society in fighting against the one who has been adjudged as an outcast in the people’s court of moral conscience. 

Why do lawyers defend the despicable? Why do we risk our life, family, and everything else to pitch our tent with persons that have been accused of one offence or the other? We represent them because of our subscription to the view that “criminal law [ought to be] built on the principle that it is better that 10 guilty persons escape than for one innocent person to suffer unjustly”, we represent them because we believe that in a constitutional democracy, every Accused person ought to have the benefit of a day in court. This is a necessary evil for most of us; not because (or until) we believe in the innocence of the one we are representing, but because, we have a duty to defend even the most despicable of men. This duty is best captured in the words of my distant colleague; Adam Stone, a Criminal Defence Attorney in Ohio, U.S.A. in his famous article titled  WE ALWAYS DEFEND, where he stated thus:

“… In the end, there is nothing more sexy or lucrative about defending those accused of crimes. It is a passion. It is an obsession. It is the recognition that we have a duty under the Constitution to work harder and longer to give our clients a fighting chance against the heavy hand and unlimited resources of the State.”

He then moved on to compare the insurmountable task of the Criminal Defence Lawyer with the Old Testament story of Moses as he neared Mount Horeb to have a glance at the bush that was burning but not consumed. He concluded most brilliantly this way:

"It is the same for the true criminal defence lawyer. We have enlisted in the fight for the duration. We cannot turn back. We are given to stand on behalf of those who cannot stand for themselves, and we fight upon the lines that we have drawn, defending to our last breath for the place whereon [we] stand- a court of law- is our holiest ground”

Assisting a person charged with criminal allegations to journey through the rough edges of the law could sometimes be a very lonely ride; gathering facts and details to buttress the innocence of the Accused, candles lit at night and head buried in research, meals missed, and family abandoned; the more we push into it, the more we feel so involved in the whole event, and while we do not lose sight of our duty to assist the court to dispense justice, we are mindful of the need to defend the rights of the Accused to fair hearing, public trial, presumption of innocence, and right to a competent Counsel (without which the potential for overreach by the Government will be great). Another distant colleague James Novak an Arizona DUI and Criminal Defense Lawyer who I have benefited immensely from narrates the importance of the protection of the rights of an Accused this way:

"Without the order of laws and the rights of an Accused, we would turn back the clock hundreds of years in our advancements in human, civil, and criminal rights. We would be a society of lynch mobs where innocent people would face horrific executions at the hands of the prejudice and corrupt… The criminal courts must [therefore] allow for a level playing field where both sides have the right to present evidence, and where the Accused has a right to confront their Accuser and allow a Legal Advocate to be their voice and defend their charges” 

I sometimes wonder if our work is not a replica of what our Lord Jesus does in the Heavens; for far be it from the best of us to turn down a case because we believe in the guilt of the Accused person. Even if or where the guilt of the Accused is sufficiently proven, the hallmark of a seasoned Criminal Defence Lawyer is the ability to enter into the hallowed walls of the courtroom to plead the cause of the Accused within the bounds of acceptable practices by way of advocacy of persuasion and the instrument of Allocutus so that the ends of justice does not become an eye for an eye (or even two), but rehabilitation; which is the hallmark of a democratic society

The Supreme Court has held in the case of Military Governor of Imo State & Another v Chief Nwauwa [1997] 2 N.W.L.R. (Pt. 490) 695 at 706 that “where a person is accused of criminal offence, he must only be tried by a court of law established under the constitution where the complaints of his prosecutors can be ventilated in public in accordance with the law, and where his constitutional right of fair hearing would be assured.” When a person commits an act or inaction which necessitates public sanction (even when he is caught in the act), it may be strange to advocate that he is not guilty until proven guilty. Even in strict liability offences, a court of law ought first to declare the guilt of an alleged offender and then impose fine. 

In most cases, people’s sentences of guilt on apprehensible persons are motivated by the “act” or “inaction” which is repulsive, hardly is the “intent” which is in other words called “guilty mind” weighed. What the court does is to leverage its force and power to scrutinize the guilt or otherwise of an Accused person.
In the light of the foregoing, here is an issue which may stimulate questions in the heart of every reader: In Nigeria, it is a common practice for road warders to create traffic offences, define the offences, and implement those offences thereby resorting to “executive promiscuity” by acting as the law maker, executor, and interpreter. Other than to issue notice of offence, does doing otherwise not amount to a subtle jungle justice?      

*Eyitayo Ogunyemi is an Associate at Falana & Falana's Chambers. He is the initiator of "The People's Parliament"- a forum committed to imparting the society with the knowledge of their constitutional rights and duties. Eyitayo is passionate about instilling legal knowledge in the masses and is a core advocate for a knowledge based economy.  Questions may be directed to (+234-806-0623-454) or asked directly in the comment box below.