Some Divine Principles Here
The maxim that an accused person is assumed innocent until PROVEN guilty in a court of law – not accused, not self-confessed, but PROVEN guilty – is so now entrenched in Anglo-Saxon law that it is incorporated in the United Nations’ Declaration of Human Rights in 1948 under article eleven, section one; in the European Convention for the Protection of Human Rights in 1953 [as article 6, section 2] and was incorporated into the United Nations International Covenant on Civil and Political Rights [as article 14, section 2].
Although there are claims that it was not until the 18th Century that a FUNDAMENTAL change in English jurisprudence formally sprung the maxim on humanity, yet one sees from the Book of Genesis itself that despite God’s omniscience, He did not presume Adam guilty when He asked Adam whether he (Adam) had eaten the apple, whereupon Adam proceeded to give evidence on his own behalf that God had entrapped him with Eve. Eve further testified in God’s court that it was the Serpent who entrapped her with an ambiguous white lie. Only then were both of them punished by being asked to leave the sumptious Garden of Eden – and further to hard labor (Adam), hard child-birth (Eve) and to a creeping life (the Serpent, formerly an “upright” person.)
The next time we see God’s action in court was with Cain and Abel: again he interrogates Cain about Abel’s welfare (giving him an opportunity to defend himself), and Cain immediately questions not God’s jurisdiction but tries to assert his own right to refuse what to him was an irrelevant question: some kind of Fifth Amendment. The evidence that God asserts here is the cry of Abel’s blood (only the Divine can hear such), whereupon he banishes Cain to a marked life of ceaseless earthly wandering until God (not Man, else he himself be punished) chooses to take his life.
The final early evidence of presumption of innocence are the Mosaic laws where two or three must give evidence before a person is found guilty. Obviously, without such corroboration, the man is innocent.
So to those who disparage the principle of innocent until PROVEN guilty, beware: it has divine sanction.
Constitutional Rights
The presumption of innocence is also in the Nigerian Constitution – See Section 36 (5).
As divine matters go, the right to legal defense other than by one’s self is another matter. No where in the Bible do I read a principle where someone else helps another in his own defense. In fact, we are told that on the last day, every one must answer for his own sins. So this institution of LAWYERING must be a wholly human endeavor – and hence suspect.
Unless of course you are a Christian, in which case if you CONFESS your sins, and Christ promises to be, in fact is, your advocate with the Father. More importantly, He bears the punishment for your sins.
That is Christian faith – another matter different from what we are discussing here.
The right to self- or legal representation is in most national constitutions. In Nigeria , it is in Section 36(6)(c). However these do not equate to the right to force a particular lawyer to defend a particular accused, nor does it imply any MORAL or LEGAL force on any lawyer. After all, it is inconceivable that a lawyer can be forced to defend a person accused of killing his (the lawyer’s) own child, nor would that lawyer feel any compulsion if that accused bizarrely insists on such a representation.
That would be taking absurdity to the limit.
Confession and Guilt
I have hinted above that confession merely aids a finding of guilt – but is not guilt apriori. Evidence to establish the guilt must still be gathered – the “confession” may yet be a lie, to put himself in prison (and hence take himself for example out of a daily grind of foodlessness) or to protect a loved one.
The particular case of Lawyer Gani and Nnakwe
Chief Marcel Nnakwe, the allegedly self-confessed fraudulent fake drug dealer, is a human being with rights, as odious as his alleged crime might be. He is innocent until proven guilty, despite his alleged confession. His “confession” merely aids the prosecutors, and does not relieve them of their duty to prove him guilty. Since he has a divine and legal right to defend himself, any outrageous blocks put in his way, including to stay alive – illegal confinement, inability to get to his lawyers or his defence materials, or to his medicines, etc. – must be cleared.
Next comes the lawyer Gani. Iconic as he may be in Nigeria , he is still a human being and a lawyer, and has earned his name as a controversial person. His agreement to defend Nnakwe is part of his controversial persona. He has a right to choose who to defend and who not to defend, and bear the praise (from some people) and opprobrium (from others.) You may not choose to defend Nnakwe; I may not choose to defend Nnakwe, but Gani HAS chosen to defend Nnakwe; maybe NOT his innocence or guilt of the primary accusation, but Nnakwe’s right to due process.
That is acceptable by me.
Of Parker’s Thoughts – and Dershowitz’s – on Defending the Indefensible
For the rest of what I think about Gani’s choice to defend Nnakwe, I appeal to Peter Parker and Alan Dershowitz – see below. The latter controversial American lawyer reminds me most of Gani, as he has defended or advised alleged wife murderers like Claus Von Bulow and OJ Simpson, religious crooks like Jim Bakker, white-collar criminals like Leona Helmsley and Michael Milliken, and rapists like Mike Tyson, to name a few .
My own positions – guided by both deep thoughts – are as follows:
If Gani must defend Nnakwe, he should either do so WITHOUT TAKING ANY MONEY whatsoever, or at least not until Nnakwe is found innocent. If he takes money for representation, he should return whatever money he gets from Nnakwe either to the State or to Nnakwe’s victims if Nnakwe is found guilty. In fact, I believe that this should be a general principle, and not just applied to Gani.
I believe that that will absolve Gani and lawyers of repute like him of any accusation of unethical money-grubbing and benefiting from the ills of accused people like Nnakwe if they are found guilty.
I rest my case.
http://www.alphalink.com.au/~parkerp/essay7.htm
Peter Parker’s Thoughts
The Ethics of Legal Representation
Defending the Indefensible?
To me, the profession of criminal law is one of the most morally ambiguous profession there is. In the adversarial system, the aim is to get the best deal for a client, irregardless of how deserving he or she may be, rather than to seek all facts relating to a case and thereon to form an opinion of the guilt and innocence of the accused, and the penalty that is appropriate.
"Representation" may mean many things. In the case of an accused who did not commit the crime, the lawyer's task of demonstrating to the jury that the prosecution has the wrong person is an honourable one indespensible to the proper carriage of justice.
However, the lawyer's role becomes morally ambiguous is when the party has pleaded guilty and the lawyer is reduced to merely pointing out reasons why his/her client should receive a more lenient sentence than others. Certain circumstances pertaining to the crime may make a compelling case for a lesser sentence. If this is the case, the imposition of a harsh sentence may be unjust, and the lawyer's involvement has again aided the cause of justice. On the other hand, there may be cases where the presence of a lawyer degraded the quality of justice as the guilty receives a lesser sentence than those not fortunate enough to be represented.
A rich doctor's kid gets off with no conviction recorded, because the crime was 'out of character', 'misplaced youthful exuberance' or 'just a schoolboy prank', while a less affluent kid committing the same offence gets the book thrown at them.
There are conventions to the effect that matters between a lawyer and his/her client are confidential. There are good reasons for this. The client is innocent until proved guilty, and the onus is on the prosecution to satisfy the jury or magistrate that the accused is guilty. To help maintain this doctrine of the presumption of innocence, the accused has a right to remain silent.
Confidentiality between a lawyer and his client is one of the privileges that clients have when they engage a lawyer. It ought to be maintained for reasons outlined above. However, it is my view that lawyers, in the carrying out of their work, have obligations to justice and the public good as well as to their clients.
Such obligations may include the broader interests of justice such as fairness of penalties applied to the convicted (whether legally represented or not), the community interests (appropriateness of penalties, reasonable cost of the justice system) and fairness to others who may be awaiting trial on the same day (ie the lawyer has to put across his points quickly, they must be of substance and relevant to the case and not waste the time of all in the court room).
Let us supposing a client tells the lawyer that he committed the offence for which he was charged. Nevertheless, after discussion with his lawyer, he pleads "Not Guilty". Now, there are certain quite harsh penalties to do with perjury - or misleading a court, but the sort of lying mentioned above is not counted as accused have a right not to say anything that may incriminate themselves. However, it doesn't seem right to me that the lawyer should give such advice to the client. It is a similar situation if the lawyer has received information that would tend to indicate that his client is guilty, but which remains to be discovered by the prosecution in the cross-examination at the trial.
This is a distinguishing feature of our adversarial system, and I am not for a moment questioning it. However, if I was a criminal lawyer, representing the worst murderers in the country, and I was convinced that a client was one of them, I would want to refuse them service. Of course, for lawyers, this means going without an income, albeit one that may be tainted by payments made possible by the proceeds of stolen goods, money laundering, drugs, etc. I consider that for a lawyer to refuse to take on a case as they see little merit in it or believe that they are being lied to by a client is one of the most noble things they can do. It is also honourable for a lawyer to say to a client that their case is not very strong, and that it isn't worth wasting their own and the court's time contriving fancy excuses in order to obtain a lighter penalty that may not really be justified.
The last sentence is likely to raise hackles, as there is a view that legal representation, even of a person who lawyers consider has a shaky case is a right. Do surgeons operate on the lungs of a patient who has been a three packet a day smoker for forty years? Of course they do. The person has disregarded medical advice, and doesn't have a good chance of survival, but is still operated on, thanks to Medicare or private health insurance. After all, a lawyer's suspicion that a client is lying may be unfounded, and it is better to give them the benefit of the doubt, and take on their case.
30 November 1997
THE BEST DEFENSE STOLEN MONEY CAN BUY
P. 129-131 of “Contrary to Popular Opinion” by Alan M. Dershowitz [Pharos Books, 1992]
Should a person who is accused of stealing money be able to use that money, or any part of it, to pay for his legal defense? That is one of those questions that sounds like it has an easy answer—until you start thinking about it and about the Bill of Rights.
The first and most obvious answer is: of course not! The money is stolen. It doesn’t belong to the defendant. How can he be allowed to use it to buy anything, even a legal defense?
Then you stop yourself and remember that the defendant is merely accused of stealing the money. He hasn’t been convicted of anything.
Indeed, under our Constitution, he is presumed innocent. And if he is presumed innocent, shouldn’t he be treated as if the money belongs to him?
But if he is allowed to spend the money while he is still presumed innocent, what happens if and when he is convicted of stealing the money?
The portion that he has already paid for his legal defense cannot be retrieved—unless, of course, the law can take it back from those who have earned it through their labor. The presumption of innocence thus comes into direct conflict with the reality that most indicted defendants will, in fact, be found guilty.
In addition to the presumption of innocence, our Constitution also guarantees every defendant the right to counsel. Originally, this meant only that the government could not prevent those defendants who could afford to pay for a lawyer from hiring one. In recent decades, this right has been expanded to requiring the state to provide lawyers for indigent defendants.
The broad question posed at the outset has thus been somewhat narrowed: If a defendant can afford to pay a lawyer, but only with money that the prosecutor says was stolen, should he be considered an indigent or should he be deemed capable of paying for his defense?
In either event, he will have a lawyer to defend him. But the difference between a state-provided lawyer and a privately retained one can be considerable. The most important difference is that a defendant with money gets to choose his lawyer—within the limits of his financial ability and the availability of his lawyer of choice. The indigent defendant, on the other hand, has to take what the court or the public defender gives him.
Not all privately retained lawyers are great, and not all state-provided lawyers are bad. But for the most part, the former tend to be more experienced than the latter. Private lawyers also generally have more and better investigative resources and expert assistance available to them. Finally, in an imperfect legal system, where who you know is sometimes as important as what you know, money buys the kind of influence that can help a defendant get a more favorable plea bargain.
Until recently, there was a kind of “gentleman’s agreement” within the legal profession under which prosecutors closed their eyes to the sources of legal fees. If a defense lawyer could get money from a defendant, that was well and good. But in 1984, Congress enacted the Comprehensive Forfeiture Act, which authorizes the government to freeze all assets that may have been obtained in the course of drug and racketeering crimes. (Under the law, racketeering is defined very broadly to include many white collar crimes.) If the defendant wins the case, the assets are unfrozen. If he loses, they are confiscated.
This law has created a dilemma for lawyers and clients alike. Lawyers are reluctant to take responsibility for a long and complicated case unless they are paid up front. If the assets are frozen, this cannot be done, and their promised payment will be in the nature of a “contingent fee”—namely, they will be paid only if they win. The problem is that contingent fees are regarded as unethical—and in some states illegal—for criminal cases.
(They are permitted in accident, contract, and other commercial cases.) Few lawyers, therefore, are willing to represent clients in cases where the government has frozen the potential legal fee.
Recently, the U.S. Second Circuit Court of Appeals, which includes New York , ruled in a 2—1 decision that legal fees were covered by the Forfeiture Act. In a stinging dissent, Judge James L. Oakes argued that the Forfeiture Act, as interpreted by the majority, “not only intrudes on the individual’s right to secure counsel of his choice” but also “shakes the very foundations of our criminal justice system.”
Other courts around the country have agreed with Oakes and have permitted defendants to unfreeze enough funds to pay for a defense. The stage is thus set for a confrontation before the U.S. Supreme Court. The high court will almost certainly decide to resolve the conflict over this issue, which is so important to the legal profession and to the criminal justice system. How it will rule is anybody’s guess, although recent trends, including the decision authorizing preventive detention of presumably innocent defendants, certainly suggest that defendants will not be allowed to use frozen funds to pay for their own Lawyers. January 1988
On June 22, 1989 the Supreme Court ruled that the government can freeze the assets of a criminal defendant before trial without regard to whether the person will have enough money left to hire a lawyer. (See Caplin & Drysdale v. United States ).
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