Chapter 19: Chapter 19
After the lecture in Homicide, Ama Donkor, a final year student walked to the Lecturer. “Good evening, Prof.” Ama splashed these words across the lecturer’s face. The lecturer turned her attention to her, smiled and respond-ed. “Yeah, Ama, how are you?” Ama responded shyly. “I am doing fine, Prof. Indeed today’s lecture was enjoyable.” “Great! Thanks for the compliment. I am glad you enjoyed it.” Her countenance turned serious instantaneously as if stroked by a long rope used to chastise cattle for grazing. “Yes Ama, you called earlier to have a word with me concerning Jobson Martinson. Can we talk over it at my office?” Ama nodded in the affirmative. She gave a hand to the Professor by collecting some bunch of files from her and followed the latter silently out of sight.
They came out of the Elevator at the fifth floor of the twenty storey Law Faculty Building. They walked through the corridor and stopped in front of a door with the in-scription firmly engraved on a tin film as:
Dr. Abena Agyeiwaa
Professor of Criminal and Homicide Law
Director of the Institute for Gender and Justice
Office hour’s arrangement is regular drop-ins hours and by appointment
Telephone +233-0-510-366-231, +233-0-940-490-887, +233-0-450-663-700
EMAIL:agyeiwaa@abenakwabena.com
WEBSITE: www.Abenakwabenalaw.com
She opened the door and ushered Ama in, who found a seat close by a round table. The professor left Ama be-hind to the wash room. Traditionally, it was normal for students to contact their professors outside lecture rooms to demystify lecturer-student relationships. This was important, since professors are very important as-sets in the academia of which students should take advantage of, while still in school. Interpersonal interaction in less-formal settings could result in greater understanding of concepts taught in class. It also helped put students at ease in class and therefore resulted in more and better classroom engagements. Of course, whether, in fact, office hours were beneficial in such ways depended on the personalities and emotional intelligence of the students and professors involved. In this particular instance, the issue was not about course work but personal matter concerning Ama and Jobson. Prof. Agyeiwaa came back to join Ama on the desk. She sat on a chair opposite, took a file on the table and rummaged through. She picked some paper leaflets and quickly read through while Ama watched in sombre.
“Now Ama, I am all ears. What do you have to say?” She inquired. “Yes Prof., l have heard that you are the lawyer handling Jobson’s Appeal case.” Prof. Agyeiwaa reacted. “What Jobson are you referring to?” “Prof. I am talking about Jobson Martinson, the bloke who was wrongfully convicted of the murder of the Uber driver.” Prof. Agyeiwaa was startled. She stopped everything she was doing and momentarily directed her gaze at Ama. She probed to know the mind of Ama. “Ama, tell me more. What is your interest in the Jobson’s case?” “Not really, Prof., Just that I felt justice has been misapplied and the young man was not represented well in that case.” Ama replied. “What is your point?” Prof. Agyeiwaa asked. Ama pushed her chair forward to position herself properly be-hind the table. All along the Professor was observing every move of Ama with nonchalant silence. She seemed to have developed keen interest on what she had to say. Perhaps it will help her prepare the Motion for Reconsideration in the Appeal letter, she thought.
As an experienced legal scholar, she knew that a good Motion for Reconsideration was perhaps one of the most crucial illustrations within an Appeal Letter; due to the fact that appeals will only be heard if the regulatory appellate body acknowledged that legal defect existed with regard to the initial decision. Indeed applicants will be required to clearly, functionally, and truthfully express the legal defect presumed to have taken place in order to open a case for appeal. A citation of procedural mistakes, oversight, and unconstitutionality was considered to be the most salient information within an Appeal Letter. She needed to listen to as many views instead of just relying on personal opinions and biases.
Ama began, “the accused had categorically denied his guilt in this particular case and yet the Judge did not paid heed to it rather slapped the ultimate punishment to the young man. That is not fair.” The Law Professor giggled and started laughing loudly. “Ama, in law complete denial alone is not enough to justify innocence unless there is a strong alibi to support it.” Ama tried to protest. "There was no way Jobson perpetrated the crime that he was accused of. In fact, he was asleep in his room at Cockingdales hall from 8:00 PM till the next morning. I had brief contact with him during the evening but parted company about that time, of which I went home." However, the Professor disagreed with Ama’s position. “Yes, it is a fact that you parted company with the accused at 8:00 PM, but what prove do you have, for sure, that he went to his room to sleep?” “Prof. I know Jobson very well. I am convinced on what I am saying.” Ama explained.
“Sure, sure, Ama. You have a point there. However, the Jury considered all those facts before delivering their verdict.” Prof. summarised and continued, “Ama, I understand your position in this circumstance. But, let me use this opportunity to brief you on some of the potential grounds for appeal in criminal cases. These include legal error, juror misconduct, procedural error and ineffective assistance of counsel.” Ama was seen nodding and smiling. “Yes Prof. I remember you mentioned the grounds for appellate action by a convict during Criminal case lecture last semester. You said that legal errors may result from improperly admitted evidence, incorrect jury instructions or lack of sufficient evidence to support a guilty verdict. In fact I am hundred percent convinced that there was insufficient evidence to support a guilty verdict on Jobson’s case, which is a strong ground for appeal.” “Hahahahaha…, Ama, do not count your chicken before they are hatched.” Prof. Agyeiwaa said joyfully. “In any case, at this juncture do you have evidence to overturn the earlier verdict? Like I said earlier, will you agree to alibi him?” Ama was very silent momentarily, figuring out her next words to spew out. Nonetheless, once a teacher, forever a teacher. The Professor was eager to demonstrate her skills in law and facts as well as her teaching prowess. She began to lecture Ama a little bit in the ‘art of law’. “To grant the appeal”, she started. “The appellate court must find out whether these errors you are talking about really affected the outcome of the case. If the errors would not have changed the verdict, they are considered harmless, and the conviction will stand. A conviction may also be appealed if the defendant reason-ably believes that the jury conducted itself improperly during deliberations or the trial itself. Jury misconduct includes the use of experiments, drug or alcohol abuse during deliberations or trial, and improper communications between jurors and witnesses or counsel. There was even an issue of the jurists not sworn in during the High Court trial. Finally, criminal defendants often appeal their cases when they feel that they were not provided with adequate representation. To succeed in an ineffective assistance of counsel claim, the defendant must typically prove that but for their counsel’s actions, the outcome of the case would have been different. In fact, in Ghana, all the points raised are good grounds for appeal apart from the ‘ineffective assistance of counsel’. The reason is that, in a trial case if a person feels uncomfortable with a lawyer’s counsel, he or she is at liberty to change counsel. Actually, legal error is the most common ground for appeal in a murder case, particularly when the Judge does not direct the Jury as to the fact that the case could also be manslaughter; then the victim can appeal on grounds that the judge didn’t properly address the jury. So when the judge is addressing the jury, the rule is he or she must state the fact as they are and even if he or she is going to be bias, the bias must be in favour of the accused. In an instance, where the accused committed the crime, the Judge can still go ahead and state the possible defences to favour the accused. In the DONOVAN (1934, 2 KB 498, per Swift J) case, which we discussed in class, do you remember the facts?” “Yes Prof., I do remember.” Ama Chipped in. “The appellant was charged with caning a girl for sexual gratification. He pleaded that the girl consented to the act. In summing up, the trial judge directed the jury that ‘consent or no consent’ was the vital issue.” “Good, Ama. You have cited a very good case. You could see under the Holding of that case, the jury was misdirected by the trial judge. The question should have been put to the jury whether blows were likely or intended to do bodily harm. If these were answered in the negative, then only would it had been necessary for the jury to consider the next question whether the prosecutor has proved absence of consent. It is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved; consent is immaterial. If an act is malum in se, consent cannot convert it into an innocent act.”
Prof. Abena Agyeiwaa, Esq. sat up and walked to pick a book on Homicide from a shelf stacked to the opposite wall. She flicked through, while walking to sit down. She read aloud a portion in the book. “In an appeal case, the appellant has few options remaining. First, he or she may file a Motion for Reconsideration with the Court of Appeals, according to Rule 8-605. The second option is to file a ‘Petition for Writ of Certiorari’ with the Court of Appeals. Certiorari is Latin, meaning ‘to be informed.’ In Ghana, this Petition is a formal, lengthy written request to the Court of Appeals asking for judicial review of the decision handed down by the Court of Appeal. The Court of Appeal has significant discretion in granting appeals, accepting fewer than 20% of all petitions. If an appellant has a sufficiently unique legal issue and review is desirable and in the public interest, the Court will issue a writ of certiorari and the parties will argue the case in a way similar to the procedures followed in the Court of Appeal. If a conviction results from a defendant’s guilty plea, the defendant does not have an automatic right to appeal his or her conviction. In most cases, an appeal will be heard only if the defendant is granted permission to proceed by the appellate court. Criminal defendants who were convicted by a judge or jury at trial, however, have an absolute right to appeal their convictions. Additionally, any Country which enforces the death penalty allows an automatic appeal of cases involving a death sentence. If a court acquits the defendant, the prosecutor may not appeal the verdict. Appealing a verdict of ‘not guilty’ would violate the Double Jeopardy Clause. Prosecutors may, however, appeal all pre-trial rulings and decisions regarding the admissibility of evidence at trial.” Lawyer Agyeiwaa attempted to elaborate the read passage a little to Ama. “In this instance, Jobson is entitled to appeal because he was convicted by a jury and sentenced to death.” She said sadly.
Ama nodded cheerfully, while tapping her right foot rhythmically. “Good, there seems to be a mirror of hope out there.” “Certainly, certainly there is. To be honest with you, Ama, when the death penalty is invoked for any punishment for a lost case, the appeal process may be the only saving grace to overturn or stay the conviction for the individual sentenced. Through proper legal representation and proof to assist in the appeal, the convicted person may follow through and remove the death penalty from its conclusion. For Jobson’s conviction, he is permitted to have an appeal for various reasons. The appeal process could find the much needed evidence that proves he did not commit the crime. This method of findings may show a not guilty conclusion when enough information is gathered and the right legal processes are followed to their logical conclusions.”
After a brief pause, the Law Professor continued to ex-plain her point. “Sometimes it takes more than one appeal to overturn such convictions, but these are never more important when life is on the line. Actually convert-ing Jobson’s death penalty is crucial to ensure he did not die before his time.” Ama interjected quickly, “Prof., truly what do you think will premise this whole appeal case?” “Relax, Ama! Just listen to me! I am pounding the sumptuous fufu, but you are drinking the soup. This is where I am coming to next.” Prof. Agyeiwaa filled a glass of water from a plastic jar, sipped and continued whilst holding the glass. “There are several grounds for appeal in criminal cases. Some of them include legal error from improper admitted evidence and insufficient evidence to support a guilty verdict, juror misconduct or incorrect jury instructions and ineffective assistance of counsel. In fact, in Jobson’s case, I have detected an error in the guilty verdict. That is what is going to serve as the basis for the appeal.”