Tag Archives: criminal procedure

no, its not like boston legal

You can read the question here

 

Another mention happens.

 

8 months after being charged in court the trial is about to begin.

Hearings are heard after all the mentions and this one comes up. The ceo is called to give his evidence.

He is asked all the relevant questions by the prosecutor. he testifies as to how the system works, he talks about the security measures that are used, he gives evidence as to how the theft was discovered, finally he introduces pages and pages of paper evidence as to what was stolen, how much and on what days. 2 hours later, which is how long it typically takes to give evidence in chief in a complex case such as this, it is already lunchtime and the magistrate calls a break. There is another hearing later in the afternoon, a file that was opened back in 2008 and they cannot continue until the next year.

 

The almighty exchanging of diary dates pushes things forward by yet another two months, the CEO is consulted and it seems he will be gone for the whole month of March(December not being a real month in Kenya it was not used in the calculation.) April 21st for the cross-examination. Mention on March 25th.

 

Come April 25th and it seems that Justina has transferred to a different job, or being promoted, or emigrated, or died. She’s just not there anymore  and instead there is a brash young man taking her place.

“as you are a new prosecutor would you like to continue from where was left off or take evidence in chief again?”

“yes, your honour I would like to take the evidence in chief just to refresh the memory of the court and make sure that all the facts are correctly presented.”

A two hour re-run later and diaries are out yet again. June 22nd 2015 works for everyone and Lex spends the run-up to this date preparing his questions for the cross-examination. The first rough draft looks something like this.

What led you to believe Joyce was involved in the theft of the money?

How many people have access codes of the kind you described?

Wouldn’t it take a person of exceptional computational skill to perpetrate such a theft?

To your knowledge does Joyce possess such computational skill?

Did your investigations probe further into your other employees?

Do you remember a Christmas party that took place in December 2013?

Can you confirm that as the morning took over you were in a state of inebriation?

Do you remember my client turning down your sexual advances?

Would other employees at the party remember this happening?(will probably be objected to and withdrawn if not, good)

Are you punishing Joyce for this?

Then can you tell me how a woman whose computer skills are limited to office management would have the technical knowledge to rig such a complicated scheme as the one you described in your witness statement?

 

-on a side note there’s a great scene in a few good men

https://www.youtube.com/watch?v=8hGvQtumNAY

the one with the line YOU CAN’T HANDLE THE TRUTH!!! I’m not sure how possible this can be in trial. However I have seen witnesses getting tired and angry after being cross-examined for a long time. Anyone would get tired and angry, imagine having an argument with a person who frames their questions so that a yes while being the truth points to a falsehood because you need to qualify what you are saying. You stand up in a courtroom for an hour and he endlessly needles you. Makes sure you can’t explain yourself. Makes sure you look stupid. You can hear laughs from the gallery. The whole time he looks smug calling on the magistrate to control you and you begin to think that the whole system is against you. On top of that he begins to question your sexual attractiveness. This may be something that the CEO is touchy about. Worried that women only want him for his money and this makes him dislike any imputations on his sexual attractiveness to women- there is no YOU CAN’T HANDLE THE TRUTH moment though life isn’t that neat plus the truth is Joyce is guilty as charged.

 The hearing is done for the day. A mention is set for august the 10th 2015. At this mention due to the juggling of diaries no further hearing is set until October 30th when the prosecution will call its 2nd witness…. 20 months after Joyce was charged.

 

The second witness is the investigating officer assigned to the case. On the day of the case Lex is there, Joyce is there, the investigating officer is there. In fact it looks like it may move on today. There is one person missing though and this is the magistrate. Everyone has been sitting in court awaiting the magistrate when one of the court clerks shows up. She smiles at a few of the lawyers she knows, trades barbs and flirts them. Then she says at the top of her voice that the magistrate is away on a conference so everyone is called forward to take a date when they can have a mention on the week of November 15th. Lex rushes forward but can’t quite get there because the legal profession still has a system of seniority that seems to be a throwback to the guild systems of old. Advocates admitted before you are referred to respectfully as “my senior.” They have the privilege of introducing you to the court if they want to and in a situation where a line should be made a haphazard shamble of seniority happens. Lex you will remember has only two years as an advocate which means he is clearly a junior to almost everyone there. He takes a mention date for November the 17th.

 

This date comes and because everything closes in December the hearing is then set for January the 16th 2016. On this day the hearing goes forward. Court is packed to brimming. As they wait for their hearing there is opportunity for drama. For example there is one person in there who had been caught for being drunk and disorderly the previous day. Magistrate Mutheu recognises him,

“Prosecutor, didn’t I sentence this man to community service and ask that he clean the courtroom and arrange the evidence rooms yesterday? Am I getting so old that everything looks like it used to?”

“Yes your honour, no not that you are getting old”

“I would hope not”

“You did sentence him yesterday. It’s just….when the police went to let him out of the evidence room he seemed more drunk than when he went in. there was a smell of fresh alcohol coming off him and his pockets were bulging. The police officer searched him and the evidence room, the alcohol confiscated and intended to be used as an exhibit in court number 2 was nearly finished and in his pockets there were about 40 rolled cigarettes of marijuana. How he intended to get past in that state I cannot say, nevertheless he is here before you again.”

Soon it is hearing time. The prosecutor looks around and says, “The witness was bonded but failed to show up, he told me that he had another matter before the high court and it has been on his diary longer than this.” Hearing is pushed to April 10th. On that day it happens. The prosecutor quite competently takes the investigating officer through his evidence. The call from his OCS. The questioning of people in the mobile company offices, the matching of times of stealing and times when people were working, the strange middle of the night calls that Joyce made, the systemic striking down of evidence that it could be anything else.

The magistrate asks if cross examination can be done on the same day noting that it has been 2 years since the case was brought to court and in all that time there have only been two witnesses. Lex consents to do it in the afternoon. It has been two years since he began attending court. His clothing is different the suits are cut by a more skilled tailor from much better cloth, his potbelly has been filling up as they tend to do for Kenyan men when they begin working. His hair is fairer and thinner than when he began the case, he and Joyce have visibly developed a rapport over the time they have been together. She wants this to be over with since it has been hanging over her head for so long. The fire in her is slightly extinguished when she is in court. She knows she is guilty and the not knowing about the eventual sentence is bearing down on her. At this point her and the court clerks are good friends. The people in the registry are all customers of her’s in the new business venture she has begun. It may be ethically grey but there is nothing strictly illegal there.

 

At cross-examination Lex is able to show that there is nothing but circumstantial evidence tying Joyce to the crime. The lack of a technical expert charged with Joyce as a link between access codes and transfer of money shows through. There is also a question about strange calling habits that everyone in court takes note of. They can’t really place the quote though it seems to have come from a period in Kenyan history far, far back in their minds. The prosecutor re-directs the witness and tries to mop up the problems in his testimony however it has been a long time since the crime in question took place and he is not as sure of what he is saying as he used to be. The prosecution rests its case and Lex asks that the accused be acquitted.

 

“Your honour the charge sheet was improperly written. While the charge reads stealing by servant the particulars in the charge sheet do not constitute that crime as the people Joyce is accused of stealing from are not her employers but rather the customers of her employer. There is a wealth of jurisprudence that states that in such a situation it is not possible for the accused to put up a proper defence as she did not know what she was charged with. I contend that the charge sheet was fatally defective and presented a real prejudice to the accused in preparing her case and I ask that you dismiss this case on those grounds.”

 

This is the silver bullet. The moment he had been waiting for since the case came to him more than 2 years ago. He did not want to bring this to the attention of the court before the prosecution rested because then they could, under the criminal procedure code, amend the charge sheet to reflect the new charge.

 

“ Any response prosecutor?”

“….ummm….yes… umm since the accused had competent counsel then we cannot say she was unfairly prejudiced.”

“be that as it may your honour, and thank you bwana prosecutor for the kind words, the law is as it stands and there is nothing in the opinions written by the high court and court of appeal that I have laid before you that claim lack or presence of proper counsel should be a factor in making a decision as to the defectiveness of a charge sheet. If we begin to weaken the law so that it only favours those who are unlucky enough not to have good counsel then we are discriminating against a social group, those who do have counsel, competent or not. I would like to draw the attention of the prosecutor to article 27 of the constitution that was mandated by the people of Kenya and remind him that discrimination even against those with privilege is discrimination.”

 

“I will make a ruling on this within the next three weeks.”

“Your honour I would like time to make submissions on the matter”

“I believe written submissions will suffice, have them prepared and brought to my chambers by end of business tomorrow. When can we have a court date?”

“On April the 27th your honour.”

“That is convenient for me.” Lex says

………………………………………………….

The rest is prologue maybe we don’t even have to hear any words spoken in the courtroom on that day. April the 27th 2014 and all we can see is the magistrate’s mouth moving. The joy in Lex’s  face, the disbelief in Joyce’s, the happiness of her children. The fade to black and the realisation that this is nothing at all like Boston Legal.

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