The legal Bar and Bench on a flight of fantasy

photo-Yinka

Baseball is an American classic—similar to cricket in most commonwealth countries. In baseball, someone, a pitcher, throws the ball to an opponent—the batter, and the batter is expected to hit the ball. An umpire crouch behind the batter, watches the ball as it crosses the batter’s midpoint. The umpire gives the pitcher a zone that his ball has to cross in other to be considered a strike—a good pitch.   Often, a good pitcher throws a ball close to a 100-mile per hour or curve the ball as it passes through the zone to deceive the batter. As I write, Gorsuch is set to assume his seat as a Justice on the United States Supreme Court. That’s the highest judicial seat in the Country. During his confirmation hearing, Judge Gorsuch told the Senate Judiciary Panel, quoting from the Chief Justice of the same court that, like a baseball umpire, his goal and role is to call the ball in the strike zone.

Yes, that’s the role of a judge—to call the ball when it crosses the strike zone! What Gorsuch failed to say and, which those voting against his nomination understood, is that judges equally define those strike zones. The strike zones in human affairs are not abstract, they are organic, and like baseball, it changes based on many human factors. Two of the foremost researchers on how humans make decisions—two of the foremost that have studied how humans call the strike zones, Amos Tversky and Nobel Prize winner, Kahneman, told us how frivolous the very best of us call those strike zones or, make decisions. Jonathan Haidt wrote his most famous book titled, The Righteous Mind, to explain how instincts or, our passion, predominates over our reasoning. Scottish philosopher, David Hume, had taken a stab at how humans made decisions and concluded that reason is merely the “slave of the passions.”

There is nothing scientific or mathematical in how humans reach conclusions or judgments. First, we come to an instinctual or emotional conclusion, and when tasked, search for reasons to support our instincts. On a bright, sunny day, a beautiful girl passes by, our instincts turn into desire, and at the first opportunity, start the construction of how she should become a life partner. Even, on occasions, we dismiss any attempt to justify our instinctual conclusion, and dismissively say, “…that’s it, I don’t care.” There’s nothing special or different in how judges or lawyers reach conclusions. Legal practice and life experiences have established few parameters that underlie the basis of our professional instincts. Like others, lawyers and judges construct reasons to support those instincts. Seldom, the follies of our instincts become too obvious.

That, a rich or influential man does not go to prison is a well-established cultural paradigm—I get that! What I object to is an argument that crime is either poor or un-influential. I get it that the grandson of Justice Sir Adetokunbo Ademola, whom himself, is a judge of the Federal Court in Abuja, ought not to go to prison; what I don’t get is any argument that what Judge Ademola did was innocent and not criminal.

What insults decent senses is the argument that the prosecution failed to prove its case against Judge Ademola. No, the prosecution did not; the judge failed to understand the case before him! For one, the higher legal burden of proof—the proof beyond a reasonable doubt is an organic rather than a mechanical or scientific construct. It grows and shrinks depending on the judge. Like baseball strike zones, it depends on the batter and the umpires. Two, the standard of proof was not the appropriate burden that the prosecution carries at the Summary judgment stage. To summarily dismiss a case for the reason that the prosecution failed to prove a case beyond the reasonable doubt is a misunderstanding of the legal concept. At a summary level, a judge is restricted to considering if there’s any reason for judgment in favor of the prosecution, and this is a much limited burden. Judge Okeke failed in this regard!

Of a greater injustice is the fact that the judge required the prosecution to jump over an impossible evidentiary height. Judge Okeke required EFCC to point to a decision of Judge Ademola that the #30million that Attorney Agi gave to him tainted. The fact is that judicial decisions, either right or wrong, hangs upon a reasoning—and, such reasoning, often, was a basis for the case in court in the first instance. It’s axiomatic that litigants on the losing side of a judge’s decision, can counterintuitively point to his or her original argument as evidence. If, for example, Judge Ademola called a dog a pig because he received money to make the decision, it will still, nevertheless, be within the judicial discretion of Judge Ademola.

Of the worst insult is Judge Okeke’s argument that the prosecution failed to prove that Judge Ademola received the #30million deposited into his wife’s account. In short, Judge Okeke refused to acknowledge, what in ordinary human experiences, is described as a marital asset. Judge Okeke cast out the first marital oath between Judge Ademola and his wife—the oath that joins both at the hip—that turns their separate possessions into a combined one.

Judge Okeke isn’t alone—the entire Nigeria Bar appears to be in toe with him. Reading from many of our so-called Senior Advocate of Nigeria and others within the legal community, arguing that Judge Okeke merely applied the law. No, he did not! In addition to applying the law incorrectly, he made his law up! He misapplied the burden of proof and created his own legal elements, both of which are consequential.

The fact is that each member of the Bar and the Bench owes more than a legal obligation to the law—each owes both moral and fiduciary duties to the great profession, and each member of the legal profession betrays the great profession. Again, strike zones in baseball change depending on the height of the batter and the person of the umpire. To argue that the burden the prosecution carries remain the same in all circumstances is a disservice to the great profession. Jesus Christ could have condemned the prostitute as the Judaic law demanded, and abandoned the identities of the accusers of the poor woman. He could have!—after all, he would have called the ball in the strike zones too, but He knew better! King Solomon could have called the ball in the strike zone and invoked the law of contract to sever the body of the poor, little boy into two before the warring mothers.

The legal profession takes a flight of fantasy, criticizing the executive and legislature for corruption and the failures of our polity. Laws are more than the substantive letters in the books—it includes the procedures in courts, and of greater input is the interpretation of the substantive letters. In the most celebrated case in the American jurisprudence, Madison v. Marbury, the US president in 1790 argued that his power under the constitution was broad. And, President Jefferson appeared to be correct under the Constitution and the court could not change the letters of the constitution. Notwithstanding, the court told the president that his power might be as broad, but that the court still retained the duty to interpret the broadness, and explicitly told him that he was wrong. That law cemented the role of the courts and the principles of separation of powers in the US, and for all times. These were judges that had the visceral and intellectual understanding of what was at stake. Judge Okeke does not, and he is significantly diminshed!

The court makes law as part of its legal, moral, and fiduciary duties!

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