CPS goes after acquitted Nigerian

I regularly defend the concept of a man being innocent until proven guilty, but the concept is under assault on many fronts. Here is a man who wrongly spent 2 years in jail, was acquitted, and still considered guilty by CPS. A Las Vegas newspaper reports:

Victor Fakoya can finally go home.

For months, the Nigerian immigrant and, as of last Friday, U.S. citizen has battled Clark County prosecutors for the right to live with his family. He previously spent two years in jail before a jury acquitted him of abuse and murder charges.

On Thursday, after five months of legal wrangling, a Family Court hearing master allowed Fakoya to be reunited with his wife and two daughters and to move into his Las Vegas home.

Attorney Kristina Wildeveld, who represents Fakoya, said case workers from the Department of Family Services will observe the Fakoyas over the next seven weeks. A final hearing to close the case is set for June 30.

Fakoya said he was relieved he now could be with his family. He said he is still bothered that he was targeted by the district attorney's office, and he believes his rights were violated.

Since Fakoya's December acquittal in the death of a 2-year-old boy, prosecutors have refused to let him live with his family unless he admitted to their accusations in a related Family Court child protection case.

But Fakoya refused to admit to something he didn't do, vowed to fight the case to the U.S. Supreme Court and spent every night for the past five months away from his wife and two daughters.

Earlier this month, after weeks of public scrutiny of the matter, the district attorney's office agreed to resolve the child protection case.

Fakoya pleaded no contest to a Family Court petition that stated he did not call 911 in a timely manner after realizing 2-year-old Daniel Jaiyesimi was unconscious.

The delay was a couple of minutes. When Fakoya saw Daniel had become unconscious, his first phone call was to the boy's father. A minute later, he called his wife, who told him to call 911. He then immediately called 911.

Law prof E. Volokh adds:

Note that, in principle, it’s quite possible that if, for instance, there’s a 90% chance that someone was guilty of murdering a child living in his home, he would (1) be rightly acquitted (since his guilt can’t be proved beyond a reasonable doubt) but (2) rightly have his parental rights terminated (since he could be shown to be an unfit parent by clear and convincing evidence). And even if there’s only, say, a 60% chance that he was guilty, he could well have his parental rights sharply curtailed, for instance by being limited to supervised visitation or some such.

Under this sort of standard-of-proof reasoning, a man could be innocent of domestic violence or child abuse in the eyes of the criminal justice system, but still get blamed for it in family court or with CPS. Indeed there are several prominent football players with this problem, where they face punishment by the NFL, NCAA, or the college.

It is possible to explain the OJ Simpson verdicts that way. Maybe he was acquitted in the criminal trial because there was not proof beyond reasonable doubt, and had to pay in the civil trial because there was evidence meeting the lower standard. Yes, that is possible, but unlikely. A better explanation is that the trials were handled very differently.

The Nigerian man is trying to sue for his persecution, and got a judge to say:

As the Ninth Circuit recognized in Brittain v. Hansen, “It is long-settled that custodial parents have a liberty interest in the ‘companionship, care, custody, and management’ of their children.” This interest does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. In Smith v. City of Fontana, the Ninth Circuit panel wrote that § 1983 permits parents to challenge “a state’s severance of a parent-child relationship as interfering with their liberty interests in the companionship and society of their children.” “This constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents” because “[t]he companionship and nurturing interests of parent and child in maintaining a tight familial bond are reciprocal, and we see no reason to accord less constitutional value to the child-parent relationship than we accord to the parent-child relationship.”

He has done well to get that opinion, but it is still very unlikely that he will collect damages.

You would think that CPS and the DA would back off, once the jury voted not guilty. The man spent 2 years wrongly in jail. Isn't that enough?

No, that is not how they think. They had to vindicate themselves by forcing the guy to admit to something wrong. That is, to make him admit that it was a mistake to call they boy's dad before calling 911.

Here is another case that is contrary to the principle of innocense until proven guilty. Apparently it is common for a prosecutor to try a man on a long list of charges, get a jury conviction on just a couple of the counts, and then convince the judge to sentence the guy as if he were guilty of everything. But only 3 of our 9 US Supreme Court justices stand squarely in favor the concept of only being sentenced for the actual crime convictions:

Today, the Supreme Court denied certiorari in Jones v. United States. At issue was whether a criminal defendant’s Sixth Amendment rights are violated when a court imposes a sentence that, but-for a judge-found fact, would be unreasonable. Here the defendants were acquitted of a conspiracy to distribute drugs charge, but the judge nonetheless made a finding that the defendants had participated in such a conspiracy when determining their sentences for other drug offenses.

The Court’s denial of certiorari in Jones drew a dissent from three Justices — Scalia, Thomas and Ginsburg. This may seem like an odd lineup, but all three have adopted a fairly uncompromising approach to the Sixth Amendment, arguing repeatedly that the Amendment’s jury trial right requires that all elements of a crime and sentencing facts be proved to a jury beyond a reasonable doubt. Thus all three were understandably troubled by the lower court’s decision in Jones. Interestingly enough, they could not get a fourth justice to support a cert grant.

I doubt that we will see another President with the guts to appoint another Clarence Thomas to the Supreme Court.