Training Day 5: Closing Arguments, Jury Instructions, Sentencing, Farewells, and Reflections

In the post below, NACDL Indigent Defense Counsel John Gross describes the fifth and final day of the training workshop.

20 June 2014

Friday had seemed so far away when we unpacked our bags last Sunday, but now it was upon us. We had to catch a flight out of Monrovia at 6:30 p.m., which meant that we were going to have to leave Kakata by 2:00 p.m. That left us only a half day for our final training session, but we were determined to make the most of it. We planned on covering summations, jury instructions and sentencing.

Presentation of awards during the final day of the training.

Elizabeth Kelley began the day with an excellent presentation on closing arguments. Having already excelled at developing case theories and giving opening statements, we assumed that the Liberians would be able to deliver powerful closing arguments and that assumption proved to be true.

One of the things that we decided we would discuss with the Liberians was the importance of jury instructions. When Rick Jones visited Liberia several months ago to do an assessment of training needs, the Liberians had not identified jury instructions as a training priority. However, as we researched Liberian Supreme Court decisions, it became clear that the failure of defense counsel to request specific jury instructions or to object to charging errors made by the trial judge occurred fairly often. It became easy to understand why this occurred once the Liberians told us that not only are there no pattern jury instructions in Liberia, but that they typically have to make a specific request to the trial judge to charge the jury on basic legal principles like the presumption of innocence and the burden of proof. We worked with the Liberians on creating a set of sample jury instruction for claims of self-defense and they immediately understood how these instructions would inform their theory of the case, their opening statements and their closing argument to the jury.

Another topic of discussion was how to make complex legal concepts understandable to jurors who may have very little formal education and who may not appreciate the role that a public defender plays in an adversarial system of justice. One idea that we came up with was for the Liberians to use stories from the Bible to illustrate legal points to the jury. God’s assurance to Abraham that he would not destroy Sodom if there were but five righteous men living there could be used to convey the need for proof beyond a reasonable doubt. The story of Susanna and the Elders could be used to show the importance of cross examination. The Liberians agreed that using Biblical examples of legal principles would make a tremendous impact on jurors.

Finally, we turned our attention to sentencing. One initial question we had was whether Liberians have the opportunity to do pre-pleading and pre-sentence memoranda. The idea of a pre-pleading memorandum started a discussion about plea bargaining and revealed an interesting difference between the plea bargaining system in Liberia and the one here in the United States. In Liberia, if the prosecution and the defense agree that the defendant will plead guilty to a lesser offense than the one charged, then the trial court must accept that plea in satisfaction of the charges. However, the prosecution and the defense may only recommend a sentence; the judge retains the discretion to impose any sentence authorized by law. We also learned that the period between conviction and sentence is typically just four days in Liberia and that the defense attorney only has ten days following a conviction to file with the trial court a “bill of exceptions” which will serve as the basis for an appeal.

Throughout the week, we were amazed by the challenges that the Liberian public defenders have to face. As we spent our last few hours with them, we began to have a feeling similar to the one you experience when a jury is deliberating. The question we couldn’t help but ask ourselves was: “Have we done enough?” We got our answer during the final few minutes of the training. While they all said they wished the training was longer and expressed their hope that we would be able to return to Liberia to do additional trainings in the future, they also said how excited they were to try out the techniques and strategies we had shared with them. Their passion and determination were once again on display. The Director of the Judicial Institute who had attended the training was one of the last people to speak. He said that he firmly believed that our training and the manuals developed by NACDL would result in fundamental changes to the way public defenders practice criminal defense in Liberia.

As we made our way through customs at the airport later that afternoon, I glanced down at my passport and noticed the seal that was on my visa. It depicts the ship the Elizabeth,which brought the first African American settlers to the shores of what would become the Republic of Liberia and the motto “The Love of Liberty Brought Us Here.” As you might expect, that motto generates quite a bit of controversy within Liberia since it refers only to the small group of settlers that would come to be known as “Americo Liberians” and would rule the country for over 150 years. Still, I couldn’t help feel that it was a fitting reminder of why NACDL, as an organization, decided to work on this project. There is no place that NACDL, Liberty’s Last Champion, will not go to help protect the rights of the accused. Wherever we go, it is the love of liberty that leads us there.

Training Day 4: Juvenile Justice in Liberia, Opening Statements, Jury Selection, and Cross Examinations

In the post below, NACDL Indigent Defense Counsel John Gross describes the fourth day of the training workshop.

19 June 2014

The guest house where we are staying sits next to a school and during our first few mornings in Kakata we heard children singing, but on Thursday morning they were drowned out by the sound of water as the rain persisted. For the first time since our arrival in Liberia, we awoke to grey skies. At times during the night the rain became so strong that it sounded like a roaring engine and was loud enough to wake some of us up.

Our training schedule for Thursday was perhaps the most challenging of the week, both for the trainers and for the participants. We planned to cover opening statements, the presentation of evidence, cross examination and jury selection. We could have easily spent an entire day on any one of those subjects and still have felt as though we needed more time to cover it adequately. Success or failure would depend largely on the willingness of the Liberians to focus on these complex topics.

The day before we had asked the Liberians to prepare an opening statement based on the hypothetical Martin had designed (involving a defendant who was charged with murder but claimed he was acting in self-defense). Our plan was to get the Liberians on their feet early in the day, but before we could get to opening statements an issue came up about the representation of juveniles in Liberia. Liberia recently passed a Juvenile Justice Act, which established Juvenile Courts similar to those we have in the United States. The act also guarantees juveniles the right to representation, but does not indicate how that representation should be provided. As a stop gap measure, Juvenile Court Judges have been telling parents who have children charged in Juvenile Court to write to the Office of the Public Defender and request representation. Despite the fact that they have enormous caseloads and no juvenile justice training, the public defenders have been doing their best to represent children in Juvenile Court.

As we got ready to hear the Liberian’s opening statements, the Liberians pointed out to us that they didn’t actually give their opening statement at the start of trial. While Liberian criminal procedure is remarkably similar to our own, one striking difference is that the defense gives an “opening” statement not at the start of the case following the prosecutions opening statement, but rather at the conclusion of the prosecution’s case in chief.

After listening to several excellent opening statements and giving our feedback to the attorneys, a number of the participants asked if they could practice opening statements they were working on for actual cases. This was when we were introduced to another excellent Liberian expression: “Six days for the rogue, one day for the master.” The public defender that used the expression had a case where his client was accused of assaulting the complainant, but claimed that the injuries the complainant sustained were because he jumped out of a window when the client came home and discovered that the complainant was having an affair with his wife. The sentiment that the expression tries to capture is that even though someone may be able to hide their transgressions most of the time, eventually they will come to light.

We worked on opening statements throughout the morning and then took our lunch break. For the first time during the week, we were served “fufu” at lunch. Rice is a very big part of the Liberian diet, but like other countries in West Africa, Liberians also eat fufu: boiled cassava that is then pounded into a past which is used to scoop stewed meats or vegetables.

When we came back after lunch we decided that it was time for the Liberians to assume the role of trainers themselves. We had been giving them constructive criticism throughout the week and simultaneously explaining to them what went into a good critique since one of our goals was to “train the trainers.” We asked one of the public defenders to give their opening argument and told the rest of the participants to be ready to critique their colleague’s opening. For the first time during the week all four of us sat on the sidelines while the Liberians ran their own training session. The constructive criticism offered was very productive for the Liberians and very gratifying for us.

The next topic on the agenda was jury selection and Lisa Wayne led the discussion. The jury pool in most counties in Liberia is made up of jurors who have little to no formal education and who are typically unemployed. Jurors are actually paid approximately $250 U.S. dollars if they are selected, which may not seem like a lot to us, but is a significant amount of money in Liberia. People think of jury service as a job and not as a civic duty. This creates a perverse incentive: the people who are most in need of money, and therefore the most likely to be susceptible to bribery, do everything they can to be selected as jurors. This combined with the fact that most of the jurors have only a high school education and a very limited understanding of the legal system and jury selection becomes incredibly challenging.

The next topic on our agenda was cross examination and Martin Sabelli did an outstanding job taking the Liberians through basic cross-examination techniques. Even though it was the fourth day of training, even though it was getting close to 6:00 p.m. and our day had started at 9:00 a.m., the Liberians were determined to learn everything they could about cross examination. This was the moment that we had all traveled so far and worked so hard to achieve. In rapid fire succession the Liberians took turns cross-examining Martin using techniques that an hour ago they knew nothing about. We all sensed that the skills we were trying to teach had begun to take root.

That evening we once again gathered in the common room of the guest house for dinner, a bittersweet occasion since we all knew it was our last night in Liberia. We had a memorable dinner of barbequed chicken, rice, greens, cassava and avocados with a spoonful of “peppa” on the side. After arriving in Liberia it didn’t take us long to realize that Liberians like their food spicy and that no meal is complete without “peppa,” a condiment made of roasted and finely chopped green chilies.

We were about to head off to our rooms when we were joined by several of the Liberian public defenders. Then we did what friends do: we bought each other drinks, told stories, told jokes, told each other we were right about some things, wrong about others and forgot about the fact that we needed to get up early the next day.

NACDL Members Travel to Liberia to Conduct Five-Day Criminal Defense Training

On Saturday, June 14, 2014, a team of five members of the National Association of Criminal Defense Lawyers (NACDL), led by NACDL Indigent Defense Counsel John Gross, departed for Liberia to conduct a five-day training workshop with Liberian public defenders and trainers from the James A.A. Pierre Judicial Institute in an effort to improve the quality of criminal defense in the country. The workshop is a part of an ongoing project of the United Nations Office on Drugs and Crime (UNODC): Promoting Rule of Law & Governance in the Criminal Justice System in Liberia. The training will begin today, Monday, June 16, 2014 and conclude on Friday, June 20, 2014.

Increased training for public defenders in Liberia is an important component of improving the country’s overall criminal justice system. Ensuring the adversarial process functions properly is necessary to increase public trust in the criminal justice system and to secure to all Liberians the right to counsel guaranteed to them by Article 21(c) of the Liberian Constitution.

To this end, members of the NACDL team will provide training to public defenders in Liberia. The training will focus specifically on raising the pre-trial and trial advocacy skills of Liberia’s public defenders. NACDL is also the process of building a “criminal defense manual,” which will be used to assist in the training of future Liberian defense lawyers. Earlier this year, NACDL Secretary and Executive Director of the Neighborhood Defender Service of Harlem Rick Jones, traveled to Liberia to support the planning and research of the upcoming training.

The members of NACDL’s team include: John Gross (Washington, DC), Elizabeth Kelley (Spokane, Washington), Marjorie A. Meyers (Houston, Texas), Martin A. Sabelli (San Francisco, California), and Lisa M. Wayne (Denver, Colorado).

This is the second time that NACDL has sent members to Liberia on such a mission. In 2009, a team of NACDL members traveled to Monrovia, Liberia to work with the Liberian Supreme Court’s James A.A. Pierre Judicial Institute. During that trip, NACDL conducted an initial training attend by all lawyers at Liberia’s Public Defense Office, which had been formed earlier in 2009. That training was conducted together with representatives of the ABA Rule of Law Initiative, the International Legal Assistance Consortium, and the Liberian Bar, training public defenders and members of the private bar in fundamentals of criminal defense. That training also included a day of instruction for Liberian journalists covering the Supreme Court of Liberia.

This blog will be regularly updated over the coming days with reports and photos from the team in Liberia. For more information on Liberia and its legal system, check the links on the right side of this page.