Several weeks ago I had the pleasure of representing a client in a hotly contested jury trial in the Arapahoe County courts. My client was Jonathan Ogungbenle, a sweet and pleasant 58-year-old Nigerian immigrant who became a U.S. citizen several years ago. The DA’s office was hell-bent on prosecuting my client despite the ample evidence I had provided to them that my client did not commit this terrible act. You may have heard about my client. He was a substitute teacher for the Aurora Public Schools who was accused of masturbating in class while two students and an assistant teacher were present. I showed them the highly contradictory statements of the accusers and pointed out how the police did not properly investigate the crime. Despite my protests and evidence of innocence they proceeded through to trial and, as expected, the jury found my client not guilty of these charges (in less than 30 minutes of deliberation!). It was the right result and it saved a good and decent man from the indignities of possible incarceration and the horrific label of being called a sex offender. (If you wish to listen to an interview conducted on KNUS regarding the specifics of this trial you can visit our website: http://fostergraham .com/news-events/).
But what happens to you (or your family member) when your name is dragged through the mud, your reputation is attacked and you are acquitted of the criminal charges? How does one go about reassembling the broken pieces of one’s life? The question is entirely rhetorical because you, in fact, never do.
In my client’s case his face was on the TV news channels within hours of his arrest. Of course the reporter didn’t wait to see if this case was legitimate or not. He likely just regurgitated some press release from the Arapahoe County DA’s office or read the probable cause statement from the Aurora Police Department. Within 24 hours my client had been suspended by Aurora Public Schools, had been fired from his part-time employment as a nurse’s aide and shortly thereafter he had his state nursing-aid certification summarily suspended. Even after he was acquitted the TV news stations never did a follow-up story telling the community that he was actually exonerated of these allegations. My clients never received an apology from his former employer and I’ll let you guess on whether the Arapahoe County DA’s office apologized to him. Yeah Right! Could he sue the DA, the witnesses or the police for the wrongful prosecution? Technically he could, but for all practical purposes it is impossible and it would never equate to any financial restitution. Being freed by a jury of your peers is likely the only reward he will get.
During the week of August 19, Ogungbenle received a letter from the Aurora Public Schools indicating that, despite his acquittal, he was no longer going to be considered for substitution positions. After eight years with the district and after earning the title of “super substitute” for his commitment to the school district, he is now no longer welcome at any Aurora Public School. That’s about the most pathetic thing I have heard in a long time and I have heard some pretty egregious stuff.
It is a sad state of affairs in our country that all it takes is an unsubstantiated allegation to literally ruin someone’s life. I mean if someone’s face is on TV, or their name is in the newspaper, they MUST have done something wrong (note my exaggerated and clearly sarcastic tone). I have no doubt that the police, prosecutors and media get it right from time to time. That’s to be expected. But the tragedy is for the innocent people whose lives get turned upside down by overzealous prosecutors and mindless victims’ advocates who blindly believe anyone who calls themselves a “victim.” In many cases innocent people are convicted because they either don’t have the resources to fund a legal defense or the risks associated with a jury trial are too great to bear. The prosecutors in this state are well-armed with unlimited financial resources as well as the leverage of mandatory sentencing that coerces innocent people to plead guilty to reduced charges in order to avoid the risk of decades in prison.
Yes, I know what you are thinking. Good grief, another attorney railing against the injustices of the media and the police and the criminal justice system. Well yes, that is exactly correct. While I have been guilty of judging others from news reports and from watching Nancy Grace or Geraldo (gulp, I think I just lost credibility) the truth is we have made our criminal justice system nothing more than entertainment. And the media’s constant exposure of salacious items is the tail of the dog. Unfortunately, the DA, the person with the real power in our society, is the dog. Personally I know and like many of our elected DAs, George Brauchler and Mitch Morrissey, to name a few. I don’t think they want unjust results. I think they are smart, good people. But they must ensure that those who work for them are careful and thoughtful and decent because once charges come down, a person’s life and reputation are literally put on the brink of ruin. The people who lose out are the wrongly accused, but they have no way of putting the toothpaste back into the tube. Call someone a thief, or worse a pedophile or rapist, and see if that title sticks. You likely have a better chance of winning Powerball than of being invited over to a neighbor’s house for a cookout even after you have been acquitted.
It is a fitting time of year for me to be writing this article. As you may know I am not only an attorney but also the son of a rabbi. So let me briefly pontificate on the time of year as it relates to false allegations and atonement. By the time this issue is released we will be in the middle of the holiest time of year for the Jewish people. Rosh Hashanah and Yom Kippur symbolize the beginning of a new year on the Jewish calendar which is a time for celebration, a time of reflection and a time to atone for our personal sins and the transgressions against other people. We are to look inside ourselves and apologize not only to God for our bad choices, but more importantly to apologize to the people who have been harmed by our actions. Without apologizing to the people we have harmed we can never achieve true forgiveness.
While I personally would love to see the prosecutors in my client’s case apologize for their over the top prosecution of my client, I accept the fact that will never happen. Those wrongly accused rarely receive the regrets of those who tried to bring them down. Recently our state legislature finally approved financial compensation for those wrongly imprisoned and that was a tremendous first step. Maybe they will pass legislation that requires a letter of apology too.
So, Jonathan, for you and for our community, in this coming new year I pray that our society can be more empathetic and less blood thirsty. We have the greatest criminal justice system in the world, but it is prone to error. I hope in the months and years to come those in charge of the system look inside themselves and learn to do what is right not what is politically popular and to do what is just and not what is punitive. I can always pray, right?
by Danny Foster, Esq.
As seen here in the Glendale Cherry Creek Chronicle