Ekweremadu Will Appeal His Conviction

By Emeka Ugwuonye, Esquire

Will Senator Ekweremadu appeal his conviction or just quietly accept his fate?

This has been one of the most constant questions people have asked me: will he go on appeal? The options are stark clear. If Ekweremadu does not go on appeal, he will be in prison for 6 years and 8 months. Then, he comes out of prison and be monitored for over three years. For the entire period, he will not leave the United Kingdom. But if he goes on appeal, it is possible that his conviction would be upturn either by finding him not guilty or reducing the sentence. These alternatives outcomes are what will determine whether he would go on appeal or not.

There are additional factors when a convicted person is thinking of going on appeal. The major drawback is that going on appeal is very expensive. Where money is an issue, it could prevent a person in Ekweremadu’s position from considering appealing. However, money is not an issue for Ekweremadu. So, the odds are in favor of him going on appeal. In fact, I believe his lawyers must have been working on that from the moment he was convicted.

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There is yet another possibility to consider. I strongly believe that Ekweremadu will pull every string he could to seek clemency and various forms of diplomatic or executive interventions. That option in view, one can expect that after serving about two years of his sentence, Nigerian Government may be able to persuade the UK Government to recommend Ekweremadu for pardon to King Charles III. That is a distinct possibility. But that will have no besring on the decision to go on appeal. I believe that Ekweremadu will pursue an appeal and have clemency as a backup. But as to whether Ekweremadu would stay in the UK for the next 10 years on account of his sentence, I strongly doubt it.

The next question is: What are his chance of winning on appeal? I think it is up to 50 percent. Looking at the trial, there are several appealable grounds. There were a few points where the court could have erred. This could be in the jury instruction or in the overall trial. For instance, Ekweremadu actually did rely on the advice of Dr. Obina Obeta. Though it was not a reasonable reliance, the question in criminal law is whether such reliance, even if reckless, affected the requisite standards of scienter.

WHAT IS SCIENTER?
In law, scienter (Latin word for “knowingly”, from Latin word “scire” ‘to know, or to separate one thing from another’). This is is a legal term for intent or knowledge of wrongdoing. It is otherwise called “mens rea” which is a Latin phrase for “guilty mind”. It means that the defendant has knowledge of the “wrongness” of an act or event prior to committing it. It denotes a mental state in which one has knowledge that one’s action, statement, etc., is wrong, deceptive, or illegal. It is often used as a standard of guilt in criminal trials.

In cases where there is element of fraud or deception as in this case, the standard scienter requires the prosecutor to establish (1) a false statement or omission of material fact; (2) which was made with intention to deceive; (3) upon which the victim justifiably relied; and (4) which proximately caused the victim’s injury. See the American case, Robbins v. Koger Props., Inc., 116 F.3d 1441, 1447 (11th Cir. 1997) (citing Bruschi v. Brown, 876 F.2d 1526, 1528 (11th Cir. 1989)), which laid it out as follows:

“Scienter” is defined as “a mental state embracing intent to deceive, manipulate, or defraud.” Aaron v. SEC, 446 U.S 680, 686 n.5, 100 S. Ct. 1945, 1950 n.5, 64 L. Ed. 2d 611 (1980). In the Eleventh Circuit, “scienter” may also consist of “severe recklessness” by the defendant, see, e.g., Edward J. Goodman Life Income Trust v. Jabil Circuit, Inc., 594 F.3d 783, 790 (11th Cir. 2010); however, the Supreme Court has left open the question whether recklessness may satisfy the scienter requirement. See Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323, 179 L. Ed. 2d 398 (2011) (“We have not decided whether recklessness suffices to fulfill the scienter requirement.”).

In Britain, the legal definition of scienter follows closely the American definition. It is a legal term that refers to a culpable state of mind. In other words, scienter is a defendant’s knowledge that an act or conduct is wrongful and intent to act despite this knowledge. Scienter is absolutely an element of guilty, including in most cases involving assertions of fraud. Where scienter is an element of an offense, courts require a showing that the defendant had knowledge that the alleged misconduct (which may include an action or statement) is wrong or illegal before issuing judgment or conviction.

The question, therefore, is: How much did Ike Ekweremadu know about the deceptive nature of Dr. Obeta. That is: Did Ike Ekweremadu actually have guilty mind in trying to procure a kidney for his daughter in the manner he did? It may be true that Ekweremadu seemed reckless in trusting Obeta. But does his recklessness constitute the requisite scienter? Ekweremadu repeatedly stated during his trial that he had limited knowledge of these things and that he relied on what he was told by Obeta. Yes, that was reckless, but did that rise to the level of scienter in criminal law? I am of the view that the court’s decision to input to Ekweremadu the knowledge he might have actually lacked is a questionable decision. The tendency to treat recklessness as actual knowledge is a problem, especially in a criminal trial that calls for proof beyond all reasonable doubts. On that ground and more, the instruction given to the jury could be defective and the judgment of Judge Jeremy Johnson could be an error.

I believe that Ekweremadu has a good chance on appeal. I believe his appeal is underway and he may win on appeal.