Nampamunuwa Shooting— Sri Lanka’s Monte Cristo
A good constitution provides for the separation of powers between the executive, judiciary and legislature that act as balance of power. Though Sri Lanka’s constitution establishes these three branches of government, there is no separation of powers. The President heads the executive branch and appoints the Cabinet of Ministers, including the Prime Minister from the legislature. He appoints justices of the Supreme Court, Courts of Appeals, High Court and the Inspector General of Police. As the Chairman of a political party, President’s appointments, are perceivably tainted by political motives. One of the President’s key appointments is the Attorney General (AG) whose office decides to file, amend or withdraw criminal charges.
Gamini Lokuge was the Minister of Tourism in President Premadasa’s UNP Government in 1989. I have often driven by his beautiful mansion by the Kottawa-Piliyandala road overlooking a paddy field. When "Maha Pola"--a favorite event of the President, was held in Gamini Lokuge’s Kesbewa district, he built large welcome structures in major intersections.
Pathirana was a part owner of the Palians Café in Pannipitiya. He and Indunil, another business owner, had too much to drink one day, and, as a prank, they decided to spoil the structure in the Pannipitiya junction. A few hours after they have completed their misdeed, Minister Lokuge came with his entourage, and ordered them to fix it, and kneel before it. Indunil obeyed without any hesitation, but not Pathirana. Inside his café, Lokuge pulled his white robe up and kicked Pathirana. He and his associates brutally attacked him and dragged him into a jeep.
As the supporters of a different political party, Pathirana’s family was furious, but helpless.
Minister Lokuge’s nemesis in Kesbewa District was Chandana Kathriarachchi who was the Chief Organizer of SLFP in 1989. In those days, Kathriarachchi was a no match for the powerful Minister. The tables had turned, however, after SLFP returned to power in 1994 when the later became a Deputy Minister while the former returned to the Parliament as a Member. The rivalry between the two factions took a different tone as Kathriarachchi now has the upper hand.
In 1996, during an insignificant Nampamunuwa Multi-Purpose Cooperative Society election, a brawl took place between Kathriarachi and Lokuge factions over a forged signature, minutes before Lokuge was supposed to arrive at the location. The escalation of hostilities resulted in killing C. D. Chadraratne, a strong Lokuge supporter. Coincidentally, the person who was implicated in pulling the trigger was, Mahesh Peiris, Pathirana’s brother-in-law.
As the saying goes, there are no permanent enemies in politics, as Lukuge and Kathriarachchi became supports of Mahinda Rajapaksha’s Peoples Alliance Government. The Attorney General withdrew murder and grievous injury charges that had been filed against Chandana Katriarachchi and three others, including Mahesh Peiris in the Nampamunuwa murder case in pursuance of the Section 194 of the Criminal Procedure Code of Sri Lanka. The amended charge sheet included unlawful assembly which they pleaded guilty to. Consequently, the Colombo High Court sentenced them to five months of rigorous imprisonment which was suspended for ten years.
Celebrating Rape -- The Sunil Amnesty
On 7th July 1981 Sri Lanka celebrated its 50 years of universal adult franchise on a grand scale. In addition to the usual celebrations in Galle Face and releasing a 5-rupee coin, 400-500 prisoners were pardoned. The unusually large number of lucky criminals were released due to a blanket amnesty given by then President for convicts who were imprisoned for their first offense and serving less than 10-year sentences. Even more interesting is the fact that the list of criminal offenses excluded murder, treason, unlawful assembly, robbery, default of income tax, bribery, kidnapping with a notable omission: rape.
W. K. Sunil Perera, 5’ 3”, was a very smart criminal who supplied an elephant to the Vesak procession organized by the Walikada prison while he was serving a 10-year sentence for rape there. Gonalwala Sunil or Kotte Sunil was the God Father of Sri Lankan underworld and was the pioneer of the marriage between politics and the underworld. Until his and his wife’s death in 1987 in a hail of bullets, he was considered as an unofficial government Minister.
Although alleged due to his notoriety and network, there was no evidence linking him to 1983 Walikada prison massacre or the burning of Jaffna library. However, there was a strong allegation that he was stealing oil from the Sapugaskanda Oil Refinery with impunity.
Wielding this kind of immense power dared him to rape a daughter of a wealthy and powerful doctor.
There was an unbelievable eyewitness encounter of this incident…
“…In a night club called Tropicana where a young beautiful daughter of a Colombo Medical College Professor Dr Paul went for disco dancing with her Chinese male friend. Gonawela Suni was another night club reveler that night at the Tropicana club with some of his other friends. At the end of the dance, Gonawela Sunil had become friendly with the Chinese male friend of the girl and offered them a ride in his car. Instead of dropping them off at Borella as requested, Sunil took the couple to a place in Biyagama, took the girl in to a dimly lit unoccupied house only with a deck bed and gang raped her with his friends. After ravishing the girl they were returning to her apartment in Borella when they suddenly stopped the car on the Kelaniya Bridge. Gonawela Sunil then wanted to kill the girl and dump her body to the Kelaniya River. But she was saved through the intervention of her Chinese friend who promised to keep her silent. After returning home, she did not want to reveal anything to her mother, but finally talked to a doctor brother who admitted her to the hospital and carefully recorded all evidence which helped in the criminal case finally. Gonawela Sunil was arrested, despite his political influence since the victim’s father was also influential. Sunil was convicted at the High Court. The verdict was appealed against. All attempts to get him bailed out pending the appeal, failed. Finally, the Supreme Court upheld the verdict of the lower courts…” (The reason behind abductors to kill its victims, like in Matugama Saman Kumara, is another blunder in the criminal law in Sri Lanka.)
Even though the father of the victim was well-connected and wealthy to get a conviction and put Sunil Perera behind bars for 10 years, he served only six (6) months of his sentence. This may explain the omission of “rape” in the list of excluded offenses. Since it was clear that this amnesty was designed to pardon just one person, it was dubbed “Sunil Amnesty.” Putting icing on the cake, sometime after Sunil Perera’s release, he was made a Justice of Peace (JP) for all island and was assigned a bodyguard for then Prime Minister who was also the Minister of Education.
How to Commit the Perfect Murder – Katuneriya Double Homicide
He was a powerful government Minister, she was a lonely housewife. Her maid was a poor villager from a rural town. The illicit affair ended up with both women strangled and burnt to death. After a costly trial, appeal and re-trial, justice was served for the killers who received the death penalty, however, the master-mind behind it left the prison as a free person.
Fernando became a member of the parliament in 1989, the same year, the victim, Theresa’s husband left for work in Italy. Fernando held several ministerial portfolios. He was rich and close to then President. Some say, he was the most powerful person in the Puttalam District.
The illicit affair was a well-known gossip in the Wennapuwa area which was his electorate. As many witnesses later testify, Monica, Fernando’s wife was furious of her husband’s affair and threatened Theresa on several occasions. One of those times, she threatened to kill her. That’s when fate brings Seelawathi from a rural town as the guardian who would not leave the sight of her master, even at death.
The minister’s driver was the go-between person. On January 03, Theresa gets a phone call. The driver says minister wants to meet her. Later, the driver knocks on the door of her sister’s house where she resides. She and the maid leave the house in a pretense to get some medicine.
Later in the day, the police were notified of two badly burnt bodies in a lightly forest area in Katuneriya. They were burnt beyond recognition and would need dental records for positive identification.
For a decent prosecutor, this case is a walk in the park. According to testimony, Monica meets the suspects, hands them a large can of petroleum, and verbally instructs them to “finish it off.” She gets off of her jeep after transferring the can of petroleum and the suspects proceed. After luring the women out of the house and into the jeep, the suspects tied and strangled them. In a forest near Katuneriya they poured petroleum on them and set it off. The fire makes a loud noise that several neighbors recall hearing it. After committing the murders, the perpetrators left in such a rush that their jeep skids off into a nearby ditch. A neighbor intervenes to help them out. He also notices the occupants are very nervous and despite the severe damage to the vehicle they do not bother to call insurance. He takes down the vehicle registration number.
In the trial, the driver, Sunil Shantha becomes a state witness. In 2005, a jury found Monica Fernando and three others were guilty of conspiring and committing the murders of Theresa and Seelawathi. They were given death sentences. The defense appealed. In the appeal, the case was returned to the lower court for retrial. The earlier decision was upheld in the retrial.
Unfortunately for the victims, the prime suspect in this case was a wife of a powerful Minister.
According to the Article 34 of the Sri Lanka Constitution the President is empowered to pardon convicts. If the capital punishment had been given, a pardon can be granted only after the judge who handed down the sentence forwards a report to the Attorney General who seeks the advice of the Minister of Justice and submits their recommendations to the President. This lengthy process was not necessary because the President had already commuted her death sentence to a life imprisonment. After serving a year of her life imprisonment, the President pardons Theresa Fernando.
The Bharatha Lakshman Murder and a Slap on the Face
The appeal in the Bharatha Lakshman Murder Case is a slap on the face of law and order in Sri Lanka. It is likely that the appellant in this case, Duminda Silva may succeed. The evidence shows that Silva (an MP) and his bodyguards came to a place where Bharatha Lakshman (former MP) was canvasing and confronted him. In the ensuing argument, there was a fight and a shootout. When the dust settled, Lakshman was dead along with three others and Silva suffered a gunshot wound to the head. Unfortunately, neither police nor a magistrate had officially observed this gunshot wound to the head immediately following the incident.
Apparently, the staff in the ward of Sri Jayawardenapura hospital where Silva was treated were replaced, and he was flown out of the country to Mount Elizabeth hospital in Singapore. He would not return in the next one and half years.
In a capital murder case, the police gather evidence and record statements from the suspects. If a suspect is in the hospital, police or magistrate visits the hospital to observe, gather evidence and record a statement. These are crucial steps in criminal procedure. Immediately after an incident involving guns, the police or magistrate can gather direct evidence such as gun splatter or gun residue. The Attorney General’s (AG) office stated gathering of such evidence was not necessary because Silva was not a suspect at the time. It was a good argument if it had not been improperly made because the AG was an appointee by the President who was the Chairman of the party where Silva was also a MP. The Colombo Magistrate added Silva to the list of suspects when the case came across his docket a several months later and issued a warrant for arrest. Despite the knowledge of the warrant, the main lawmaker of the country, then, the Prime Minister visits Silva at the hospital. Gun Residue Evidence (GSR) can make or break a case, it contains DNA of the gun, and stays very long time (a few months) in cloths or body. Unfortunately, by the time Silva returns, all traces of gun residue would have been evaporated.
In absence of gun residue this case becomes, more or less, circumstantial except for the direct evidence, primarily, of the driver of Lakshman who survived the shootout. There are also eye witnesses, including the suspects who contradict this evidence. If GSR had been taken from Silva, it would have proved at what range he was shot, direction, type of gun, exact weapon fired the shot etc., and it could have bolstered his self-defense claim. Alternatively, if Silva had gun residue on his hands it would have thrown his self-defense claim out of the window. Then, it could have been an open and shut case for the prosecution. With the absence of this critical piece of evidence, Silva may likely walk out of the prison with a cloud of suspicion hanging over his head.
How to Take New York or Connecticut Bar If You are a Foreign Lawyer
NY State is one of the most diverse and most progressive states in the USA that allows foreign lawyers to enter into the NY Bar. There are certain requirements laid out by the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law in NY state. If the lawyer has a foreign degree, i.e. LLB, by a law school accredited by the NY Bar Association, he can make an application to be evaluated by NY State Board of Law Examiners (BOLE). If the lawyer does not have a degree but have a certification or diploma i.e., Sri Lanka that allows him to practice law in a certain country, he can apply to BOLE to "CURE" his deficiency. In most cases, the lawyer cures his deficiency by taking a LLM degree in US Legal Education. Once the deficiency is cured, BOLE will allow the lawyer to sit for the NY Bar Exam (https://www.nybarexam.org/foreign/foreignlegaleducation.htm). Keep in mind, NY Uniform Bar Exam (UBE) is one of the toughest bar exams in the country. NY Bar has reciprocity with the following states: Alaska Arizona Arkansas Connecticut Colorado Washington DC Georgia Idaho Illinois Indiana Iowa Kansas Kentucky Maine Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska New Hampshire New Jersey New Mexico North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming that permit admission on motion, without examination, for applicants who have practiced for five of the preceding seven years in NY state after passing the NY Bar (http://www.nybarexam.org/aom/admissiononmotion.htm).
Starting 2016, the State of Connecticut allows foreign lawyers to be admitted to the bar with an LLM. As in New York, there is an application process (https://www.jud.ct.gov/cbec/regs.htm), which is quite similar to that of New York. Both New York and Connecticut are UBE (Unified Bar Exam) states that you take only one bar examination to be admitted in both states. As of 2019, 33 states are UBE states. Prior to the bar exam, an applicant must pass Multi-state Professional Responsibility Exam (MPRE). In 2019, the MPRE passing score was 85 in NY and 80 in CT. In NY, you must review the NY Law Course and pass the NY Law Exam which is not a big deal. There is also a 50-hour pro bono requirement before being admitted to NY Bar.
Get that Ticket off Your Back
Traffic tickets can be costly initially. And in the long run it can be very expensive with the increase of insurance premiums and reduction of points off of the license.
In order to successfully challenge a traffic violation, the burden of proof is very important. In civil matters, burden of proof would be preponderance (balance) of evidence that, in order to win, one party must show more evidence than the other party to convince the majority of the jurors. In criminal matters, it is beyond reasonable doubt that the decision of the jurors must be unanimous. How about in a traffic case?
It is bit confusing. As I confirmed with a judge the legal burden of proof in CT is, “beyond reasonable doubt” for speeding violations. I would think it makes it easier to challenge a speeding ticket because you only need to introduce “doubt” into the prosecution story. Launching a defense, one of the amazing tools available to a defendant is “discovery.” The prosecution is required to submit all the evidence against the defendant. If the discovery request is not honored by the prosecution (district attorney) the defendant can make a “pretrial motion” to the judge. The ignorance of a discovery request by the prosecution can be a basis for dismissal.
I’m not sure this case applies to states other than NY, in People v. Rosario, the New York Court of Appeals set forth what has become known as the “Rosario rule.” However, I'm sure similar rules/precedence are in effect. This rule mandates that in criminal prosecutions, the prosecution must disclose to the defense all of a prosecution witness’ prior recorded statements, so long as they are material to that witness’ testimony. Such recorded statements are commonly referred to as “Rosario Material,” and may include the witness’ prior testimony, written statements, notes, and reports. The purpose of the Rosario Material rule is to ensure that the defense can adequately test the credibility of prosecution witnesses during cross-examination. The Rosario rule was codified in the New York Criminal Procedure Law (CPL) in 1980. Failure to disclose such statements is a “per se” violation of a defendant’s rights and can result in an automatic reversal of a conviction.
The officer who gave you the ticket is the prosecution’s star witness. As a sworn police officer, the court places a humongous credibility on him. Forget about challenging his credibility--you are wasting your time and risking your case. Instead, here is a better path.
When a police officer issues a ticket, he takes down notes. The officer’s notes are part-and-parcel of the case. Since he would be issuing hundreds of tickets, by the time your case is called in the traffic court, I have found out, he generally has no idea what is this all about, and he is100% relying on the notes, and will not deviate much outside of the notes to avoid lying under oath. You can see that he is peeking at his notes while testifying.
Submit a discovery request to the district attorney and the police department requesting a copy of the officer’s notes. When you have it, you got your best defense. The notes describe the officer’s strategy to issue you a ticket, and that’s how he is going to testify in the court. You can use the notes to dig holes in the testimony. In other words, introducing “doubt” to the officer’s recollection of events. Most of the time officers take detailed notes with diagrams, graphs, traffic condition, weather condition, visibility and other critical information. In that case, “good luck,” it would be an incredibly uphill battle to win if the officer has an iron clad case. If you have admitted guilt, by any chance, and if the officer had noted it down you would be better off paying the ticket. Please note that the "no contest" (nolo contendere) plea that is offered at the courthouse with a reduced of fine is a guilty please that can result in reduction of points and/or increase in insurance premiums. It is an out of court settlement.
The Drama of the Free Speech of a Tenured Professor
The recent free speech debacle taking place in Fresno State (http://www.fresnostate.edu/) sheds light on the free speech of a tenured professor. For me, the statement she made on Twitter should not have been made. They were insulting and offensive. On the other hand, the amount of resources, energy spent on a few Twitter feeds is hilarious. Twitter, and its ability to ignite millions of people within a few seconds, is a major source of distraction these days.
The first amendment protects the citizens from free speech violations by the government. There are instances where the government is an employer, like in this case. Can the Fresno State – a public university – take action against a tenured professor for her speech? First, is this a matter of “public interest?” Definitely yes. If she had made a comment about a colleague in her department 1st Amendment does not protect her. Second, is the speech was made as a “private” citizen? The Fresno State also made it clear that the professor made the remarks as a “private” citizen. The fact that she was on leave augment this argument. Speeches made by “private” citizens on matters of “public interest” are protected by the 1st amendment. If a public employee such as this professor made the comments as a part of her job duties, 1st amendment may not protect it. Since freedom of expression is an inherent part of their duties, speeches made by professors in his classroom or in pursuance of his duties as a professor is generally protected. This does not apply here because the professor was on leave. It looks like she is on the clear, right? Not yet. Then, there is the “balancing” act. Does the speech of a public employee create substantial disruption of public service that outweigh the employees 1st amendment rights? Here the professor may get into trouble. She had listed the Fresno State counselling or suicide/counselling hotline as her contact. If the evidence shows that it caused substantial disruption of education service, Fresno State may have a case. But, I’m doubtful of the success of this approach. As a tenured professor, her employment is governed by the state law and the union contract. Historically, firing a tenured professor had proved to be a very tough proposition for any institution.
Lincoln the Lawyer
Abraham Lincoln is one of the best presidents of the US. His shrewdness and leadership in the US civil war saved the union. However, the greatness of Lincoln as an attorney is little known. In fact, during his time, he was a very good defense attorney in the country. I didn't know this until I read an amazing book about evidence , "The Art of Cross-Examination." The cross-examination theories, techniques, tricks and practices that are discussed in this book are universal and timeless.
Young Abraham Lincoln's (how he was called then) first trial (The Almanac case) as a defense attorney was out of a fiction movie.
(at the end of a lengthy cross-examination)
Lincoln— "How, then, did you see the shooting?" Sovine— "By moonlight (defiantly)."
Lincoln — "You saw this shooting at 10 at night, in beech timber. three-quarters of a mile from the lights, saw the pistol barrel, saw the man fire, saw it twenty feet away, saw it all by moonlight? Saw It nearly a mile from the camp lights?"
Sovine — "Yes. I told you so before."
On getting this answer, Lincoln put his hand into a side pocket drew out a blue covered almanac; opened it slowly and offered it as evidence; showed it to the jury and the court. Then he read from a page with careful deliberation that the moon on that night was unseen and only arose at 1:00 AM in the next morning. Following this climax Lincoln moved (motion) the arrest of the perjured witness as the real murderer. With such a determined emphasis did Lincoln present his showing that the court ordered Sovine arrested. Under the strain of excitement Savine broke down and confessed to the crime and said it was accidental.
If you want to read about Lincoln the Lawyer: https://www.amazon.com/Lincoln-Lawyer-Brian-R-Dirck/dp/0252076141
Civility, Collegiality, Professional Standards and Cost of Litigation
Please find full article in the below like (Unfortunately, you need to have subscription to Chronicle to read it in full)
In talking about the cost of litigation, the Steven Salaita case in 2015 cost University of Illinois more than $2 million (1.3 million and $875,000), including an $875,000 settlement ($600,000 to the professor and $275,000 to his lawyer).
In Salaita case, the professor lost a tenured faculty position after posting a string of anti-Israel comments on social media. A federal suit brought by Salaita alleged breach of contract and violation of his free speech rights. As a part of the settlement, Salaita would drop two lawsuits against the university and agree he will never work there.
I get so angry when my wife bluntly claims, "lawyers are liars." She has a good point, though, what if a person retains me as her defense attorney and claims she had committed murder. I cannot deny defending her. I cannot tell anybody about it. She is entitled to a fair trial, and a presumption of innocence until proven guilty, beyond reasonable doubt. In addition, I could utilize any technical loopholes to get her as minimum sentence as possible. Is that right? I don't know. I argue back, why does your university charge $40,000 a year from a student, and you teach him physics, yet, you or the university don't know whether he would graduate or find a reasonable job. Is that lying? I think both are systems: like Socrates Method may work for teaching adversarial system may work for the law.
Nothing better than the following movie shows how adversarial (democratic) system works: