One of the remarkable events in the celebrated Rodney King case in the United States of America in 1991 was the logic of the defense attorneys for the police. The defense argued that the policemen who battered Rodney King were endangered by him and that Rodney King’s conquered body which was shown by the video as it was “being brutally beaten, repeatedly, and without visible resistance” was, in fact, the source of this endangerment. The remarkable thing about this logic is not that it could be constructed at all but that it passed muster enough to lead to an acquittal of the police officers. But what is logical is not necessarily reasonable as the monstrous fallout after the acquittal verdict amply demonstrated. That it was possible to construct such logic is, obviously, a question of visibility; and this possibility itself shows how relative visibility can be. If the field of visibility is racially saturated it should not surprise that racist disposition would control and determine the construction of logic. Nor should it surprise that a jury could perceive a defense’s unreasonable logic as reasonable even to the extent the logic, effectively, carried the day in the jury’s decision to acquit ¾ in the case of the Rodney King trial ¾ the accused police officers. But one thing is for the defense, defending the accused, to construct some logic in defense of the accused, and yet another is for the prosecution, prosecuting the accused, to advance the same logic. This is the strangest thing, so far, in the on-going prosecution of the three police officers in whose custody the Nigerian asylum applicant, Marcus Omofuma, died on 1st May 1999.

On 4 March 2002 the three police officers were arraigned before the court in Korneuburg with the charge: “cruelty to a prisoner resulting in the prisoner’s death.” Shortly after reading out the indictment, however, the public prosecutor declared that the policemen’s gagging of Omofuma’s mouth with adhesive tape was a “justified” and “proportionate” measure in self-defense ¾ an argument that the defense would (and should have been expected to) deploy and insist on. Now, having agreed up front that the gagging of Omofuma’s mouth by the police (if at all an act of cruelty) was “justified” and “proportionate”¾ obviously a matter of visibility ¾ how does the prosecution intend to demonstrate, beyond reasonable doubt, that the collective action of the policemen amounted to cruelty, let alone that this cruelty was the very cause of Omofuma’s death, as charged?

What constitutes the said “cruelty”? Does it consist in the immobilization, constriction, or restriction of the rest of Omofuma’s body (minus his mouth and nostrils) with adhesive tape? It would seem from what transpired shortly thereafter that even this remaining potential element of “cruelty” appeared destined to be exorcised by the court ¾ apparently, in favour of the defense. For it happened that when the attorney representing Omofuma’s family and estate suggested, in reference to Prof. Brinkman’s (German) autopsy report, that Marcus Omofuma progressively had more and more difficulty to breathe as a result of the tight straps of tape around his body, the presiding judge was quick to cut him short and interject, rather impatiently, the opinion that the two German and Bulgarian medical experts tended to exceed their authority by stating as facts matters yet to be assessed by the court. Although this opinion of the presiding judge is not yet an outright rejection of the Bulgarian and German autopsy reports by the court it does, however, indicate clearly that the presiding judge has problems believing (and admitting?) the autopsy reports. Now, if the accused were charged with “cruelty to a prisoner resulting in the prisoner’s death” and the contents of the said “cruelty” were stripped bare of any meaning whatsoever doesn’t the urgent question arise: What, in deed, is the prosecution prosecuting, and the judge presiding over? Is the prosecution prosecuting Marcus Omofuma for dying in the custody of the police? It is no wonder that the defense, in its opening statements, began by congratulating the prosecution on its “objectivity”.

On what grounds does the prosecution accept as a “proven fact” the claim by one of the defendants, before the court has assessed the claim, that Marcus Omofuma bit his hand? We insist on this question because human bites are dangerous and as such would be expected to arouse in a trained, practicing, and healthy law-enforcement officer the urgent need to report immediately to the nearest medical facility for medical attention. We find it strange that the officer who claimed Omofuma bit him did not immediately take this course of action at the time and even stranger that neither the prosecution nor the judge nor the attorney representing Omofuma’s family and estate raised the question. The police officer’s failure to seek medical attention immediately after a human bite seems reasonable, even compelling, grounds to seriously doubt his claim that Omofuma bit him. This doubt is made all the more reasonable by the officer’s improbable claim that he reported the bite incident to the officers who took down his statement in Sofia, Bulgaria, but they refused to write it down. Why would any body refuse to record an obvious case of human bite reported by the law-enforcement officer who had been bitten? And did the officer himself, the victim of the human bite, protest the failure of the Bulgarians to record the bite, and if not, why? It’s either that there was no bite wound corroborating the claimed bite in the eyes of the Bulgarians, or that there was no biting by Omofuma whatsoever. In the absence of credible factual evidence and given only refutable claims would it be impertinent of us to say, after the presiding judge, that the prosecution in this case “tended to exceed [its] authority by stating as facts matters yet to be assessed by the court”?

But there is even a more revealing aspect of this biting hypothesis. Let us for a moment suppose that Omofuma did bite the police officer as claimed by him, and then ask: What can we learn about the officer himself from considering the possible reasons why he did not seek medical attention after he suffered a human bite? The first possible reason is that there were no medical facilities available in the neighbourhoods. This is highly improbable. But this improbability does not eliminate the relevance of the question whether professional help was sought after. Is there factual evidence that the officer made an attempt to obtain medical help whether or not a medical facility was available in the vicinity? The second possible reason is that the officer was not aware of the dangers of a human bite. For a man who obviously knows something about “risk” (he told the court that the deportation effort was at “risk” of abortion because of Marcus Omofuma’s behaviour); for a man who understands the value of money, the means to a good life, (he volunteered to participate in the deportation exercise because it carried a “bonus”), it is also highly improbable that he was not aware of the dangers of a human bite to human life. The third possible reason is that the officer did not care about the potential risks of a human bite and therefore that he cared little about his own health in particular and about human life in general ¾ even as he was greedy for more income. One then wonders what to expect of a law enforcement officer who has demonstrated so little regard for his own health and for human life. Why should we expect such an officer to treat any body better, let alone a prisoner? Why should we expect such an officer to not treat a prisoner worse, brutally? If the court accepts the officer’s claim that Omofuma bit him the court should then not discount the vital implications of the tendency for “cruelty” which is probably present in a law enforcement officer who has so little regard for human health and human life. If, on the other hand, the court dismisses, as a lie, the officer’s claim that Omofuma bit him the court, we expect, will draw the necessary implications of lying, to their logical conclusion.

While the defense’s plea of “not guilty as accused” was expected the accompanying justification of the plea was far beyond expectation. The defense argued that the defendants’ innocence was proved by the fact that the three police officers were not suspended immediately, but only after “media and political” protests became strident. Which by implication meant, the defense said, that the superiors of the three police officers did not think that their subordinates had acted unlawfully. The defense went on to plead that the police officers were unaware of the potential consequences of their actions. We are inclined to think that the defense would have found this latter excuse unnecessary were it actually convinced of the “innocence” of the accused. But because the defense knew deep down that its claim of “innocence” could not be held up without much difficulty it therefore found it necessary to gather as many supporting arguments as possible no matter how unreasonable: If we can’t overwhelm the court by the brilliance of our argument we must persuade it by the sheer weight of the number of our arguments we advance.

If memory serves me right it was way back in primary school, I think, that we were taught that ignorance of the law is not an excuse for breaking the law. I, for one, do believe that this maxim is applicable in Austria. As we know, the only person capable and empowered to make a binding determination of whether or not a law has been broken is a legal person, the court; and then not just any court. Which is why a previous determination by an Independent Administrative Tribunal (Unabhaengiger Verwaltungssenat) that gagging a deportee’s mouth with adhesive tape was unlawful and wrong, could be ignored by the Korneuborg court. This it did at the very first hearing by not raising any objection when the public prosecutor justified mouth-gagging-with-tape by the three accused police officers as an appropriate measure in self-defense. Whether or not the police officers’ superiors did not consider them to have done anything wrong is inconsequential and irrelevant. The inaction of the officers’ superiors proves nothing just as the fact that the Balkan Airways crew was neither accused nor suspended, proves nothing. Does the refusal of the Honourable Minister of Interior, Mr. Karl Schlögl, to resign prove his inculpability?

The wild speculation by the defense that Omofuma, gagged and strapped with adhesive tape to his seat and under the watchful eye of three experienced, trained and alert security officers, was in a position to take twenty-eight children (between 10-14 years old) hostage is preposterous and sad. But what is even more pathetic and for that matter rather nauseating is the connection the defense mightily sought to make with the World Trade Tower tragedy of September 11, 2001. The idea that Marcus Omofuma under conditions of strict, effective immobilization was in a position to orchestrate a tragedy similar to the September 11, 2001 disaster says something not very flattering about the defense. This attempted link of Omofuma to September 11, 2001 is childish and childishly sensational. It trifles the seriousness of the event and the many sad loses suffered by many a nice people. It suggests how some can very easily laugh off the tragic deaths of so many productive and innocent lives lost on that fateful September day. It says how insensitive some can be about the profound losses of others just because they have to earn a living. The masterminds and monster minds of the September 11, 2001 terror were not asylum seekers. The masterminds and monster minds of the September 11, 2001 terror were not on deportation. The monster minds and masterminds of the September 11, 2001 terror were professional terrorists. Marcus Omofuma was neither a terrorist nor a professional one. Marcus Omofuma was simply seeking asylum in Austria. He had merely asked to be granted a space in Austria, a very tiny living space appropriate to a single human soul, and the opportunity to make a living. How in the world could any body begin to use such a man to seriously remind us of the September 11 monster minds? In fact, if there was any element of terror in the events that led to Omofuma’s death (and there was) it was none other than the terror resident in the very indictment brought against the accused but which the prosecution, strangely, seems intent on downplaying. There is no way to begin to compare the September 11, 2001 monster minds with Marcus Omofuma unless as a mean, cheap and reckless strategy for diverting people’s minds from the real issue ¾ the cruelty committed against Marcus Omofuma ¾ and focusing them on a sensational issue for sympathetic effects. If by invoking September 11, the defense expected to play on the sentiments of the court, perhaps, it might earn more sentimental mileage by straight away branding Omofuma an Al-Qaeda operative. The defense, which has considerable affiliation with the Freedom Party of Austria, would seem to be replicating the party’s strategy of “whip-up-fear-of-the-foreigner-in-the-electorate” which seems to have worked so well for the party. Although the party denies that its recent string of electoral successes are rewards of its anti foreigner and xenophobic campaign rhetoric many do in fact believe there is a causal link. Which ever is the case, the defense should be reminded that although the Freedom Party may have recorded some successes, Austrians are not as gullible as it seems to be suggesting with its childish arguments. In fact on a few occasions the presiding judge had to chide the defense with such reprimands as: “Come on, get serious here!”

But the insensitive capacity of the defense to trifle is so unlimited. It recalled the way the Afghan prisoners were transported to Guantanamo, Cuba, as exemplary. By citing the gagging, blindfolding and ear plugging of the Guantanamo prisoners as the proper way “to avoid any risk” the defense, we must suppose, hoped to achieve certain effects. When, however, one seriously considers the incomparability of the alleged crime(s) of the Guantanamo prisoners and Omofuma’s ‘crime’, the huge universe of difference between mind-boggling terrorism and legitimate asylum seeking, it is repulsive disbelief of the defense rather than any sentimental embrace of its warped visibility that one comes away with.

© March 2002 Chibo Onyeji