"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde

Tuesday, July 4, 2017

Malawian Prisoner Released After Twelve Years on Death Row

Malawian prisoner Ishmail Gome has been released from death row, nearly 12 years after he was convicted and sentenced to death for a crime he did not commit.

Cornell law students working with my International Human Rights Clinic were instrumental in securing his release. Maame Esi Austin (JD ’17) worked with the Malawi Human Rights Commission and Malawian lawyer Chimwemwe Chithope-Mwale to draft the legal arguments seeking his immediate release. Charlotte Hopkinson (JD ’18) and Thalia Gerzso (LLM ’17) drafted an amicus curiae brief on behalf of myself, Professor William Schabas, and Professor Christof Heyns that outlined the risk factors for wrongful convictions present in Mr. Gome’s case. The clinic team also obtained a declaration from neuropsychiatrist Dr. George Woods, who attested to the psychological torment Mr. Gome had endured on death row.

Ishmail Gome had been accused of killing a rival for the chieftainship of his village. All of the physical evidence, however, pointed to his co-defendant, Pitilizani Chabuka. Mr. Chabuka testified against Mr. Gome at trial in exchange for the prosecution’s agreement to reduce the charges against him. Ten years later, he came forward and admitted that he had fabricated the charges against Mr. Gome.

Mr Gome is the only son and the last of nine children in his family. He was unable to attend school because of his family’s poverty. Nevertheless, he grew to become the breadwinner of his family, working long hours to provide for his parents and eight older sisters by farming and selling maize, soya beans, tobacco and nuts. Mr Gome eventually got married and had five children of his own.

On the morning of January 12, 2004, Foliasi Chibwazi was found dead. The police discovered a single set of footprints, beginning at the scene of the crime and leading to the home of Pitilizani Chabuka, Mr Gome’s nephew. After Mr Chabuka was arrested, he implicated his uncle Ishmail Gome as an accomplice in the murder.

Mr Gome was later brought to the police station, where he was detained for 10 days. He was beaten, deprived of food, and coerced into confessing guilt.

There was no evidence linking Mr Gome to the murder other than the testimony of Mr Chabuka and his coerced confession. All the physical evidence pointed to Mr Chabuka as the sole perpetrator of the crime.

On 13 October 2015, Pitilizani Chabuka finally admitted that he alone carried out the crime at the request of his grandfather, who did not wish to see the deceased take over the chieftaincy. He was adamant that Ishmail Gome “did not play any role in the offence and is innocent.” He came forward after realizing that his false testimony contravened his religious beliefs, and stated that he felt terrible about falsely implicating Mr Gome in the offence, “because God knows I have sinned.”

For the last 10 years, my clinic has been assisting Malawian prisoners facing the death penalty. In 2007, the Malawi High Court struck down the mandatory death penalty under the Malawian Constitution. Since then, the clinic has assisted in the representation of approximately 170 prisoners, all of whom were once sentenced to death under the unconstitutional mandatory sentencing regime.

The High Courts have now held 152 resentencing hearings at which Malawian defense attorneys presented mitigating evidence obtained by Malawian paralegals trained by the clinic. Volunteers funded by the NGO Reprieve and Cornell’s Center on the Death Penalty Worldwide have played a crucial role in this project by interviewing prisoners and their families, drafting legal documents, and serving as a liaison with local stakeholders.

As a result of this work, 121 former death row prisoners have been released, and another 28 have received a determinate sentence. None have been resentenced to death, and only one has received a life sentence. The results are a testament to the power of mitigating evidence, and to the joint efforts of Malawian lawyers, judges and NGOs working in tandem with their international partners.

Source: Cornell Law School, blog, Sandra Babcock, June 28, 2017

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