ILF-Tunisia Case Notes: The Power of Defense Investigation

The following cases show the positive impact that prompt and thorough case investigation can have on the defense lawyer’s understanding of the facts of the case, and on case outcomes. The ILF’s attorney performance standards state that defense investigation is necessary to ensure quality, effective legal representation, and that it should be conducted regardless of the client’s admissions or statements of facts constituting guilt. This investigation should include, but is not limited to, conducting interviews with and taking statements from complainants, witnesses and police officers; visiting and photographing the scene of the incident; documenting any injuries to the client or damage to property; collecting evidence and viewing evidence in the possession of the government; and consulting with experts about facts and evidence pertaining to the case.

Investigation is not a part of the typical defense practice in Tunisia. However, as ILF-Tunisia’s consultant lawyers have continued to receive mentorship on proper investigation techniques from the ILF’s International Fellows, they have developed an understanding of proactive defense investigation as a critical part of their practice in every case, no matter how clear the case may seem or how much information is ostensibly contained in the court file.

In the matter of H.A. (ILF 51, Consultant Attorney Hanen Fathallah)
The client in this case, H.A. is 36 years old, single, and lives at home. He struggles as a day laborer to help support his large family, as neither of his parents has a steady job.

During a public riot early in 2016, a local Carrefour Supermarket was broken into and over 125 Thousand Dinar (approx. $53,000) in goods and cash were stolen. Shortly after the riot, the police searched H.A.’s house and found a small amount of items believed to have been stolen from the Carrefour in H.A.’s bedroom (juice, shampoo and shower gel).

H.A. was arrested and charged with theft, property damage, and possession of stolen property. Four co-defendants were also charged in the looting of the Carrefour.

H.A. denied taking part in the break-in and claimed to have found the items on the street, and none of the prosecution witnesses put H.A. at the scene of the crime during the riot or subsequent break- in. Attorney Hanen Fathallah examined the prosecution’s case file and could not identify any evidence directly implicating the client in the break-in, with the possible exception of surveillance footage from the Carrefour from the time of the crime, which the Carrefour had handed over to the court. Ms. Fathallah demanded to see the surveillance footage through both written and oral requests, in order to determine whether or not her client appeared in the video.

The judge agreed that defense counsel has a right to see the evidence, but because the court lacked the proper equipment for playing the video, it was not possible to view the video in the courthouse. Ms. Fathallah requested that defense counsel, the prosecutor and the court clerk go to the Carrefour to watch the video on their equipment. This request was denied by the court. She then requested a copy of the video, so that she could view it herself. This request was also denied.

Ultimately, after weeks of unsuccessful attempts by Ms. Fathallah to view the video, the case proceeded to trial. Ms. Fathallah argued that it was the prosecution’s burden to prove the case, and that the fact that neither she nor the court were able to view the video should disqualify its use as evidence, particularly given her extensive efforts to try and view it. She further argued that the prosecution had presented no evidence placing the client at the scene of the break-in.

The court acquitted H.A. of the felony theft and property damage charges against him. Based on the items discovered in his room, he was convicted of a misdemeanor possession of stolen property charge, and was given a time-served sentence and released. The other four co-defendants, none of whom had lawyers who pursued investigation demands, were all convicted of the felony charges, and were sentenced to between 4 and 7 years’ imprisonment.
In the matter of S.B.F. (ILF 139, Consultant Attorney Chiraz Bejaoui)
The client in this case, S.B.F. is 22 years old. One of four brothers, S.B.F. lost one brother after the Revolution, while another of his brothers is in prison and his third brother is mentally ill and unable to work. S.B.F. also suffers from mental health issues, including self-harm. He lives at home with his mother, father and brother, and picks up odd jobs to help support his family.

The complainant in the case alleged that someone broke into his house during the day by breaking the iron gate and stole several large-scale items, including a flat-screen TV. Three fingerprints were allegedly found on a cardboard box and a jewelry box at the scene of the crime, and a fingerprint report stated that the prints were a match to S.B.F. Based solely on the fingerprint report, S.B.F. was called into the police station for questioning. During S.B.F.’s interrogation by the police and the prosecutor, S.B.F. consistently denied the charges. Besides the fingerprint report, there was no other evidence connecting S.B.F. to the crime.

Attorney Chiraz Bejaoui, with the assistance of an ILF-Tunisia paralegal and an International Fellow, conducted extensive investigation in this case, including consulting experts and visiting the scene of the alleged crime. Based on this, they were able to identify several major flaws in the prosecution’s case. Firstly, Ms. Bejaoui conducted research and spoke with experienced lawyers on the forensic science of fingerprint evidence so that she could properly interpret the fingerprint report, as well as investigating Tunisian procedural law regarding fingerprinting. Based on this investigation, she concluded that the report was fundamentally flawed. The ‘report’ contained no scientific analysis or description of any procedures for analysis. As Ms. Bejaoui learned and later argued before the court, a certain number of “matches” must be found between the latent print and the individual’s print in order to have any modicum of reliability. No such analysis was included in the report, which provided no basis for the conclusion that the prints were that of S.B.F. The lack of description of the procedures also meant that there was no way to rule out possible contamination of the sample. Moreover, the report contained no indication of who conducted the test. According to Tunisian procedural law, the police are not authorized to take the fingerprints or conduct fingerprint tests, and both stages must be conducted by an expert.

In addition to her investigation into the fingerprint report, Ms. Bejaoui visited the scene of the alleged crime. She discovered that the home was in a large and crowded apartment building surrounded by many shops, and that the iron gate in question would have required a large tool to break or bore a hole in. These facts, along with the fact that the crime was allegedly committed during the day and the fact that multiple large items including a flat screen TV were alleged to have been stolen, led Ms. Bejaoui to question the veracity of the complainant’s story. She attempted to speak to the complainant, but was unable to, and also attempted to canvass the apartment building for witnesses, but could not find anyone who said they had witnessed the alleged crime. Ms. Bejaoui documented her investigation and took pictures of the scene.

In court, Ms. Bejaoui argued that the court should not adopt the fingerprint report as evidence, and that the lack of any clear basis for the identification of the fingerprints as S.B.F.’s, along with the lack of information about who conducted the analysis, violated S.B.F.’s Constitutional rights to have a fair trial and to present a defense, since S.B.F. could not know the full extent of the evidence against him or challenge the results of the test or the authority or expertise of the person who conducted it. She also presented her argument that the claimant’s version of events was inconsistent with the facts she had observed while visiting the crime scene.

Despite these novel arguments challenging fingerprint evidence, the court found S.B.F. guilty and sentenced him to six years’ imprisonment. ILF-Tunisia is currently appealing this case, and will argue that the lower court made its judgment based on flawed evidence.

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