Immigrant may lose family in abuse case

The Nigerian immigrant had spent two years in the Clark County jail, charged with a crime he steadfastly denied.

And on Dec. 17, the second jury to hear Fakoya’s case found him not guilty of a murder charge in the death of a 2-year-old boy who was living with his family.

Months of fasting, prayer and faith in the justice system had paid off. Fakoya believed he would finally be reunited with his wife and two daughters, returning to normal life.

He was wrong.

After he was released from jail, Fakoya was met by county officials who told him he could not return to his family and will forever lose parental rights to his two daughters unless he admits that he abused and killed Daniel Jaiyesimi.

Fakoya, a political science professor in Nigeria who now works as a casino manager, faces an impossible choice: Lose his family or admit to a crime he did not commit, something he says he will never do.

"He didn’t do it," said his attorney, Kristina Wildeveld. "He doesn’t want to admit something that he has worked so hard to prove he didn’t do."

In December 2007, Daniel Jaiyesimi and his family came to the United States from Nigeria, where the boy’s father, Musediq Jaiyesimi, had been friends with Fakoya.

The Fakoyas, who emigrated in 2003, sponsored the newcomers, though a year sharing a two-bedroom home in Spring Valley strained the friendship.

With four adults working different shifts, each took turns watching Daniel and the two Fakoya girls in their off hours.

On the afternoon of Aug. 8, 2008, Fakoya was home alone with the children. He said he tried to feed Daniel, but the boy began vomiting.

About 4 p.m., Fakoya called 911, saying Daniel was severely ill and un­responsive. The boy was rushed to University Medical Center, where doctors noted bruises on his back and bleeding inside his skull. He died three days later, and an autopsy disclosed an inch-long fracture at the back of his head.

Authorities believed the 2-year-old was the victim of child abuse, and that Fakoya, the last adult known to have been with him, was culpable.

Over the course of two trials, Fakoya would testify that the boy had fallen ill earlier in the day, while in the care of his father.

MEDICAL EXPERTS TESTIFIED AT TWO TRIALS

Myriad medical experts testified in two separate trials — the first ended with a hung jury — but only one said he could pinpoint exactly when Daniel was injured. Dr. Bennet Omalu, a forensic pathologist from California testifying for the prosecution, said the boy was injured just before the 911 call.

But the prosecution’s key witness came off as cocky and condescending as he bragged about his work on television true crime shows. And deputy public defender Norm Reed highlighted discrepancies in Omalu’s testimony, which contradicted that of the Clark County medical examiner who performed the autopsy.

Jurors didn’t buy Omalu’s testimony, said deputy public defender Adrian Lobo.

"None of it was believable,” Lobo said. "He was overselling it too much."

Fakoya’s lawyers presented medical experts and evidence that Daniel was sick for weeks before Fakoya’s call for help. Reed said there was evidence to support five different scenarios leading to Daniel’s death, and only one pointed to abuse.

"You can’t say it absolutely was abuse. You can’t say it was absolutely an infection or a clot in his brain, or something else," Reed said. "There were five different potential lethal (ailments). … You can’t say for sure which caused his death, and that’s where the doubt comes into play."

For the jurors, it came down to the credibility and character of Victor Fakoya, Lobo said.

SUSPECT FASTED DURING TRIALS

Fakoya and his wife, Lola, authorized his lawyers to speak for them. Reed said Fakoya is afraid to say anything because he may have to testify in Family Court.

Fakoya is described as a devoted Christian who fasted during both trials, which totaled more than a dozen weeks, drinking little and eating less.

"There were times we got on him because he needed to keep up his strength because he was going to testify," Reed said. "I think he felt compelled to stick to his beliefs."

A veteran defense attorney, Reed said he never doubted the innocence of his mild-mannered client.

"His demeanor with me, how he testified, he doesn’t seem to be ever in the position to get that mad that he could ever hurt anyone," Reed said. "There is no question in my mind he didn’t do it."

Fakoya remained composed even though his release from jail was delayed after jurors found him not guilty late on a Friday, Reed said. He was held through the weekend while authorities cleared up an immigration hold.

"Victor never complains about stuff,” Reed said. "He never says, ‘Poor me.’ "

After his release, the New York, New York welcomed him back to work as a count security team manager, where he is responsible for millions of dollars in cash. His employers gave him a free hotel room after learning he was not allowed to return to his home, court documents show.

"That speaks to his character there," Reed said.

Members of the jury who found him not guilty went to the Fakoya home in time for Christmas with presents for Fakoya’s two daughters, flowers for his wife and gifts for the family. They paid for the couple to see a show on the Strip.

No jurors could be reached for comment, but Wildeveld, who is handling Fakoya’s Family Court case, said that shows the jury believed Fakoya was innocent, not that prosecutors simply lacked enough evidence to convict.

Reed said he has never seen a jury react that way.

"It shows how certain they were of their decision," he said.

NO CONSTITUTIONAL PROTECTION

The Fifth Amendment of the U.S. Constitution forbids trying a defendant more than once on the same or similar charges following a legitimate acquittal. The so-called double jeopardy provision is intended to prevent government harassment.

Fakoya was found not guilty in criminal court, but double jeopardy isn’t a factor because he remains entangled in Family Court, where legal actions are aimed at protecting children rather than proving guilt.

Though he had never been in trouble with the law and family services had no involvement with his family before Daniel’s death, a parallel Family Court case, aimed at protecting his children, was opened shortly after he was charged in 2008.

In March 2009, the Clark County District Attorney’s Office filed Family Court papers stating that "due to his incarceration" Fakoya was unable to care for and support his children, and asked that he be required to take anger management and parenting classes.

Fakoya was willing to do that, his attorneys said, but the case stalled as the criminal prosecution continued.

But on Dec. 22, 2010, five days after Fakoya’s acquittal, the county lawyers resubmitted the original petition, stating that Fakoya’s children needed protection from him because he "is a person responsible for their welfare and another child has died as a result of abuse by Victor Fakoya."

Prosecutors again offered to let Fakoya dispose of the case by taking counseling, but this time they mandated child abuse counseling, which would require that he admits to abusing Daniel.

Failing to meet the requirements would result in permanent termination of his parental rights.

ATTORNEY CALLS PROSECUTORS VINDICTIVE

Wildeveld said prosecutors are simply being vindictive, harassing an innocent man.

Reed said the district attorney’s office is acting alone. A Department of Family Services case worker assigned to the matter recommended dismissal, finding that Fakoya presents no danger to his family.

"In light of the outcome of Mr. Fakoya’s criminal trial …. it is respectfully requested and recommended that this matter be dismissed and the case closed," the case worker wrote in a letter to the court.

While Fakoya cannot move back into his own home, he is allowed supervised visits with daughters Elizabeth, 5, and Christina, 3. Reed notes that Family Services must not be too worried about the children’s safety, since it named his wife, Lola Fakoya, to supervise those visits.

"It’s smacks of retribution," Reed said. "If the (Family Court case) was truly about protecting Victor’s children and having a trial in Family Court, why didn’t we do it before the criminal trial? They only did this after the fact. To me this looks suspicious and questionable."

With the district attorney’s office unwilling to bend and Fakoya refusing to admit guilt, Wildeveld is preparing for what will essentially be a third trial of the six-week murder case, this time in Family Court, set to begin April 28.

Opting for a trial is not without risk. Rules are different in Family Court, where the district attorney can prove a case with a less-stringent level of culpability than criminal court’s "beyond a reasonable doubt."

If he loses in Family Court, Fakoya would be forced to accept the case plan, with the required confession of guilt, or lose his parental rights.

Fakoya could simply accept the plan without challenging it. The case essentially would be over, and any admission of guilt couldn’t be used against him in criminal court.

But Fakoya is unwilling to lie for the sake of expediency.

"When you didn’t do something, why should you admit to something you didn’t do?” Reed said. "Where does it end?"

Wildeveld said Fakoya is willing to take the anger management and parenting classes the county initially wanted.

"He’s willing to do what he needs to do to resolve this thing, short of ever admitting that he harmed a child or killed a child," she said.

Deputy District Attorney Janne Hanrahan, who is handling the Family Court case, said state privacy laws prohibit prosecutors from commenting on on­going Family Court cases.

District Attorney David Roger also refused to comment.

But a motion submitted in Family Court shows prosecutors still believe Fakoya killed Daniel.

"The state opposes dismissal or closure of the case, on grounds that the same safety concerns that initially brought the children into custody still exist: Daniel Jaiyesimi, a child who lived in the Fakoya home, died of head injuries sustained as a result of nonaccidental trauma, and Victor Fakoya was the only person who could have caused those fatal injuries," the motion states.

Wildeveld calls that incredible.

"They know he’s not going to be willing" to say he abused Daniel, she said. "They are putting an obstacle in front of him that the only resolution would be that the rights to his own children would be terminated."

In the meantime, Victor Fakoya continues to live alone at New York, New York awaiting another trial that he hopes will prove his innocence and allow him to go home.

Contact reporter Francis McCabe at fmccabe@reviewjournal.com or 702-380-1039.