Prosecution, Fakoya OK terms to resolve case

Every night for months, Victor Fakoya cried as he told his children he was off to work.

In reality he was leaving them under court order and living at a hotel.

Since Fakoya's December acquittal of abuse and murder charges in the death of a 2-year-old boy, prosecutors have refused to let him live with his family unless he admitted to their accusations in a related Family Court child protection case.

But Fakoya refused to admit to something he didn't do, vowed to fight the case to the U.S. Supreme Court and spent every night for the past five months away from his wife and two daughters.

On Wednesday, after weeks of public scrutiny of the case, the district attorney's office and Fakoya's lawyer agreed to a resolution that probably will allow him to return to his family within the month.

Before Family Court Judge Steve Jones, Fakoya pleaded no contest in the child protection case to not calling 911 in a timely manner after realizing 2-year-old Daniel Jaiyesimi was unconscious.

After the hearing, a frustrated Fakoya smiled, if only for a moment.

"It's a smile that comes with sadness. I don't think I should plead to anything, but I know nothing about law. And basically I am listening to those who know about law," the Nigerian immigrant said, adding he trusted his lawyers, Kristina Wildeveld and Deputy Public Defender Norm Reed, with his life.

Fakoya said he agreed to the no contest plea because "I have to put my family first."

The past few months have put an emotional and financial strain on his family, and his daughters, Elizabeth, 5, and Christina, 3, don't understand the situation.

"It's like I am back, but it's as if I'm not back yet," he said.

And because Fakoya has only been allowed supervised visits with his children, he has had to pay for day care instead of watching them himself, which has swallowed up his income.

"We have no choice," Fakoya said.

Wildeveld said part of Fakoya's delay in calling 911 in August 2008 might be blamed on his background in Nigeria, where no emergency phone system exists.

When Fakoya saw Daniel had become unconscious, his first phone call was to the boy's father. A minute later, he called his wife, who told him to call 911. He then immediately called 911, the lawyer said.

Fakoya said in Nigeria the first phone call for a sick child would always be to the parents.

Authorities believed Daniel, whose family shared the Fakoya home, died as a result of child abuse. Fakoya was the last adult known to be with him.

But during two criminal trials, the first of which ended in a hung jury, medical expert testimony failed to narrow down what caused the boy's death or prove Fakoya caused an injury.

Daniel was sick for weeks before his death, and there was evidence to support five possible causes. Only one pointed to abuse, Fakoya's defense team said.

Before the first criminal trial, defense lawyers and prosecutors had agreed to resolve the child protection case if Fakoya admitted he was unable to care for his children because of incarceration.

Fakoya could have taken parenting and anger management classes, and the matter would have been resolved. But the child protection case lingered as the criminal case remained unresolved.

But five days after Fakoya's acquittal in December, the county lawyers handling the Family Court case refiled the original allegation, stating Fakoya's children needed protection because "another child has died as a result of abuse by Victor Fakoya."

Prosecutors again offered a potential resolution but only if Fakoya attended child abuse counseling, which would require that he admit to abusing Daniel. Failing to meet that requirement would result in permanent termination of his parental rights.

Wednesday's resolution of the case will save the county tens of thousands of dollars in legal fees because a hearing to essentially re-examine evidence in Fakoya's criminal case is no longer needed.

Reed said prosecutors were "trying to save face" by resolving the case. They faced the potential of losing the case again at an enormous financial cost and more public outrage.

Reed also said prosecutors couldn't accept losing the criminal trial.

District Attorney David Roger would not comment, citing state privacy laws prohibiting prosecutors from commenting on ongoing Family Court cases.

Wildeveld said the next step is for caseworkers from the Department of Family Services and prosecutors to decide what, if any, counseling Fakoya must complete before reunification with his family.

Wildeveld said that Fakoya has already attended parenting and anger management counseling.

At Wednesday's hearing, Jones said he would allow Fakoya to have unsupervised visits with his children if the Department of Family Services did not file a valid objection. As of late Wednesday, no objection had been lodged, and Jones was expected to sign off on unsupervised visitation today .

Wildeveld said the next step normally would be unsupervised overnight visits, followed by reunification of the family.

Months earlier, caseworkers appointed Fakoya's wife, Lola Fakoya, to supervise his visits with the children. That decision led many to question why prosecutors pressed the case against Fakoya if caseworkers trusted him enough to be alone with his family.

Meanwhile, Fakoya and his lawyers credited the Las Vegas Review-Journal's reporting on the Family Court case for pressuring the district attorney's office to resolve it. After the Review-Journal first reported the situation in April, jurors from the first and second trials spoke out against the prosecution's pursuit of Fakoya in Family Court.

"You and your readers forced them into this," Reed said. "I think the public has spoken, and that had a lot to do with it."

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