Pat Lykos: Wrong Once More

 Posted on March 03, 2011 in Uncategorized

University of Houston law professor Jordan Paust, who reviewed the bilateral treaty between the U.S. and Nigeria this week, said it includes a long list of offenses for which a suspect is subject to extradition, including manslaughter.But the treaty does not specifically include the offense of reckless injury to a child or child endangerment, Paust said, which he predicted could jeopardize Tata's extradition."This would be a very serious mistake not to charge for manslaughter in view of the treaty," Paust said. "Ignorance of the law is not a defense, not even for a prosecutor."Lykos said the DA's office disagreed with Paust's interpretation of the law, saying both manslaughter and reckless injury to a child are second-degree felonies in Texas.


Professor Paust is sugarcoating it. Unless Pat Lykos spreads around some bribes, Nigeria will not extradite Jessica Tata to face charges for reckless injury to a child or child endangerment.

Whether they are the same degree of felonies has nothing to do with it. Nigeria has no obligation to extradite Jessica Tata to the United States for offenses that are not covered by the extradition treaty between the US and Nigeria. Reckless injury to a child is not explicitly covered. Child endangerment is not explicitly covered. Manslaughter is the explicitly-covered charge closest to Jessica Tata's conduct.

But the treaty (entered into between the US and the United Kingdom in 1931, when Nigeria was a British colony) does not follow the Texas Penal Code's definition of manslaughter. Whatever the charge is called in Texas, if it has the same elements as what the common law would have called manslaughter in 1931, it is extraditable.

In the case of Bateman, 19 Cr. App. R. 8 (1925) the British Court of Criminal Appeal held that, in order to prove manslaughter, the government has to prove "that A. owed a duty to B. to take care, that that duty was not discharged, and that the default caused the death of B"; and that "the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment"-that is, the negligence must be gross negligence.

Jessica Tata, the subject of the extradition discussion, is charged with six counts of reckless injury to a child, and three counts of abandoning a child. Four children died in the fire in the daycare while allegedly under Tata's care. The counts not involving deaths (some of the reckless-injury charges, and the three abandoning charges) are pretty clearly not extraditable; if Nigeria extradites Tata to the United States, part of the deal will be that she not be prosecuted for those unextraditable offenses. The counts involving deaths may be extraditable, if they are common-law manslaughter.

In Texas, the death of the complainant is never an element of a reckless-injury-to-a-child case, nor of an abandoning-a-child case. In the first instance, the same penalty applies whether the defendant recklessly causes serious bodily injury or death; in the second instance, the same penalty applies whether the child is injured or not, if the defendant placed the child in imminent danger of harm. Since neither has as an element the death of a complainant, neither of the types of charge against Tata is extraditable.

If Ms. Tata were charged with manslaughter under the Texas Penal Code ("A person commits an offense if he recklessly causes the death of an individual"), and make Ms. Tata extraditable for that charge. Whether "recklessly causing the death of an individual" would be close enough to common-law manslaughter for Nigeria's Court of Criminal Appeals (which may be as corrupt as the Texas Supreme Court) to allow Ms. Tata's extradition is another question entirely.

Lest there be any doubt, Pat Lykos is not an international-law expert (neither am I, but I at least have the twin advantages of being curious and not always having to be right). Professor Paust is.

When Professor Paust says, "what you've charged her with could jeopardize her extradition," Pat Lykos could read the extradition treaty and give some thought to filing manslaughter charges. Or she could bow up and publicly declare that she did it right in the first place.

The first way would be better if Pat Lykos cared about putting Ms. Tata to trial, but the second way probably plays better with Lykos's cadre of Republican women voters.

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