This is the fourth installment in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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III. APPLICATION OF THE Furundžija PRINCIPLE—SITUATIONS OF BIAS
A. Ex parte Communications
ECCC Case 002, Ieng Sary’s motion to Disqualify Judge Silvia Cartwright
I first discussed the issue of ex parte communications on the part of the judge, which in most cases, is to the detriment to the Defence. I chose an example from the ECCC, where the Defence learned that one of the sitting Judges, Judge Silvia Cartwright, was participating in meetings with the International Co-Prosecutor Andrew Cayley and the ECCC Deputy Director of Administration. No one from any of the Defence teams were invited and neither was the head of the ECCC Defence Support Section (DSS). Obviously, these meetings were of concern to the Defence once they were learned about. They certainly amounted to ex parte communications. But as I noted earlier, when in doubt or not in possession of sufficient information showing bias, best to move incrementally. So, after all sorts of efforts to get the participants to these private meetings to come clean, the Defence filed a request for investigation into these ex parte communications. The Trial Chamber declined to investigate, justifying the meetings as necessary for the coordination of the UN component of the ECCC. Having no choice, the Defence appealed, seeking Judge Cartwright’s disqualification on the grounds that the meetings had no express legal basis. Since Prosecutor Cayley would continue to appear before Judge Cartwright, these ex parte communications violated applicable ethics standards. The Supreme Court Chamber of the ECCC ultimately dismissed the appeal but found that:
[A]bsent any institutional basis either in the ECCC founding documents or the Internal Rules such meetings could be perceived as being related to a case or cases in which the attending judge has concern. As such they may create the appearance of asymmetrical access enjoyed by the prosecutor and the trial judge. Therefore, in order to avoid such appearance and giving rise to disqualification motions it would seem advisable to reconsider the make-up of any meetings that trial judges wish to have with the prosecutors by allowing the participation of the Defence Support Section or members of the defence teams, as appropriate.
Two days after the appeal decision, it came to light that Judge Cartwright was continuing to have ex parte communications. Completely disregarding the Supreme Court Chamber, Judge Cartwright sent Prosecutor Cayley what was supposed to be a private e-mail, a message on matters seemingly related to the case. Judge Cartwright inadvertently sent the e-mail to the Case File distribution list, including the IENG Sary Defence. The e-mail stated: “Of Course I was only trying to see the lighter side. As you know, Andrew, I am seriously considering my own position. I shall not make a hasty ydecision [sic]. Silvia.” This prompted another submission for the disqualification of Judge Cartwright because “the nature of Judge Cartwright’s association with International Co-Prosecutor Cayley shows actual bias or, at a minimum, the appearance of bias.” The Defence argued that Judge Cartwright knew that ex parte communications with a prosecutor could give rise to applications for her disqualification, and disregarded the guidance of the Supreme Court Chamber.
Under ECCC Internal Rule 34(2):
Any party may file an application for disqualification of a judge in any case in which the Judge has a personal or financial interest or concerning which the Judge has, or has had, any association which objectively might affect his or her impartiality, or objectively give rise to the appearance of bias.
The ECCC has adopted the Furundžija standard. Under this standard, the Defence argued that “Judge Cartwright’s relationship with International Co-Prosecutor Cayley developed such that they shared information ex parte regarding Case 002 jurisprudence.” With Judge Cartwright’s failure to disclose the nature of her participation in the meetings, Judge Cartwright’s conduct would suggest that it could give rise, at a minimum, to the appearance of bias.
On the second challenge (after becoming aware of Judge Cartwright’s e-mail), the Trial Chamber took the view that the meetings served an administrative purpose, as they “were connected with non-judicial, managerial, and administrative issues affecting the international component of the ECCC rather than the substance of the proceedings.” The Trial Chamber reasoned this on the basis of the email communications mentioned above. The Trial Chamber considered that the non-judicial, managerial and administrative nature of the meetings did not give rise to any sanctions or disqualification, “neither, ipso facto, [did] the continuing communication between the participants in the meetings establish such grounds.” The Trial Chamber noted that no parties to proceedings are permitted to communicate directly with judges about matters that relate to the substance of judicial proceedings, and that the Defence did not offer evidence to “suggest that this practice is applied inconsistently. The Chamber also denied the disclosure request, stating that that it had no power to make such an order.
B. Actual Bias
ECCC Case 002, Application for Disqualification of Judge Marcel Lemonde
In Case 002, an eye-witness, Mr. Wayne Bastin, a former Chief of Intelligence and Analysis Unit of the Office of the Co-Investigating Judges (“OCIJ”), informed a member of the IENG Sary Defence that Judge Marcel Lemonde in a meeting with OCIJ top investigators noted that he would prefer that they “find more inculpatory evidence than exculpatory evidence.” Judge Lemonde in his written response to the IENG Sary Defence’s application to disqualify him stated that he could not recall the incident, but if he did say the words attributed to him, they were made in jest. Judge Lemonde agreed that the Furundžija standard applied, but argued that the words should not have been taken as instructions, and that a fair-minded observer would have noticed that the meeting was “a relaxed, informal, and lighthearted one.” He also asserted that he was speaking in English at the time, which is neither his first nor working language, and that “no-one took any such remarks seriously.”
The IENG Sary Defence argued that Judge Lemonde effectively instructed his senior international investigators — who worked under his direction and authority— to conduct a resulted-targeted investigation designed, inescapably, to benefit the prosecution while manifestly trampling over the rights of the accused. The statement made by Judge Lemonde, if followed through, would have seriously prejudiced the Charged Persons’ right to a fair trial. In the ECCC system, designed after the French civil law judicial system, the Co-Investigating Judges are in charge of collecting evidence, screening for exculpatory or inculpatory evidence, and ascertaining the truth. The IENG Sary Defence had its hands tied, and as such, was at the mercy of the Co-Investigating Judges. On the one hand, the Defence is not permitted to search for exculpatory evidence, since this is the job of the Co-Investigating Judges. On the other hand, Judge Lemonde had instructed the OCIJ staff to search for only inculpatory evidence. This should have been sufficient to establish actual bias under Furundžija.
Additionally, Judge Lemonde’s behavior would have lead a reasonable observer to perceive bias, as required by Furundžija. How would a “reasonable observer,” reasonably informed, not apprehend at least the appearance of bias in this case, let alone any actual bias on the part of Judge Lemonde? The ECCC Pre-Trial Chamber dismissed the application on the grounds that the Defence provided insufficient evidence to make a finding for bias. The Pre-Trial Chamber considered that the evidence (the notarized statement signed by Mr. Bastin which the Chamber considered “incorrect”) was insufficient and not probative as no witnesses verified the identity of Mr. Bastin. The Pre-Trial Chamber noted that Mr. Bastin said he took “brief dot point notes,” which were not produced and that Mr. Bastin’s statement provided no context of the conversation where Judge Lemonde uttered the statement. Additionally, the Chamber reasoned that the context of the meeting, a private meeting with OCIJ staff, and the fact that Judge Lemonde was speaking English (not his working language), showed that the words could not be interpreted as “having their full meaning in English.” The Chamber also took Judge Lemonde’s word that the statements were made in jest. Without any mention of Furundžija or any supporting authority, the Chamber considered the evidence supporting the application “not very strong.” In dismissing the application the Chamber reasoned that:
The Pre-Trial Chamber notes that the Co-Investigating Judges are more than two years into their judicial investigation of Case No. 002. By ordering the Provisional Detention of the Charged Person, Judge Lemonde has already found pursuant to Internal Rule 63(3)(a) that ‘there is well founded reason to believe that the [Charged Person] may have committed the crime or crimes specified in the Introductory or Supplementary Submission.’ The Charged Person is, of course, entitled to the presumption of innocence and to an impartial judicial investigation. The nature of a judicial investigation is that it is an ongoing process of obtaining and evaluating evidence, with a conclusion being reached to either indict or dismiss in respect of matters charged. It is noted that the Co-Investigating Judges had announced on 27 May 2009 that they planned to finish the investigations by the end of the year which means that they were at the time closing to a conclusion. By finally forming an opinion on the investigations it is not likely and cannot be expected that the Co-Investigating Judges do not have a preference as to the nature of evidence to be found, as they must have an idea by now of the conclusions they might reach based on the evidence collected.
Interestingly, the Chamber noted that an expression of “preference” by an investigating Judge to his or her staff should be distinguished from an explicit instruction or direction to search for only inculpatory evidence and to exclude exculpatory evidence, and Judge Lemonde’s statement did not amount to an “instruction.” In other words, the Pre-Trial Chamber suggested that an independent Co-Investigating Judge can express “preference” to exclude exculpatory evidence to his staff (who will most likely follow that “preference”)!
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 Case of NUON Chea et al., 002/09-19-2007-ECCC-TC, IENG Sary’s Request for Investigation Concerning Ex Parte Communications Between the International Co-Prosecutor, Judge Cartwright and Others, 24 November 2011, E137/3.
 Case of NUON Chea et al., 002/09-19-2007-ECCC-TC, Decision on Motions for Disqualification of Judge Silvia Cartwright, 2 December 2011, E137/5.
 Case of NUON Chea et al., 002/09-19-2007-ECCC-TC, IENG Sary’s Request for Investigation Concerning Ex Parte Communications Between the International Co-Prosecutor, Judge Cartwright and Others, 24 November 2011, E137/3, paras. 29–39.
 Case of NUON Chea et al., 002/09-19-2007-ECCC-TC/SC(12), Decision on IENG Sary’s Appeal against the Trial Chamber’s Decision on Motions for Disqualification of Judge Silvia Cartwright, 17 April 2012. The Supreme Court Chamber characterized the motion under Rule 35 (Interference with the Administration of Justice), as opposed to Rule 34 (Recusal and Disqualification). The standard for Rule 35 requires a knowing and willful interference with the administration of justice. This is a higher standard than the Furundžija (appearance of bias) required by Rule 34.
 Id., para. 24 (emphasis added).
 Case of NUON Chea et al., 002/09-19-2007-ECCC-TC, IENG Sary’s Rule 34 Application for Disqualification of Judge Silvia Cartwright, or in the alternative, Request for Instruction and Order to Cease and Desist from Ex Parte Communications & Request for Disclosure of Ex Parte Communications, 27 April 2012, para. 2.
 Id., para. 7.
 Id., para. 10.
 ECCC Internal Rule 34(2).
 See, e.g., Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ (PTC 01), Decision on Co-Lawyers’ Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea, 4 February 2008.
 Case of NUON Chea et al., 002/09-19-2007-ECCC-TC, IENG Sary’s Rule 34 Application for Disqualification of Judge Silvia Cartwright, or in the alternative, Request for Instruction and Order to Cease and Desist from Ex Parte Communications & Request for Disclosure of Ex Parte Communications, 27 April 2012, para. 11.
 Case of NUON Chea et al., 002/09-19-2007-ECCC-TC, Decision on IENG Sary’s Application for Disqualification of Judge Cartwright, 4 June 2012, para. 15.
 Id., para. 17.
 Id., para. 18.
 Id., para. 21.
 Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ (PTC), IENG Sary’s Application to Disqualify Judge Marcel Lemonde & Related Request for a Public Hearing, 29 October 2009, paras. 1, 2.
 Case of NUON Chea et al., 002-09-10-2009-ECCC-OCIJ/PTC(01), Consolidated Response by Co-Investigating Judge Marcel Lemonde to Applications to Disqualify Filed on Behalf of Ieng Sary and Khieu Samphan, 9 November 2009, para. 8.
 Id., para. 28.
 ECCC Internal Rule 14(5).
 Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), IENG Sary’s Application to Disqualify Judge Marcel Lemonde & Related Request for a Public Hearing, 29 October 2009, para. 23.
 ECCC Internal Rule 55(5).
 Case of NUON Chea et al., 002/09-10-2009-ECCC/PTC(01), Decision on IENG Sary’s Application to Disqualify Co-Investigating Judge Marcel Lemonde, 9 December 2009, para. 20.
 Id., para. 21.
 Id., para. 22.
 Id., para. 23.
 Id., para. 24.
 Id., para. 25.