The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal

While we do not believe the trial judge testified untruthfully, we recognize that the written word in the record is ‘black and white’ evidence of what did or did not occur, whereas an individual’s recollection of those same events blur into gray. This case demonstrates the validity of an old legal truism: God may know but the record must show.

Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997) (emphasis added).

Karnavas_ADCTraining_18Jun14_4On 18 June 2014, I delivered the third installment of a lecture series on ethics to members of the Association of Defence Counsel Practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) and others. The previous lectures were on Judicial Ethics in the International Tribunals and Conflicts of Interest. This lecture focused on due diligence and the imperative of perfecting the record by properly preserving all potential errors for appellate review. The lecture lasted 2 hours. Certificates were issued to the participants for those who wished to claim 2 hours of CLE credits on ethics with their national / state bar.

Preliminary remarks

Counsel before any of the international tribunals should always assume that no matter what the outcome of a trial, the case will end up on appeal. If you get an acquittal, you will need to defend it from being overturned on appeal. If there is a conviction, there is still hope that on appeal it – or at least part of it – will be overturned, thus lessening your client’s sentence.

Whether you are trying to protect your client’s acquittal or trying to overturn your client’s conviction, you will be relying on the record: the pre-trial and trial record. Since more cases for the defence are lost than won, the focus should be on making a record that sets up the appeal. And in making the record, Counsel should primarily be concerned with preserving and perfecting errors of law and fact. In other words, from the moment Counsel is in the case, he or she must be thinking of the appeal. In fact, everything that is done, every submission made, every question asked on direct or cross examination, every piece of evidence tendered or attempted to be tendered, every objection made, every response to an objection made, and every legal and factual argument made is for the benefit of the Appeals Chamber. Counsel is making a record not just for the final brief – and to a lesser extent the closing argument – but also, and more importantly, for the appeal. The record is both sword and shield. Surrender the record and the client is exposed to unpreserved errors, which, in most instances, are irretrievable. As Stanley Neustadter puts it:

For us appellate lawyers the eight most embittering words in the lexicon are “this issue is not preserved for appellate review.”

This lecture was considered an ethics lecture – as opposed to a lecture on trial and appellate advocacy – because it discussed Counsel’s ethical and professional obligations to the client. The client has rights; Counsel has obligations. There is a need to appreciate these rights in order to fully appreciate the lengths to which Counsel must go to meet his or her obligations in ensuring that the client meaningfully enjoys these rights throughout the proceedings. And in my opinion, it all comes down to two words: due diligence. When these two words are phrased in this order, we are really talking about the diligence Counsel must exercise towards his or her client. Rearrange the order as we see in the title of the lecture and we see a slightly different connotation: the diligence that is due. Due to whom? To the client. Based on what? The client’s fair trial rights. So, when I am asked to define due diligence, I give the simple definition, the diligence that is due.

Due Diligence

DiligenceI began the lecture by speaking about due diligence as a duty owed by Counsel to the client. Counsel’s duty of diligence is not a new development, but is evident in national rules. I briefly discussed examples in national codes such as the American Bar Association Model Rules of Professional Conduct and the French Règlement Intérieur National de la profession d’avocat, and how this duty has been subsequently codified in the international codes of professional conduct for counsel at the international tribunals.

The duty of diligence is easier described than defined. To illustrate what is meant by due diligence, I noted judicial pronouncements in Tadić 1Prosecutor v. Tadić, IT-94-1, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998 (Tadić Decision). and Krstić 2 Prosecutor v. Krstić, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (Krstić Decision). in which ICTY judges commented on the meaning of due diligence. These decisions showed that due diligence is defined by the context, taking into account the factual circumstances and progression of the case. In Tadić, the Appeals Chamber stated that: “[t]he requirement of due diligence includes the appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.” 3Tadić Decision, para. 47. The Appeals Chamber in Krstić added that Defence Counsel must also bring “any difficulties in relation to obtaining evidence on behalf of the accused . . . to the attention of the Trial Chamber.” 4Krstić Decision, paras. 5, 9-14.

The duty of diligence is grounded in the accused’s fair trial rights. Fair trial rights are universally recognized and are protected by the statutes of each international criminal tribunal and international human rights instruments such as the International Covenant on Civil and Political Rights. Counsel’s ability to satisfy the duty of diligence is paramount to ensuring that the client receives a fair trial. Or, put another way: the client receives the effective assistance of counsel.

After focusing on the fair trial rights of the accused, which need be diligently protected by Counsel, the lecture discussed cases concerning the accused’s right to effective assistance of Counsel. As examples, I briefly noted the appeals in Krajišnik 5Prosecutor v. Krajišnik, IT-00-39, Appeal Judgement, 17 March 2009 (Krajišnik Appeal Judgement). and Nahimana, 6Prosecutor v. Nahimana, ICTR-99-52-A, Appeal Judgement, 28 November 2007 (Nahimana Appeal Judgement). in which the accused argued that their fair trial rights were violated because they were ineffectively represented at trial.

In Krajišnik, trial Counsel, Deyan Brashich, was disciplined for professional misconduct by the New York Bar and failed to disclose it to the Registrar, in breach of his professional duties under the ICTY Code of Professional Conduct for Counsel Appearing before the International Tribunal (ICTY Code of Conduct), which resulted in his removal ten days before the beginning of the trial. 7Krajišnik Appeal Judgement, para. 44. Mr. Brashich failed to hand over the case material in a timely manner to the newly-assigned Counsel, Nicholas Stewart, and also failed to provide Mr. Stewart with significant work product. 8Id., paras. 45, 46. The ICTY Appeals Chamber held that Counsel is presumed effective, unless this presumption is rebutted by evidence to the contrary, and that “unless gross negligence is shown in the conduct of defence counsel, due diligence . . . will be presumed.” 9Id., para. 42.

In Nahimana, trial Counsel and Co-Counsel were absent or late on several occasions during the presentation of evidence. 10Nahimana Appeal Judgement, para. 135. The ICTR Appeals Chamber held that in order for a claim alleging ineffective assistance of counsel to succeed, the accused must show that there was gross professional misconduct or negligence that occasioned a miscarriage of justice. 11Id., para. 130.

For comparative purposes, I looked to a seminal US Supreme Court case, Strickland v. Washington. 12Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim for ineffective assistance of counsel under Strickland, the accused must prove that the trial lawyer’s performance fell below an “objective standard of reasonableness,” and that there was a reasonable probability that – but for Counsel’s unprofessional errors – the result of the proceeding would have been different. 13Id. at 688, 694.

The point in discussing the standards on ineffective assistance of counsel was to show how high the bar is set in overcoming the presumption of effective representation, and that not being due diligent invariably results in the client suffering irreparable consequences. Put differently, don’t expect an Appeals Chamber to grant post-conviction relief based on ineffective assistance of Defence Counsel.

Duty of Diligence – Making the Record and Perfecting Grounds of Appeal

After setting the stage, it was time to get to the core of the lecture: being due diligent by perfecting the record for appeal. Counsel’s ability to perfect the record for appeal is essential to satisfying the duty of diligence and protecting the client’s fair trial rights. I began by giving an overview of what is included in the record and why it is important to preserve it for appeal. It is crucial that Counsel keep in mind that one party in an adversarial trial will lose, and no matter how strong one’s case may be, Counsel must prepare for that eventuality. Appellate Chambers are limited on what they may review on appeal; they are limited to the record. The consequences of not having a record can be devastating to protecting the accused’s fair trial rights on appeal. Counsel should always conduct the case with an eye to appealing and reopening issues previously decided against the client. But, in order to do this, Counsel must know his or her destination first. Counsel must know the standards of appellate review: errors of fact, errors of law, mixed errors of fact and law, and the cumulative effects of errors.

Next: Part II – How to Make the Record.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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