On 2 August 2016, a prosecution expert lashed out at the Defence while being cross-examined at the ECCC. The judges of the trial chamber sat silent. In an opinion piece published 8 August 2016 in The Cambodia Daily, Michael G. Karnavas takes the judges to task for their complicit passivity.
On August 2, 2016, Henri Locard, testifying as an “expert” in Case 002, lashed out at Khieu Samphan’s lawyer, Anta Guisse, claiming to have been put under “cold torture” the previous day when examined—“Historian Accuses Tribunal Lawyers Of ‘Cold Torture,’” (August 3).
The reference to cold torture, for those who have not followed the trial, is about one of the methods employed by Kaing Guek Eav, better known as Duch, at S-21, or Tuol Sleng, in extracting confessions. Mr. Locard then went on to say that if Ms. Guisse continued to apply cold torture, after three days maybe he would gift his persona to Angkar, implying that the questioning was a form of re-education to conform his thinking to that of the Democratic Kampuchea regime.
After his testimony, it was reported in The Cambodia Daily that he characterized the defense lawyers as “criminals” and “perverse.” Strong words, especially when the word “perverse” has connotations associated with the judicial system of Nazi Germany.
Mr. Locard is entitled to his opinion, however ignorant, misguided or degenerate it may be. He obviously was under the misapprehension that he was in court to pontificate, that his answers to the prosecution would be taken at face value by the defense and that he would not be challenged for his assertions and conclusions. Foolish arrogance. Mr. Locard has been following the proceedings at the Extraordinary Chambers in the Courts of Cambodia (ECCC) since day one. He knew that he would be questioned and challenged, aggressively if necessary, by the defense lawyers. Of course, it can be uncomfortable for a witness when during the course of questioning, answers previously given are shown to be less than credible, bias is exposed and ignorance revealed. Poor Mr. Locard. Victimized by his own sense of self-worth and self-assurance. Rather than show deference to him for his erudite performance in answering the prosecution’s questions with aplomb and flair, the defense lawyers had what he imagined to be the temerity to show him errors in his suppositions.
Mr. Locard’s out-of-court statements are as regrettable as they are inane. However, I would be the first person to defend his right to publicly speak his mind about the trial proceedings or the parties, or the lawyers, however repugnant his remarks may be.
Mr. Locard’s in-court remarks are another matter. No doubt, having felt pummeled by the steady, direct and subtly delivered questions by Ms. Guisse, to which he labored to find convincing answers, Mr. Locard suffered a sleepless night. Poor thing.
Mr. Locard was testifying. If there was anything improper occurring, it was for the prosecution to raise it and for the Trial Chamber to rule, or for the Trial Chamber to simply take the initiative and intervene. Mr. Locard’s job was not to editorialize on the process; it was to answer questions about the subject matter of the charges, to the extent he has alleged knowledge or expertise. Not only were his remarks irrelevant, but they were designed to improperly influence the proceedings. Clearly this crafty fox spent his sleepless hours rehearsing how he might exact revenge for the public exposure of his inadequacies, and thereby put his irredeemably biased thumb on the scale of justice.
Though highly educated, Mr. Locard is just a man: emotional, vain, defensive, manipulative and ignorant of his place and obligations in the hall of justice. The same cannot, however, be said of the judges who sat passively by and allowed Mr. Locard to spout off.
Having heard Mr. Locard’s offensive, unwarranted and irrelevant remarks, especially when he effectively likened Ms. Guisse to Duch in applying cold torture through her questioning, the judges should have reacted with a swift admonishment. Their duty was to remind Mr. Locard, and through swift and sure actions, the public at large, that Ms. Guisse was doing as is expected, nay, demanded, of her in representing her client—in the finest tradition of the legal profession.
The transcript reveals that Ms. Guisse invited the judges to intervene. Silence. Acquiescence and appeasement—a loaded word not chosen lightly. A chilling message to those both in the courtroom and beyond: Do not expect the judiciary to protect the integrity of the proceedings when it comes to unwarranted attacks on defense counsel by disgruntled witnesses.
The supreme irony is that if Ms. Guisse or any defense lawyer were to speak to a witness in such a fashion, she or he would be summarily rebuked. In the past, even when defense lawyers were doing what is expected of them, they were routinely silenced by having the microphone cut off by Presiding Judge Nil Nonn. In this instance, he, as well as the other judges on the bench, sat idly by—spectators, not referees. Hard to imagine that none of them, especially the international judges, were not aware that it is their responsibility to control the proceedings, including the behavior of witnesses, particularly when it comes to attacks on the integrity of the process. Indeed, during testimony, the only duty of the judges, beyond paying attention, is to control the proceedings and limit the testimony to that which is relevant.
Legal Scholar John Henry Wigmore described cross-examination as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” While Mr. Locard may have chafed at having his testimony and credibility publicly subjected to this legal truth serum, the law-trained who were sharing the courtroom knew that Ms. Guisse was comporting herself as a lawyer should, and must. Unfortunately, the judges were too timid, biased or flawed to do their duty, and their failure to rein in Mr. Locard’s fulmination to protect Ms. Guisse’s examination on behalf of Khieu Samphan is scandalous. Their silence speaks volumes: It’s open season on defense lawyers, and in all respects the pitch is tilted in the prosecution’s favor.
Michael G. Karnavas is the international co-lawyer for former Khmer Rouge navy commander Meas Muth.
© 2016, The Cambodia Daily.