ECCC Prosecutorial Awakening is No Profile in Courage

One has a moral obligation to take responsibility for one’s actions, and that includes one’s words and silence, yes, one’s silence …

Roberto Bolaño, By Night in Chile

A couple of weeks ago I posted a commentary that appeared in the Cambodia Daily concerning Henri Locard’s remarks while being examined by International Co-Lawyer for Accused Khieu Samphan, Ms. Anta Guisse, and his out-of-court remarks about the defence in general, which also appeared in the Cambodia Daily.

Locard’s out-of-court remarks prompted the Nuon Chea Defence to file a submission requesting a. that the press article that reported on Locard’s remarks be placed on the case file, and b. for the Trial Chamber to disregard Locard’s testimony because, having prejudged Nuon Chea’s guilt, Locard’s testimony was “not impartial or neutral and therefore fails to meet the criteria required to be considered expert evidence.”   The Co-Prosecutors responded.1Case of NUON Chea, 002/19-09-2007-ECCC/TC, Co-Prosecutors’ Response to Nuon Chea’s Rule 87(4) Request to Admit into Evidence a Document an Article Concerning Henri Locard (2-TCE-90), 16 August 2016. Hence this post.

The Co-Prosecutors have no objections to the press article being included in the case file. What other position could they take?  Hardly a bold manifestation of fairness.

The Co-Prosecutors did however object to the Nuon Chea Defence’s characterization of Locard and his testimony.  Despite Locard’s in-court and out-of-court remarks, the Co-Prosecutors find him to be an erudite, objective and credible expert witness.  Predictable.  Although, what else could they be expected to say?  It takes a particularly honest and moral sense of a prosecutor’s higher duty to justice to step out of the adversarial boots and cease vouching for a demonstrably defective witness.

Before getting to the Co-Prosecutors’ reasoning for standing by their man, their comments on Locard’s comments warrant scrutiny. Though sadly late to the game, the Co-Prosecutors’ concession of the wrongfulness of Locard’s testimony, weak brew though it is, merits acknowledgement – but just barely.

The Co-Prosecutors remark that it was “inappropriate” for Locard to have accused Ms. Guisse of having subjected him to “cold torture”, and that her questions “were legitimate and aimed at assisting the Trial Chamber in ascertaining the truth.”  They then go on about the rights of the accused, invoking such lofty, though rarely realized standards as “equality of arms” and “the credibility and fairness to the proceedings” and “the possibility for the defence to exercise their rights in an independent manner.”

How refreshing, and how hypocritical.

When Ms. Guisse was posing “legitimate” questions, and when Locard was spewing his “inappropriate” accusations against Ms. Guisse, that her manner of questioning him had tortured him by applying one of the methods employed by KAING Guek Eav alias “Duch” at Tuol Sleng / S-21 (the torturers at S21, which Duch ran, used, at Duch’s directions, three torture methods: hot, cold, and chewing),2Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Judgement 26 July 2010, E188, para. 151. For more information on Duch, see David Chandler, Voices from S-21: Terror and History in Pol Pot’s Secret Prison (Silkworm Books 1999); Nic Dunlop, The Lost Executioner: A Story of the Khmer Rouge (Walker Books 2006); Thierry Cruvellier, The Master of Confessions: The Making of a Khmer Rouge Torturer (Ecco 2014). the assistant prosecutors in court (national and international) sat mute.

SilenceSpeaksGranted, they are minnows in the Co-Prosecutors’ chain of command.  Nonetheless, they should have reacted – swiftly and unequivocally.  This is especially so when considering that the ECCC, despite it being a hybrid court, is supposed to be civil law based. The prosecutors are part of the magistracy.  Supposedly they are objective, fair, and justice-driven as opposed to winning-driven as is the norm with common law prosecutors.  Did these assistant prosecutors not appreciate Locard’s absurd and deplorable attacks on Ms. Guisse?  Of course they did.  But just as the judges brazenly remained silent, so did they.

Perhaps the professional warning bells of those assistant prosecutors were not triggered by the clanging klaxon of Locard’s accusations.  Maybe they were briefly distracted, or taking a sip of water at that moment.  However, when circumstances offered them an opportunity for redemption, in the form of Ms. Guisse’s invitation to the unresponsive judges, their deafening silence continued.  Once is perhaps understandable in the moment, but a second failure, when specific prompts are presented, is deliberate decision-making.

Even if it was too much to ask for the assistant prosecutors to react, why did the Co-Prosecutors not speak up at their first opportunity – especially after Locard’s outrageous out-of-court railing?  Why not promptly, publicly renounce the rascal’s remarks, if not the rascal himself?  At the very least issue a bland, generic press release – as the ECCC Defence Support Section did – repudiating Locard and reminding the public of the rights of the accused, such as the presumption of innocence, the right to confront witnesses, the right to put on a defence, and so on.  The Co-Prosecutors’ eventual musings in their response to Nuon Chea’s request were too little, too late.

Had it not been for Nuon Chea’s request to declare Locard a biased, result-driven, damaged “expert” whose testimony should be utterly ignored and discarded by the Trial Chamber, the Co-Prosecutors, I dare say, would have smugly remained silent and satisfied with Locard’s remarks.  After all, though they certainly knew how contemptible Locard’s words were, the disappointing silence of the Trial Chamber gave the Co-Prosecutors cover to likewise do and say nothing.

Maybe, in retrospect, Locard’s language was a wee bit over the top for the Co-Prosecutors. I would like to think that words such as “perverse” and “criminal” in characterizing the defence and their theories or strategies in defending their clients even penetrated the hardest prosecutorial shell. But the rest of the message about the defence employing dilatory tactics and staking out positions that are antithetical to the guilty verdict handed down in the court of public opinion, seemed to have resonated with the Co-Prosecutors.  Perhaps this explains their non-reaction.  One need only see the Trial Chamber’s treatment of the defence with the most provoking air of condescension during court proceedings, and in no small measure by the prosecution as well, to appreciate how Locard’s accusations – his out-of-court ones at least – would have been favorably received.

But let’s move on to the rest of the Co-Prosecutors’ response. Setting aside Locard’s “oversensitivity to challenges to his expertise,” the Co-Prosecutors argue that his academic work and testimony was unbiased and impartial, citing his methodology, his doctoral thesis and his publications. But that is exactly what was being challenged by Ms. Guisse. That was the bane of Locard’s anticipated triumph.

If Locard had provided “objective information in his testimony,” as the Co-Prosecutors claim, then why was Locard so worked-up after the first day of being questioned by Ms. Guisse that he felt the need to accuse her of applying cold torture – and perhaps to seek solace and succor from the judges and prosecutors (which they all provided in their silence).

Scrutiny of an expert’s methodology, source material, analysis and conclusions is not merely fair game, it is essential.  A solid and sound expert can easily meet the challenge – especially since the expert is engaging in his or her field of expertise against a non-expert lawyer.

Embarrassed by his performance and impotent to repel the challenges to his expertise and testimony, Locard felt the need to strike against the defence lawyers inside and outside the courtroom.  His out-of-court remarks speak volumes of his bias and result-determinative testimony.

The Co-Prosecutors argue that the Trial Chamber has recognized Locard to possess “specialized knowledge and experience that may assist the Chamber for the purposes of its assessment of the evidence.”  Laughable.  Such threshold admissibility is the lowest possible bar, signaling only that on a prima facie level he possesses certain of the most basic pretensions to expertise.  This recognition of Locard – which is, as for any expert, little more than agreeing to hear him – as having “specialized knowledge” is hardly an inexorable path to the claim that he “provided objective information.” One can possess “specialized knowledge” and be irredeemably subjective in applying it so a desired or predetermined result is achieved.  If “objective information” flows from a witness once being deemed to possess “specialized knowledge,” then after anointing Locard as an expert, the Trial Chamber could – assuming it had done its homework – pose a series of questions to solicit a narrative without subjecting Locard to any meaningful questioning by the parties, or better yet, it could just admit Locard’s published material as “objective information,” not subject to challenge.  After all, we are in civil law land.MouseEarsExpert

Experts are subjected to scrutiny just as all other witnesses are.  In Daubert v. Merrell Dow Pharms.,3509 U.S. 579, at 596 (1993). a seminal sea-change case of the United States Supreme Court lowering the bar for threshold admissibility of expert testimony, the Supreme Court observed: “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”  Indeed, a common law jury would be instructed that an expert’s credibility is to be tested like that of any other witness and the expert’s opinions may be disregarded if the reasons given in support are not sound, if not supported by the facts shown by the evidence, or if outweighed by other evidence.4Third Circuit Model Criminal Jury Instruction 4.08,  available at http://www.ca3.uscourts.gov/model-criminal-jury-table-contents-and-instructions.  Nothing about these concepts is antithetical to the analysis the Trial Chamber should be undertaking.

The expert moniker does not magically imbue either objectivity or erudition.  As an illustration, let’s look at the ICTY Trial Chamber’s findings on Ewa Tabeau, a demographic expert for the prosecution, in the Prlić case.

Ewa Tabeau had testified as an in-house employee/demographics analyst on behalf of the prosecution in several cases at the ICTY.5See Prosecutor v. Galić, IT-98-29-T, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, 3 July 2002; Prosecutor v. Blagojević & Jokić, IT-02-60-T, Decision on Prosecution’s Motion to Admit Evidence in Rebuttal and Incorporated Motion to Admit Evidence under Rule 92 bis in its Case on Rebuttal and to Re-Open its Case for a Limited Purpose, 13 September 2004; Prosecutor v. Lukić & Lukić, Decision on Second Prosecution Motion for the Admission of Evidence pursuant to rule 92 bis (Two Expert Witnesses), 23 July 2008; Prosecutor v. Seselj, IT-03-67-T, Decision on the Expert Status of Ewa Tabeau, 15 October 2008; Prosecutor v. Perisić, IT-04-81-T, Decision on Expert Reports of Ewa Tabeau, 23 April 2009. In Prlić et al., she was called to provide expert testimony and reports with statistical analysis regarding the persons killed and wounded during the siege of Mostar (first two reports), as well as the critical analysis on the ethnic composition, internally displaced persons and refugees in eight municipalities of Herceg-Bosna from 1991 to 1997-98 (a third report).6Prosecutor v. Prlić, IT-04-74-T, Decision Regarding the Submission of Three Expert Reports of Ewa Tabeau Under Rule 94 bis (A) and (B), 17 August 2007. Prosecutor v. Prlić, IT-04-74-T, Order Admitting Evidence Regarding Witness Ewa Tabeau, 9 January 2008.

The Prlić Defence – on which I was lead counsel – contested the reliability, the relevance and the probative value of Ewa Tabeau’s expert reports through cross-examination and its own expert witness, Svetlana Radovanović. Professor Radovanović’s report and testimony revealed Ewa Tabeau’s impermissible methodological errors that resulted in unreliable statistical data and calculations.

Ewa Tabeau’s testimony and her three expert reports were disregarded by the Prlić Trial Chamber as not providing sufficiently precise information (first two reports) and having no probative value (third report).7Prosecutor v. Prlić et al., IT-04-74-T, Trial Judgement, 29 May 2013, paras. 310, 325, 355. This was not the first time her evidence was roundly and conspicuously ignored by a Trial Chamber.8Prosecutor v. Simić, IT-95-9-T, Judgement, 17 October 2003, paras. 30-35.

So much for the Co-Prosecutors’ claim: specialized knowledge = objectivity.

HistorianIn a warning international and internationalized courts would do well to heed, a judge of the United States Eleventh Circuit Court of Appeals wrote: “Special dangers attend the introduction of testimony about history in judicial proceedings. ‘[W]hen a historian, whose methodology is unsound, is placed before a [factfinder], the historian has the ability to paint a picture of the past as he or she so desires. And this, in turn, has the potential to change and shape the way the public views, interprets, and understands the past.’”9Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes and of Malta v. Fla. Priory of the Knights Hospitallers of the Sovereign Order of St. John of Jerusalem, Knights of Malta, The Ecumenical Order, 694 F.3d 1200, 1219 (11th Cir. 2012), quoting Holly Morgan, Comment, Painting the Past and Paying for It: The Demise of Daubert in the Context of Historian Expert Witnesses, 44 Wake Forest L. Rev. 265, 294-95 (2009).

Locard may be a historian, but his expressed views demonstrate – or at least give the undeniable appearance of – bias, partiality, and subjectivity.  The Trial Chamber will need to wait until it hears all of the evidence before it can begin to assess and give weight to Locard’s testimony.  It should seriously consider Locard’s testimony in conjunction with and in the context of his in-court and out-of-court outrageous and prejudicial remarks.  It should question Locard’s motives for his anti-defence antics as scrupulously as it should examine his methodology, his sources, his analysis, and his conclusions.

Ultimately, in fairness to Nuon Chea and Khieu Samphan, the Trial Chamber should refrain from giving any credence or weight to Locard’s testimony and published works. Nuon Chea and Khieu Samphan deserve the benefit of the doubt, the presumption of innocence and fairness in the proceedings. These basic fair trial rights, which Locard so publicly denigrated, must be taken seriously.

The Co-Prosecutors, implicitly through their initial inaction and tepidly self-serving response, have shown that they are unwilling to scrutinize, let alone jettison, Locard.  The Trial Chamber should.

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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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