Damning international criminal defense with faint praise

 

Defense lawyers are expected to be flattered to read a purportedly positive piece from an outsider – a non-defense lawyer or someone who has never defended – on what it is they do and why.

Normally such praise-pieces never fail to comment on the obvious, such as the mother of all questions: How can we represent such criminals?, or that the facts are bad but everyone deserves  a fair trial, or how clever we need to be to design creative strategies and make acceptable (i.e., passing the laugh test) arguments, and so on. Routinely, the tone is one of feigned empathy and understanding, as if what they really want to say is: you poor thing, it is a dirty job, your client is guilty, you have no choice but to put up a smoke screen of a defense and try to delay and obstruct the proceedings, but someone has to do it so, so better you than me. How thoughtful of them.

And then occasionally there is the concerted attempt by someone who has legal training but has never been in the trenches, never defended (or prosecuted) a domestic case, let alone a case involving serious international crimes, to drill down and really try to explain in a broader context what it is that defense lawyers do and why, even crediting them with making legacy contributions towards the court’s historical narrative. Wow! Alice Murgier does just that in her article “The Legacy of the Extraordinary Chambers in the Courts of Cambodia: Why Defense Work is Essential in Shaping the Historical Narrative of the Court,” posted on the Cambodia Tribunal Monitor’s website on 16 September 2016.

Murgier damns with faint praise.

At first glance, Murgier’s account of the work of the defense and their legacy contributions seems reasonable, even admirable.  Look more carefully, however, and you see that she harbors predetermined views that betray her and hamper her analysis. Her lack of experience also does not help. In crediting defense lawyers with contributing to the court’s “historical narrative” through some of their strategies (and supposed antics), she widely misses the mark.

It is not for want of trying that Murgier disappoints. Humanitarian / victim-oriented lawyers who have never represented an accused or seriously worked on a defense case before international tribunals, even when sympathetic to or accepting of the work of the defense lawyer, are hardly in a position to fully understand the work of the defense lawyer, other than from a purely theoretical construct.  They also tend to have fixed predetermined notions about the accused: he is guilty, try and prove otherwise.1A vivid example of the predilection for victim-based justice is the matter of Judge Frederik Harhoff, a Danish human rights advocate appointed as a judge at the ICTY, who was disqualified after his letter to 56 personal contacts leaked to the press, demonstrating his mindset on conviction regardless of the evidence and his inability to adhere to the presumption of innocence, with the burden of proof being on the prosecution.  See Prosecutor v. Šešelj, IT-03-67-T, Disqualification of Judge Frederik Harhoff and Report to the Vice-President, 28 August 2013.  See also my post on Judicial Ethics, discussing the Harhoff matter.

The implicit premise feeding the undercurrent of Murgier’s thesis is that the alleged crimes have in fact been committed and that the accused before the ECCC (and other tribunals where accused are prosecuted for mass atrocities) are in fact guilty of the crimes charged.  This being the case, she argues, defense lawyers are left with the onerous task of contextualizing the accused’s conduct for purposes of mitigation, in the course of which, they avail themselves of rupture strategies.2Jacques Vergès was famous for deploying what he called “défense de rupture” (French for “rupture defense”), also referred to as “rupture strategy”, a defense in which the accused denies the judge’s or the court’s legitimacy and authority, and which consists principally of political arguments reframing the context of the accused’s actions. For instance, in defending the suspected anti-French Algerian guerrilla fighter Djamilla Bouhired, Vergès accused the prosecuting state (France) of crimes against humanity and unwanted colonial rule, arguing that the Algerian guerillas were not terrorists but freedom fighters struggling against the unlawful foreign rule. This strategy led to a public outcry demanding her pardon, which the state then granted. See, e.g., Jacques M. Vergès, De La Stratégie Judiciare (Paris: Les Éditions de Minuit, 1968). Another example of a successfully applied rupture defense is Vojislav Šešelj’s trial before the ICTY. Murgier claims that defense lawyers’ strategies, or the “core of their argumentation,” as she puts it, are based on the historical contextualization of the crimes; this being the driving strategy that makes the work of defense lawyers essential since historical context is core to the ECCC’s legacy of shaping its historical narrative. In Murgier’s words:

It is inherent to international criminal defense work to look at circumstantial and historical context. At the ECCC, after the killings of over 1.5 million individuals four decades ago, such context has great historical value. It provides a unique opportunity to understand the workings of how and why such crimes happened; understanding is the ECCC’s most potent legacy.  Context does not justify the crimes. Context explains the crimes so that context never allows them to happen again.

Murgier conflates or simply confuses the need for defense lawyers (or any trial lawyer, for that matter) to ensure that the evidence is understood in the context of all relevant facts, irrespective of any underlying legacy goals the ECCC may have or may have taken upon itself, such as establishing the historical truth or its own historical narrative.3Ralph Zacklin, UN Assistant-Secretary-General rightly notes: “Criminal Courts exist for the purpose of establishing individual accountability – not … to provide an official history. To the extent that a historical record is integral to individual trials, it might be said that this is incidental to the work of the ICTY, but it is not its primary purpose.” Ralph Zacklin, The Failings of Ad Hoc International Tribunals, 2 J. Int’l. Crim. Just. 541, 544 (2004). See also Richard Wilson, Writing History in International Criminal Trials (Cambridge University Press, Cambridge, 2011).

Murgier confuses placing the facts in context in order to determine whether the alleged crimes were committed (and if so, by whom and under what circumstances) with establishing (or validating, as it appears from the above quote) the historical context and/or facts.  She also falters when she speaks of strategies.

Murgier makes reference to defense strategies in a vacuum devoid of the most crucial aspect of the defense case: the theory of the case.  Understandable.  Even many defense lawyers, primarily those from jurisdictions where the pre-trial and trial proceedings are judge-controlled, are not acquainted with the concept of the theory of the case.4In common law systems, both the prosecution and the defense have their own theories of the case (i.e., why the evidence at the end of the trial supports a conviction or an acquittal), and their own strategies and tactics on how they will establish their theories of the case during the proceedings. In civil law systems, there is only “one case” – a case file / dossier, containing all evidence and arguments gathered by impartial public officials (the prosecution or investigating judge) seeking the truth of a matter. For more on comparative civil law and common law approaches, see my series of posts on Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof.

The theory of the case drives the strategies adopted in furtherance of the theory of the case. Similarly, the strategies adopted drive the tactics to be used in furtherance of those strategies.  Suffice it to say, historical context is not a defense strategy.  Placing the events of any alleged crime in context, from the simple domestic misdemeanor to the most complex international crime, is part and parcel of the process of executing the theory of the defense case.  Indeed, a failure to put the facts into context is virtually ineffective legal assistance and malpractice. Many innocent accused have been convicted because the facts were taken out of context, or, worse yet, were considered absent context.

context-mattersViewing the facts in the absence of proper context results in a broken mirror image of the events.  Each piece of a broken mirror reflects a fraction of the total image, and even that fraction will vary depending on the angle of the viewer. We ask jurors in trials to withhold forming an opinion until they have heard all of the evidence.  We expect the judges to do the same.  And it is often not until closing arguments (summation) that the facts can be fully appreciated – in context, and in the proper context if the court allows all relevant evidence to be admitted.

Staying with the topic of context, irrespective of an international court’s adopted criminal procedure or degree of its hybridity, the prosecution is intent on winning the case.  At the ECCC, for instance, while under Rule 53 of the Internal Rules the prosecution has an obligation to disclose exculpatory evidence to the judges, and the prosecution has considered this Rule 53 obligation to apply to the trial stage in terms of disclosing Written Records of Interview to the defense and Trial Chamber,5Case of AO An et al., 004/07-09-2007-ECCC/OCIJ (PTC17), Public (Redacted Version) Decision on XXXX’s Appeal Against the Co-Investigating Judges’ Constructive Denial of His Request For the International Co-Investigating Judge to Reconsider the Disclosure of Case 004 Witness Statements in Case 002/02, 27 February 2015, D229/1/2, para. 3: “The International Co-Investigating Judge considered that his decision to [grant the International Co-Prosecutor’s request] and authorise the disclosure of the 27 witnesses statements was based on the Co-Prosecutors’ obligation to disclose to the Accused in Case 002 exculpatory evidence and other evidence that may assist in the preparation of their defence….” when questioning witnesses they certainly do not draw out exculpatory evidence, leaving that to the defense teams.  If anything, the prosecution goes out of its way to obscure and refute any such evidence, however obvious it may be. When questioning witnesses, the prosecution cherry-picks what questions to ask, what documents to show, even what lines on a page it will focus the witness on to the exclusion of a line or paragraph that contextualizes or puts into perspective the gist of the matter being discussed. The prosecution does so (though at the ECCC, with its French modeled / judge-controlled proceedings, it should not) to ensure that the context is skewed, if not outright distorted, to fit its narrative.  Truth is the first casualty when the prosecution’s mission is to win, as opposed to seeking the truth.

For all the pretenses and protestations by the Trial Chamber and Prosecution (generally when it suits their purposes), the ECCC has been transmuted from the French inquisitorial system to a pseudo-adversarial model, where the Trial Chamber has outsourced to the prosecution its primary function of questioning the witnesses.  As such, the prosecution, which, irrefutably, conducts classic direct examination in furtherance of its case, has no interest in establishing the objective material truth; it is interested in winning.  The prosecution attempts to develop the (historical) narrative of its liking. Historical context is used or abused or ignored by the prosecution, depending on the extent to which the historical context helps or interferes with its ultimate goal – achieving a conviction.6For an example of how a “historian expert” may demonstrate bias, partiality, and subjectivity, see my recent post about Henri Locard, ECCC Prosecutorial Awakening is No Profile in Courage.  It should not be thus, but so it is. Admission is the first step to intellectual honesty.

This being the reality, the defense is compelled, and should be entitled, to flesh out the facts in order to understand the events surrounding the alleged crimes in the proper context.  Unfortunately, we have seen time and time again at the ECCC in Case 002 the defense being prevented from going into certain facts, or being denied the opportunity to have certain witnesses appear and give evidence which it believes is essential to understanding the facts in the proper context.7For example, the NUON Chea Defense repeatedly attempted to have certain Cambodian government officials summoned before the Trial Chamber to testify regarding matters that the NUON Chea Defense considered vital to Mr. NUON Chea’s defense, including any exculpatory knowledge the officials had of the Khmer Rouge and Mr. NUON Chea’s role and responsibilities, and the post-1979 role of Vietnam in Cambodia.  The NUON Chea Defense also repeatedly attempted to question witnesses on these matters.  The Trial Chamber refused to summon the requested witnesses and repeatedly refused to allow the NUON Chea Defense to ask witnesses questions on these topics. See Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Final Decision on Witnesses, Experts and Civil Parties to be Heard in Case 002/01, 7 August 2014, E312, para. 86; Case of NUON Chea et al., 002/19-09-2007-ECCC-TC, Public Redacted NUON Chea’s Appeal Against the Judgment in Case 002/01, 29 December 2014, F16, paras. 54-79, 81-87.

shatteredmirrorThe defense invariably seeks to expand the parameters of the evidence in order to counter the prosecution’s broken mirror image. Placing the events and circumstances in context as part of the defense, is not about establishing the historical context.  It is about understanding the events and the activities of those involved, in context. Resorting to certain techniques or strategies to achieve the contextualization of events for the purpose of determining the accused’s actual conduct and lack of guilt depends to a large extent on the pushback the defense will get from the prosecution, civil parties, and, most of all, the Trial Chamber. It cannot be countenanced that the prosecution be allowed to promote its thesis on a particular aspect of the case, only to then prevent the defense from countering the validity of that thesis by introducing evidence that is contrary or contextually relevant in order to put the facts and circumstances into the proper perspective.

Murgier’s forgone conclusion that the events as she characterizes them (or as they appear in the indictment or closing order) have occurred, and that the accused either committed those crimes or are responsible for them, is unsettling. She adds insult to injury when she invites defense lawyers to take comfort in knowing that there is a silver lining: thanks to our efforts in pursuing a broader examination of the historical facts, we are making a valuable contribution to the ECCC’s “historical narrative.”  How noble of us.

What is this historical narrative?  Since when do courts have a historical narrative?  Whatever happened to the court’s “core” function: determining whether the prosecution has met its burden of proof?

Murgier thinks that “[d]efense work is essential to paint a full picture of events that will affect generations to come.”  Perhaps.  But if at the judge-controlled ECCC the Trial Chamber is supposed to take the lead in the trial proceedings by thoroughly examining the witnesses before the parties take their turn – in order to get to the truth – is it not the Trial Chamber’s obligation to “paint a full picture” so it can get as close to the truth as possible?

Attempts by the defense to shed more light on the events is essential because the prosecution is not interested in the “full picture” and the Trial Chamber has subcontracted to the prosecution its core function of questioning the witnesses, while depriving the defense of the opportunity to conduct cross-examination with leading questions.8Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 9 April 2012, E1/61.1, ERNs 00800399-401; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Trial Transcript, 22 November 2012, E1/145.1, ERNs 00865787-790. Hence the repeated attempts by the defense to expose the deficiencies of the trial proceedings, the Trial Chamber’s failure to summon essential witnesses, and the perceived bias in the questioning of some witnesses by at least one member of the Trial Chamber.  These attempts are not strategies; they have nothing to do with the ECCC’s historical narrative.  Fairness and due process require defense lawyers to draw out all legal and procedural irregularities and deficiencies, even at the expense of diminishing the credibility and stature of the judicial institution. This may not sit well with judges, prosecutors, civil parties and even the public, but this is an essential component of defending any accused.

Murgier may wish to recalibrate her thesis if she genuinely is interested in explaining what defense lawyers do and why – despite not being a defense lawyer herself.  Not all alleged crimes actually occurred.  Not all events occurred as alleged.  Not every witness tells the truth. And the last place you will establish the historical truth – assuming the ECCC’s purpose is to create a historical narrative – is at the court, especially considering how Case 002 is being tried.

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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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