Herbert Leon MacDonnell, a renowned forensic scientist, coined the phrase the evidence never lies, also the eponym of his terrific book. MacDonnell pioneered the application of scientific principles to crime scene evidence as a systematic approach to uncovering the truth.
I remember being advised as a newly minted criminal defense lawyer to read up on MacDonnell and on forensic science in general, but if I wanted to have any success in court attacking the prosecution’s case, I needed to learn all I could about the collection, preservation, and testing of evidence. I was advised to start with the crime scene. How well was it preserved? Was it carefully photographed before anything was moved or removed? Who took the photographs and when? How was the evidence collected, or in other words, bagged and tagged? How was it preserved before and after being tested – if tested? Who had access to the evidence locker? Was there a protocol sheet in testing the evidence that would transparently show what exactly was done? And above all, was there a chain of custody? Naturally there is much more to it, such as what tests were performed or not, how well they were performed, and what conclusions (pro, con, inconclusive, neutral, etc.) could to be drawn from the results. But the crime scene is where the search for the evidence begins: the outcome of a trial often turns on how thorough and proper the collection of evidence was.
If the crime scene tells a story, it is the evidence that reveals the narrative. This is why preserving the crime scene is so essential if there is a genuine interest in getting to the truth. The flip side of this is that if you have something to hide, if you want to stifle the uncovering of the truth, best get rid of the evidence – and start with the crime scene, but make sure to be thorough in disposing all evidence.
We all know that before criminal responsibility can be ascribed to someone it is necessary to establish the mental element – the mens rea. But how do you establish intent unless you have some hard evidence, such as a document expressing intent or a confession. Even with credible eye-witness testimony it can be difficult to divine intent. It is not as if the suspect’s mind can be read by looking into it; lie detectors are not just unreliable but also do not serve that purpose.
Intent is invariably discerned from direct and circumstantial evidence. What actions were taken when and why, by whom and under whose direction, who was or should have been in the know, and so on? It is not rocket science, though it is also not an exact process that yields infallible results. This is why the evidence needs to be properly collected and tested, all avenues of investigative leads explored, and any plausible explanations considered before setting on a thesis of what the intent may have been when the crime was committed.
But what about after the commission of a crime?
As the saying goes, it is not the crime but the cover-up that tends to nick the perp, to put it in the vernacular. Why cover up or attempt to cover up if there is no crime or no criminal responsibility to be ascribed? Well, not so fast.
I have been in cases where clients were within their rights to act as they did (as in self-defense), but then took steps to cover up the evidence and confabulate when confronted. Any criminal defense lawyer will attest to having clients who panicked and did or said the wrong things that circumstantially would lead the average person to jump to the conclusion of guilt, unless exposed to all the facts and circumstances. I used to argue before the jury: Saint Peter – the rock of faith – denied Christ three times, so should we really hold my poor, ordinary, and frightened client to higher strength and character?
Occasionally, this argument carried the day – but it always depended on who my client was, his background and experiences, and of course, whether, based on the evidence, there was an alternative plausible explanation to the one that the average person would most likely jump to because of his or her own ordinary daily experiences. Essentially, I would need to convince the jurors to suspend reality as they knew it to be, and to enter my client’s reality, which, like theirs, was just as plausible considering his or her situation. In other words, since plausibility is the indispensable currency when considering the evidence, the actions taken by the actors involved should be judged based on their human experiences, even if at first blush their thinking and behavior seemingly defied logic and common sense under normal circumstances. Whimsicality, however, is not a substitute for plausibility. And here is where the laughing test often comes into play: if the explanations make you laugh because they are utterly silly and fanciful, no amount of suspension of reality will yield the requisite credence and plausibility to convince the trier of fact.
Now to the point of this post.
Last week I wrote about the uncovering of the mass grave of ten civilian Rohingya who were executed by soldiers serving in the Myanmar military, which – if we are to believe the Myanmar military – were acting on their own and without orders or knowledge of their superiors. I hesitated to jump to any conclusion, knowing from my experience as a criminal defense lawyer, that nothing ever truly is as it first appears, and strange things do happen; without all the facts it is better to reserve judgment.
Now we find out that at least five mass graves have been uncovered. More ominously, we now know thanks to Human Rights Watch (HRW) that there is satellite imagery of Rohingya villages being bulldozed where alleged crimes have been reported to have occurred on a widespread and systematic scale. Considering that the area is under the control of the Myanmar military, who but the military would have ordered and carried out this destruction of alleged crime sites. I say alleged because a genuine and thorough investigation has yet to be done. This is known to the Myanmar military. So, is it plausible to believe that the bulldozing of these potential crime scenes is a mere oversight by some low-level flunky officer or some ragtag soldiers gone rogue acting on their own accord? And is it really plausible to point the finger to Buddhist civilians running amok, considering that the Myanmar military controls the area, the physical equipment and human resources involved, and the coordinated efforts required to carry out such industrial-size destruction of specific villages. This is not to say that Buddhist civilians were not involved, but they could hardly be taking the lead on these events. Convergence, not coincidence.
Which begs answers to some basic questions:
- If the Myanmar military has not been involved in committing any crimes such as killing innocent civilian Rohingya while purportedly confronting terrorists, then why is it seemingly engaged in what appears to be an organized, deliberate, and absolute effort to destroy all evidence that could potentially link the killers to the alleged crimes – whoever they may be and under whoever’s command, control, or direction and protection they may be?
- Could it be that the Myanmar military is behind this wanton destruction of Rohingya villages because the evidence located in those areas – if properly collected, preserved, and tested – will not lie about who committed the alleged crimes?
- Could it be that this evidence would not support the claims made by the Myanmar military (and civilian government) that the Rohingya are actually responsible for the destruction and burning of the villages that they left – presumably under their own volition, as the Myanmar military would have everyone believe.
The satellite images of bulldozed villages where the alleged crimes were committed are what I call facts beyond change. This evidence is as hard as it comes. It is also a type of evidence that has been recognized as reliable in establishing facts in criminal cases before the international(ized) criminal tribunals and courts. The best case that comes to my mind is Srebrenica, where satellite imagery betrayed all those involved in burying the victims in mass graves and then unearthing them and re-burying them in secondary graves. Working under the cover of darkness, bulldozers worked furiously as trucks full of semi-decomposed victims were transported from site to site, all under the irrational belief that these cover-up efforts would go undetected.
So, what can we glean from these satellite images of what is going on in the Rakhine State where the Rohingya once lived before they fled? Not having all the facts, I remain cautiously guarded before making any definitive conclusions – a standard much higher than what is generally required at the international(ized) criminal tribunals and courts to confirm charges or an indictment.
It certainly seems that the Myanmar military must be worried about the truth the evidence from these villages and surrounding areas may reveal. For instance, it may show that the military was indeed involved in coordinating and carrying out the alleged crimes. Even if the military is as clean as it would have everyone believe, these actions – which, in my opinion can only be the handiwork of the Myanmar military – shows, nearly incontrovertibly, that it wishes to shield those responsible for alleged crimes. It matters not if the physical perpetrators were Buddhist civilians, rogue soldiers, military personnel acting under orders, or a combination of all. The Myanmar military has a lot of explaining to do.
And here is where I would also include Aung San Suu Kyi and the civilian government. Not that I think she is behind any attempts to cover up any of the atrocities or to destroy incriminating evidence, but it does seem that she is so enamored in maintaining her title and nominal authority that she embraces willful blindness with unabashed abandon.
Hark back to her rather recent speech to the Myanmar public and international community where she noted that it was necessary to find out why certain Muslims in Myanmar were fleeing (she dare not call them for who they are – the Rohingya) and why other Muslims are remaining in their villages. While her statement was patently absurd, with this evidence of satellite imagery, someone of her intelligence and Oxford education can surely see what is going on – as the rest of the world can. But also recall that she invited members of the international community to come and assist her in getting to the truth. Never mind her recent spat with Bill Richardson, who recently resigned from a Myanmar advisory board on the Rohingya crisis after being castigated by her for daring to raise the arrest and detention of the two Reuters reporters who uncovered the mass grave of the ten Rohingya.
How can any independent, objective, and capable investigator get to the bottom of what happened if the evidence is destroyed? One would think that with the satellite images and the hue and cry led by HRW and reported by highly respected and widely disseminated news and social media outlets, Aung San Suu Kyi would find the moral fiber to express her concerns, if not outrage, for this evidence of a damning cover-up.
These latest efforts by the Myanmar military are just one more indicator among a host of other indicators pointing to its direct involvement in the alleged crimes and efforts made to cleanse the Rohingya from their ancestral homes and villages. Hard to think of another plausible explanation. The satellite evidence does not lie.
About Author
