I greatly appreciate that my esteemed colleagues Catherine Mabille and Luc Walleyn took the time to comment on my recent post: Witness tampering convictions at the ICC: repercussions under Article 70. Thanks Catherine and Luc for your comments. Below is my response.
While I can understand the frustration and even anger over the double-standard when it comes to condemning defense lawyers for conduct that prosecutors get away with, I have yet to see where such arguments have traction as an excuse or an explanation for conduct that crosses ethical boundaries. In some instances it may be useful to point out that the prosecution engages in certain conduct to demonstrate that the conduct is within acceptable bounds. But there is no merit to the argument that because the prosecution got away with such conduct in Lubanga, this kind of conduct should also be permitted in another case.
However, if I understand your comments, that is not your thrust. Rather, you are highlighting the fact that before the ICC there is disparate treatment concerning Article 70 matters when it comes to prosecutorial misconduct. So, what is new?
Over the course of my career in my home jurisdiction in state and federal courts, as well as before international tribunals, I have come to the conclusion that the prosecution is generally far more casual and cavalier when it comes to professional ethics. When Prosecutors and their staff misbehave, it is because they can. They are part of the s
ystem. They are on the “right” side of the law. This is what a friend has described as the Superman vs. Batman dichotomy. In pursuing their respective visions of justice: Superman hews strictly to the rules as an essential element of his mission; while Batman believes the ultimate righteousness of his position gives him leave to disregard those rules as he sees fit.
In the context of criminal prosecutions, transgressions are ignored or forgiven because the ends, according to some prosecutors and judges who harbor predilections and predispositions that charged individuals are guilty by virtue of charge and/or prior criminal record, etc., justify the means. Because prosecutorial irregularities often go unpunished (and if there is a reprimand it is usually directed at the prosecutor’s office and not the rascal prosecutor or staff member perpetrator), this tends to embolden Batman-inclined prosecutors.
The Bemba case exposed prosecutorial conduct that verges on conscience shocking. But for the valiant efforts of the defense, these irregularities would have gone unnoticed. And yes, we should be angry at this prosecutorial hubris. We must expose such sordid prosecutorial conduct to show that criminal or unethical intent cannot and should not automatically be ascribed to less serious conduct by our colleagues. Context matters.
My bigger point is that we as defense lawyers are much more exposed and vulnerable than prosecutors. Counterintuitively, we are held to a higher standard than prosecutors, whose sole imperative is to do justice, and we are much more likely to come under attack by the prosecution for conduct that pales in comparison to what the prosecutors get away with. But there is another point that I am making: we as defense lawyers need to take and retain the moral high ground. One of the most potent weapons defense lawyers have is exposing the sloppy, questionable, and outright unethical behavior of prosecutors and their staff. Investigators in particular are notorious for their creative ways of gathering evidence – and by this I mean polluting the source of witnesses’ memories while taking statements.
Focusing on what the prosecutors can get away with in other cases is worth noting, but hardly constructive. This is why I continue to advocate for meaningful training by experienced defense lawyers who have learned in their national practice the craft of gathering evidence, investigating, and preparing witnesses to testify. At this level of the game, everyone is expected to know how and what to do. It is not something that can just be picked up through osmosis simply by virtue of being assigned to or working on a case. Though not born on Krypton, we each can and must learn how to be the Superman or woman of our chosen profession.
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I can totally appreciate the comment and sympathise with the issue, having seen it played in practice with less dramatic outcome. If I may be allowed, I cannot help but add another twist? Having been exposed to both angles, I often find myself wondering how — let’s call it the “Batman syndrome” applied appropriately to behaviour by each party in the procedure — affects the legal profession in the long run, enabling a climate where the end justifies the means. I have evidenced this egg or chicken question often: in formerly authoritarian jurisdictions, was it the perhaps the general leniency enjoyed by the state institutions that sowed the seeds of unethical behaviour (and finger pointing) by both sides of the profession or did somehow the legal profession miss the train to self-discipline and is stranded nowhere? I totally get it that this is a David v Goliath battle but that inevitably brings the question: whose act-cleaning should happen first, or do they need to happen simultaneously?