Linking: Connecting or joining something to something else.
Linkage: The action of linking or the state of being linked.
Oxford Dictionary
In my previous post I drew a comparison between what little we know about the US Special Counsel Robert Mueller’s Report and what might be a useful lesson for ICC Prosecutor Fatou Bensouda, namely, that it is best not to charge unless there is reliable and relevant evidence for a conviction — not just when there is sufficient evidence to charge.
My advice may appear cheeky and self-serving as it is coming from a criminal defense lawyer – why trust someone with an obvious stake in the game? And if overreaching, overcharging, and overtrying a case leads to an acquittal, why would a defense lawyer get in the way by offering any advice that might yield more positive results for the prosecution?
So why bother? Well, because as sweet as a hard-earned acquittal may be, being investigated, charged, arrested and detained, and going through the pre-trial kabuki dance before being subjected to an exhausting, psychologically-wrenching, roller-coaster ride where anything can happen and an accused can be convicted — no matter how innocent they may feel or be — it is better to try to win the case before charges are filed and the run-away process takes off.
Let’s face it, if the evidence is there, then try as the defense might, not guilty verdicts are rare — and even rarer (a damn near impossibility) is the overturning of a conviction based on factual errors.
What do I mean “if the evidence is there?” I mean if the prosecution has the evidence to prove the charges beyond a reasonable doubt; then it is virtually certain, save for any irregularities or unforeseen circumstances, that the outcome of the trial will be a guilty verdict.
At what stage should the prosecution have this evidence? Prior to charging.
The prosecution’s case does not necessarily get better once the case proceeds to trial. In fact, I would say it generally gets weaker as the defense chips away in challenging the evidence. This is even before the defense puts on a case, though truth be told, the prosecution’s case tends to gain ground when the defense puts on a case (especially when an accused takes the stand). These are generalities, but experienced lawyers from adversarial jurisdictions would likely agree.
In any event, the point I want to stress is that only an inexperienced, foolhardy, or hubristic prosecutor charges an accused without having the goods, as it were, to get the conviction. Since there is considerable lag between confirming the charges and going to trial, and since the investigation in any ongoing case continues, some on the prosecution side tend to be foolishly optimistic that more incriminating evidence will be uncovered, or that because of the charges, they can count on a conviction prone trier of fact to push the ball over the line to score the conviction.
I raise all of this because, as I’ve noted in the previous post and on other occasions (here, here, here, here, and here), the ICC Office of the Prosecutor (OTP) is racking up an impressive losing record. By any measure the OTP is de-legitimizing itself. As much as I would like to give credit to my colleagues on the defense for their creative thinking and impressive skills, truth be told, in no small measure, the prosecution also deserves credit for these results. As do the Pre-Trial Chambers (PTC) for confirming unsustainable charges.
The ICC was going to be different, better, fairer. In adopting a confirmation process that some may say is a mini-trial before a PTC, distinct from the Trial Chamber, the expectation was that a much better screening/charging/confirming process was being put in place than what existed at other international(ized) criminal tribunals or courts. If so, does not the PTC also share some responsibility for the acquittals? Maybe that seems like a stretch or a tad unfair to the PTC since it has no other choice but to adhere to the low standard of proof (“substantial grounds to believe” under Article 61(7) of the Rome Statute) and is not involved in the strategic and tactical actions of the OTP once the case moves beyond the PTC. A fair observation — though, in my opinion, a somewhat lame excuse for confirming charges where the OTP does not have the evidence showing that it can prove the charges beyond a reasonable doubt despite expected challenges or evidence gathered by the defense.
Here it may be argued that I am suggesting that the PTC should be clairvoyant — anticipating what might be gathered by the defense, and having factored this into the equation, decide whether to confirm the charges. Not at all. Rather the PTC, simply needs to be prudent, as should the OTP. How so? By only allowing charges that can be proved. And the same goes for modes of liability. In other words, abandon the kitchen sink approach to charging — as is usually done at the other international(ized) criminal tribunals or courts. This approach may work fine most of the time, especially where the confirmation process is forgiving and malleable, and where the attitude is that this will all be figured out at the end when assessing the evidence. Never mind that such lack of specificity impedes an accused’s right to having (actual) notice of the charges and modes of liabilities (as opposed to modes of possibilities to be determined at the end of the trial).
So, what’s the solution? Simple. The OTP should, as a matter of policy, be he held to strict compliance with developing proofing charts for every case. The evidence should be required to be linked to the elements of each charge and every mode of liability alleged. The evidence should be scrutinized carefully for authenticity, reliability, and relevance. It must be of such quality that it should be able to withstand foundational challenges. Where possible, it should be linked to and/or supported by other independent evidentiary indicia. In other words, through the proofing chart, the OTP should be able to explain how and with what evidence it will prove its entire case as charged. This proofing chart, save for any work-product, should be disclosed to the defense and provided to the PTC.
And assuming the charges are confirmed, given that the pre-trial stage is organic, the OTP should be compelled to provide an updated proofing chart to the Trial Chamber and to the defense. I would even go so far as to say that, prior to the commencement of the trial, the Trial Chamber should hold the prosecution’s feet to the fire by conducting an evidentiary hearing, where the OTP would have to present and defend the proofing chart. The OTP should show the Trial Chamber that, at least with the evidence in its possession based on due diligence, it has enough evidence not only to survive a request for a judgment of acquittal at the end of its case, but sufficient evidence for a conviction — despite the likelihood of a defense case.
Proofing charts may not be a silver bullet, guaranteeing convictions for the OTP. However, if nothing else, they may be useful in screening cases from going forward in which the charges are doomed to be dismissed either at the end of the prosecution’s case, at the end of the case, and/or on appeal.
Let there be linkage.
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