{"id":1466,"date":"2016-08-22T22:41:45","date_gmt":"2016-08-22T20:41:45","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=1466"},"modified":"2018-07-31T22:02:41","modified_gmt":"2018-07-31T20:02:41","slug":"prosecutorial-awakening-no-profile-in-courage","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2016\/08\/22\/prosecutorial-awakening-no-profile-in-courage\/","title":{"rendered":"ECCC Prosecutorial Awakening is No Profile in Courage"},"content":{"rendered":"

<\/div><\/p>\n

One has a moral obligation to take responsibility for one\u2019s actions, and that includes one\u2019s words and silence, yes, one\u2019s silence \u2026<\/strong><\/p>\n

Roberto Bola\u00f1o,\u00a0By Night in Chile<\/p>\n<\/blockquote>\n

A couple of weeks ago I posted a commentary<\/a> that appeared in the Cambodia Daily concerning Henri Locard\u2019s remarks while being examined by International Co-Lawyer for Accused Khieu Samphan, Ms. Anta Guisse, and his out-of-court remarks<\/a> about the defence in general, which also appeared in the Cambodia Daily.<\/p>\n

Locard\u2019s out-of-court remarks prompted the Nuon Chea<\/em> Defence to file a submission<\/a> requesting a. that the press article that reported on Locard\u2019s remarks be placed on the case file, and b. for the Trial Chamber to disregard Locard\u2019s testimony because, having prejudged Nuon Chea\u2019s guilt, Locard\u2019s testimony was \u201cnot impartial or neutral and therefore fails to meet the criteria required to be considered expert evidence.\u201d\u00a0\u00a0 The Co-Prosecutors responded<\/a><\/u>.((Case of NUON Chea<\/em>, 002\/19-09-2007-ECCC\/TC, Co-Prosecutors\u2019 Response to Nuon Chea\u2019s Rule 87(4) Request to Admit into Evidence a Document an Article Concerning Henri Locard (2-TCE-90), 16 August 2016.)) Hence this post.<\/p>\n

The Co-Prosecutors have no objections to the press article being included in the case file. What other position could they take?\u00a0 Hardly a bold manifestation of fairness.<\/p>\n

The Co-Prosecutors did however object to the Nuon Chea<\/em> Defence\u2019s characterization of Locard and his testimony.\u00a0 Despite Locard\u2019s in-court and out-of-court remarks, the Co-Prosecutors find him to be an erudite, objective and credible expert witness.\u00a0 Predictable.\u00a0 Although, what else could they be expected to say?\u00a0 It takes a particularly honest and moral sense of a prosecutor\u2019s higher duty to justice to step out of the adversarial boots and cease vouching for a demonstrably defective witness.<\/p>\n

Before getting to the Co-Prosecutors\u2019 reasoning for standing by their<\/em> man, their comments on Locard\u2019s comments warrant scrutiny. Though sadly late to the game, the Co-Prosecutors\u2019 concession of the wrongfulness of Locard\u2019s testimony, weak brew though it is, merits acknowledgement \u2013 but just barely.<\/p>\n

The Co-Prosecutors remark that it was \u201cinappropriate\u201d for Locard to have accused Ms. Guisse of having subjected him to \u201ccold torture\u201d, and that her questions \u201cwere legitimate and aimed at assisting the Trial Chamber in ascertaining the truth.\u201d\u00a0 They then go on about the rights of the accused, invoking such lofty, though rarely realized standards as \u201cequality of arms\u201d and \u201cthe credibility and fairness to the proceedings\u201d and \u201cthe possibility for the defence to exercise their rights in an independent manner.\u201d<\/p>\n

How refreshing, and how hypocritical.<\/p>\n

When Ms. Guisse was posing \u201clegitimate\u201d questions, and when Locard was spewing his \u201cinappropriate\u201d 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 \u201cDuch\u201d <\/em>at Tuol Sleng \/ S-21 (the torturers at S21, which Duch ran, used, at Duch\u2019s directions, three torture methods: hot, cold, and chewing),((Case of KAING Guek Eav<\/em>, 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\u2019s 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.<\/p>\n

\"SilenceSpeaks\"<\/a>Granted, they are minnows in the Co-Prosecutors\u2019 chain of command.\u00a0 Nonetheless, they should have reacted \u2013 swiftly and unequivocally.\u00a0 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.\u00a0 Supposedly they are objective, fair, and justice-driven as opposed to winning-driven as is the norm with common law prosecutors.\u00a0 Did these assistant prosecutors not appreciate Locard\u2019s absurd and deplorable attacks on Ms. Guisse?\u00a0 Of course they did.\u00a0 But just as the judges brazenly remained silent, so did they.<\/p>\n

Perhaps the professional warning bells of those assistant prosecutors were not triggered by the clanging klaxon of Locard\u2019s accusations.\u00a0 Maybe they were briefly distracted, or taking a sip of water at that moment.\u00a0 However, when circumstances offered them an opportunity for redemption, in the form of Ms. Guisse\u2019s invitation to the unresponsive judges, their deafening silence continued.\u00a0 Once is perhaps understandable in the moment, but a second failure, when specific prompts are presented, is deliberate decision-making.<\/p>\n

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 \u2013 especially after Locard\u2019s outrageous out-of-court railing?\u00a0 Why not promptly, publicly renounce the rascal\u2019s remarks, if not the rascal himself?\u00a0 At the very least issue a bland, generic press release \u2013 as the ECCC Defence Support Section did \u2013 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.\u00a0 The Co-Prosecutors\u2019 eventual musings in their response to Nuon Chea\u2019s request were too little, too late.<\/p>\n

Had it not been for Nuon Chea\u2019s request to declare Locard a biased, result-driven, damaged \u201cexpert\u201d 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\u2019s remarks.\u00a0 After all, though they certainly knew how contemptible Locard\u2019s words were, the disappointing\u00a0silence of the Trial Chamber gave the Co-Prosecutors cover to likewise do and say nothing.<\/p>\n

Maybe, in retrospect, Locard\u2019s language was a wee bit over the top for the Co-Prosecutors. I would like to think that words such as \u201cperverse\u201d and \u201ccriminal\u201d 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.\u00a0 Perhaps this explains their non-reaction.\u00a0 One need only see the Trial Chamber\u2019s 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\u2019s accusations \u2013 his out-of-court ones at least \u2013 would have been favorably received.<\/p>\n

But let\u2019s move on to the rest of the Co-Prosecutors\u2019 response. Setting aside Locard\u2019s \u201coversensitivity to challenges to his expertise,\u201d 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\u2019s anticipated triumph.<\/p>\n

If Locard had provided \u201cobjective information in his testimony,\u201d 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 \u2013 and perhaps to seek solace and succor from the judges and prosecutors (which they all provided in their silence).<\/p>\n

Scrutiny of an expert\u2019s methodology, source material, analysis and conclusions is not merely fair game, it is essential.\u00a0 A solid and sound expert can easily meet the challenge \u2013 especially since the expert is engaging in his or her field of expertise against a non-expert lawyer.<\/p>\n

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. \u00a0His out-of-court remarks speak volumes of his bias and result-determinative testimony.<\/p>\n

The Co-Prosecutors argue that the Trial Chamber has recognized Locard to possess \u201cspecialized knowledge and experience that may assist the Chamber for the purposes of its assessment of the evidence.\u201d\u00a0 Laughable.\u00a0 Such threshold admissibility is the lowest possible bar, signaling only that on a prima facie<\/em> level he possesses certain of the most basic pretensions to expertise.\u00a0 This recognition of Locard \u2013 which is, as for any expert, little more than agreeing to hear him \u2013 as having \u201cspecialized knowledge\u201d is hardly an inexorable path to the claim that he \u201cprovided objective information.\u201d One can possess \u201cspecialized knowledge\u201d and be irredeemably subjective in applying it so a desired or predetermined result is achieved.\u00a0 If \u201cobjective information\u201d flows from a witness once being deemed to possess \u201cspecialized knowledge,\u201d then after anointing Locard as an expert, the Trial Chamber could \u2013 assuming it had done its homework \u2013 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\u2019s published material as \u201cobjective information,\u201d not subject to challenge. \u00a0After all, we are in civil law land.\"MouseEarsExpert\"<\/a><\/p>\n

Experts are subjected to scrutiny just as all other witnesses are.\u00a0 In Daubert v. Merrell Dow Pharms.<\/em>,((509 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: \u201cVigorous 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.\u201d\u00a0 Indeed, a common law jury would be instructed that an expert\u2019s credibility is to be tested like that of any other witness and the expert\u2019s 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.((Third Circuit Model Criminal Jury Instruction 4.08,\u00a0 available at <\/em>http:\/\/www.ca3.uscourts.gov\/model-criminal-jury-table-contents-and-instructions<\/a>.))\u00a0 Nothing about these concepts is antithetical to the analysis the Trial Chamber should be undertaking.<\/p>\n

The expert moniker does not magically imbue either objectivity or erudition.\u00a0 As an illustration, let\u2019s look at the ICTY Trial Chamber\u2019s findings on Ewa Tabeau, a demographic expert for the prosecution, in the Prli\u0107<\/em> case.<\/p>\n

Ewa Tabeau had testified as an in-house employee\/demographics analyst on behalf of the prosecution in several cases at the ICTY.((See Prosecutor v. Gali\u0107, <\/em>IT-98-29-T, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, 3 July 2002; Prosecutor v. Blagojevi\u0107 & Joki\u0107, <\/em>IT-02-60-T, Decision on Prosecution\u2019s Motion to Admit Evidence in Rebuttal and Incorporated Motion to Admit Evidence under Rule 92 bis<\/em> in its Case on Rebuttal and to Re-Open its Case for a Limited Purpose, 13 September 2004; Prosecutor v. Luki\u0107 & Luki\u0107, <\/em>Decision on Second Prosecution Motion for the Admission of Evidence pursuant to rule 92 bis<\/em> (Two Expert Witnesses), 23 July 2008; Prosecutor v. Seselj,<\/em> IT-03-67-T, Decision on the Expert Status of Ewa Tabeau, 15 October 2008; Prosecutor v. Perisi\u0107, <\/em>IT-04-81-T, Decision on Expert Reports of Ewa Tabeau, 23 April 2009.)) In Prli\u0107 et al<\/em>., 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).((Prosecutor v. Prli\u0107, <\/em>IT-04-74-T, Decision Regarding the Submission of Three Expert Reports of Ewa Tabeau Under Rule 94 bis<\/em> (A) and (B), <\/em>17 August 2007. Prosecutor v. Prli\u0107, <\/em>IT-04-74-T, Order Admitting Evidence Regarding Witness Ewa Tabeau, <\/em>9 January 2008.))<\/p>\n

The Prli\u0107<\/em> Defence \u2013 on which I was lead counsel – contested the reliability, the relevance and the probative value of Ewa Tabeau\u2019s expert reports through cross-examination and its own expert witness, Svetlana Radovanovi\u0107. Professor Radovanovi\u0107\u2019s report and testimony revealed Ewa Tabeau\u2019s impermissible methodological errors that resulted in unreliable statistical data and calculations.<\/p>\n

Ewa Tabeau\u2019s testimony and her three expert reports were disregarded by the Prli\u0107<\/em> Trial Chamber as not providing sufficiently precise information (first two reports) and having no probative value (third report).((Prosecutor v. Prli\u0107 et al.,<\/em> 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.((Prosecutor v. Simi\u0107<\/em>, IT-95-9-T, Judgement, 17 October 2003, paras. 30-35.))<\/p>\n

So much for the Co-Prosecutors\u2019 claim: specialized knowledge = objectivity<\/em>.<\/p>\n

\"Historian\"<\/a>In a warning international and internationalized courts would do well to heed, a judge of the United States Eleventh Circuit Court of Appeals wrote: \u201cSpecial dangers attend the introduction of testimony about history in judicial proceedings. \u2018[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.\u2019\u201d((Sovereign 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<\/em>, 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<\/em>, 44 Wake Forest L. Rev. 265, 294-95 (2009). ))<\/p>\n

Locard may be a historian, but his expressed views demonstrate \u2013 or at least give the undeniable appearance of \u2013 bias, partiality, and subjectivity.\u00a0 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\u2019s testimony.\u00a0 It should seriously consider Locard\u2019s testimony in conjunction with and in the context of his in-court and out-of-court outrageous and prejudicial remarks.\u00a0 It should question Locard\u2019s motives for his anti-defence antics as scrupulously as it should examine his methodology, his sources, his analysis, and his conclusions.<\/p>\n

Ultimately, in fairness to Nuon Chea and Khieu Samphan, the Trial Chamber should refrain from giving any credence or weight to Locard\u2019s 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.<\/p>\n

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.\u00a0 The Trial Chamber should.<\/p>\n

\"comments2\"<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

One has a moral obligation to take responsibility for one\u2019s actions, and that includes one\u2019s words and silence, yes, one\u2019s silence \u2026 Roberto Bola\u00f1o,\u00a0By Night in Chile A couple of weeks ago I posted a commentary that appeared in the Cambodia Daily concerning Henri Locard\u2019s remarks while being examined by International Co-Lawyer for Accused Khieu … Continue reading “ECCC Prosecutorial Awakening is No Profile in Courage”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[22,19,21],"tags":[6,5,7,3],"class_list":["post-1466","post","type-post","status-publish","format-standard","hentry","category-eccc","category-icty","category-international-criminal-law","tag-eccc","tag-icty","tag-international-criminal-law","tag-karnavas"],"yoast_head":"\nECCC Prosecutorial Awakening is No Profile in Courage - michaelgkarnavas.net\/Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/michaelgkarnavas.net\/blog\/2016\/08\/22\/prosecutorial-awakening-no-profile-in-courage\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"ECCC Prosecutorial Awakening is No Profile in Courage - michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"og:description\" content=\"One has a moral obligation to take responsibility for one\u2019s actions, and that includes one\u2019s words and silence, yes, one\u2019s silence \u2026 Roberto Bola\u00f1o,\u00a0By Night in Chile A couple of weeks ago I posted a commentary that appeared in the Cambodia Daily concerning Henri Locard\u2019s remarks while being examined by International Co-Lawyer for Accused Khieu … Continue reading "ECCC Prosecutorial Awakening is No Profile in Courage"\" \/>\n<meta property=\"og:url\" content=\"https:\/\/michaelgkarnavas.net\/blog\/2016\/08\/22\/prosecutorial-awakening-no-profile-in-courage\/\" \/>\n<meta property=\"og:site_name\" content=\"michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"article:published_time\" content=\"2016-08-22T20:41:45+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-07-31T20:02:41+00:00\" \/>\n<meta property=\"og:image\" content=\"http:\/\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/08\/SilenceSpeaks.jpg\" \/>\n<meta name=\"author\" content=\"Michael G. 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