Grotian Moment: The International War Crimes Trial Blog

No Chaos in this Courtroom!

By Michael P. Scharf

This essay was originally posted on the Trial of Charles Taylor Blog:
http://charlestaylortrial.org/expert-commentary-2/professor-michael-p-scharf-no-chaos-in-this-courtroom/

After the conclusion of the Saddam Hussein trial, which was perhaps the messiest trial in legal history, I was invited by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to make a presentation to his staff about the best ways an international criminal court can maintain control of a war crimes trial in the face of a defendant or defense counsel who seeks to disrupt the proceedings. I subsequently was invited to speak about this important issue to the judges and prosecutors of the Rwanda Tribunal and Cambodia Tribunal. The text of my presentation is available on the ICC’s website: http://www.icc-cpi.int/otp/otp_guest_lectures.html and has subsequently been published as: Michael P. Scharf, Chaos in the Courtroom: Controlling Disruptive Defendants and Contumacious Counsel in War Crimes Trials, 39 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 155-170 (2007).

Because of the political context and widespread publicity, former leaders on trial such as Charles Taylor, Saddam Hussein, Slobodan Milosevic, and Vojislav Seselj, are more likely than ordinary defendants to perceive that they do not stand a chance of obtaining an acquittal by playing by the rules. Instead, such individuals will often attempt to derail the proceedings, hoping for a negotiated solution such as a pardon or amnesty. They may try to hijack the trial, hoping to transform themselves through their political diatribes into heroic martyrs in the eyes of their followers. And at the same time, they may seek to discredit the tribunal, hoping to provoke the judges into inappropriately harsh responses which will make the process appear patently unfair. For this reason, major war crimes trials are often perceived as extremely messy or worse, completely out of control. When the Charles Taylor trial began last summer, there were indications that it would follow that pattern, as Taylor made inflammatory speeches, fired his lawyer, and sought to represent himself at the trial’s first session.

As Robert Jackson, the Chief Prosecutor at the Nuremberg trial, observed sixty years ago, war crimes trials, whether before international tribunals or domestic courts, seek to establish a credible historic record of abuses and elevate the rule of law over the force of might, thereby facilitating the restoration of peace and the transition to democracy. While tolerating dissent is a healthy manifestation of a democratic government, a courtroom is not an arena in which dissension, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice. Unlike other forms of acceptable political expression, a disruptive defendant or defense lawyer who interferes with the “grandeur of court procedure” (as Hannah Arendt once described the judicial process) threatens the proper administration of criminal justice in several fundamental ways. First, disruptive conduct renders it more difficult for the defendant and any co-defendants to obtain a fair trial. Second, it hampers the court’s ability to facilitate the testimony of victims and other witnesses. And third, it undermines the public’s confidence in and respect for the legal process.

With this in mind, the Special Court for Sierra Leone wisely held in Prosecutor v. Norman (2005) that the defendant’s right to employ disruptive tactics which seek to discredit the judicial process must give way to the tribunal’s obligation to protect “the integrity of the proceedings” and “to ensure that the administration of justice is not brought into disrepute.” Following the recipe outlined in my presentation/article, the Special Court for Sierra Leone has taken appropriate actions to make sure that the Charles Taylor trial avoids the missteps of the messy war crimes trials of the past. For example, the Tribunal has required that Taylor be represented by counsel, rather than allow him to use self-representation to turn the trial into a circus. And it has provided Taylor and his counsel detailed warnings of the incremental and calibrated Judicial responses they can expect to encounter if they engage in disruptive conduct.

Based on my impressions from watching the live feed of the Taylor trial at http://www.sc-sl.org/ it appears that the Tribunal has succeeded. Defendant Charles Taylor is behaving himself quite admirably in the courtroom, and at the same time is taking a constructive part in his own defense. He is seen constantly writing and often passing sticky notes to his lawyer, Courtenay Griffiths, who uses them during cross-examination. Taylor stands respectfully when the judges enter the courtroom, and has done nothing remotely disruptive – though his very presence is of course intimidating to witnesses who fear for their lives and are under the heaviest security imaginable. The press made a big deal that Taylor blew a kiss to his daughter sitting in the public gallery viewing to the trial on the first day, and he occasionally stares people down in the public gallery, but for the most part he seems to be quietly paying attention to what's going on in the court.

Taylor’s new legal team has been doing an impressive job. British Barrister Courtenay Griffiths is quite tough on the witness, he grandstands from time to time, he tries to induce the witnesses into making exculpatory statements about his client, and he does his best to generate inconsistencies in their stories -- basically he's doing exactly what an outstanding defense attorney should be doing, which in turn bumps up the credibility of the entire process. The Taylor trial is animated - but within the ground rules of the court. This is a far cry from the Milosevic, Seselj and Saddam Trials, where the defendants and their counsel regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross-examination into political diatribes, and staged frequent walk-outs, hunger strikes, and boycotts. It remains to be seen whether things will continue to go so well, but for now it does appear that the SCSL has learned from the lessons of the past and is setting a good precedent for the future.

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Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law in Cleveland, Ohio (USA).

Posted @ 7:46 PM | Experts Debate the Issues: The Charles Taylor Trial | 303 Comments | 0 Trackbacks

Playing The Defence Game - The Trial of Charles Taylor

Mark Ellis

The start of Charles Taylor’s trial provides a compelling reason why newly established international and domestic courts should focus on the issue of assignment of defence counsel. The trial of Charles Taylor began in The Hague (International Criminal Court) on 4 June 2007, under the auspices of the Special Court of Sierra Leone. On this first day, Taylor refused to appear in court, choosing instead to pass along a letter to his counsel, Karim Khan. Asked to explain the absence of his client, Mr. Khan read the letter aloud. In relevant parts, the letter noted concerns with the execution of justice and fairness, expressing particular concerns for the imbalance of resources as between the defence and the prosecution. Mr. Taylor also used the letter to terminate Mr. Khan as his legal representative, noting the following:

I am driven to the conclusion that I will not receive a fair trial before the Special Court at this point. It is therefore with great regret that I must decline to attend any further hearings until adequate time and facilities are provided to my Defence team and until my other long-standing reasonable complaints are dealt with. It follows that I must terminate instructions to my legal representatives in this matter. Despite my complete confidence in their ability and competence, I must ask that they cease to represent me before the Special Court and instruct them accordingly.

Mr. Khan also presented a letter to the Registrar from Taylor that formally terminated him as counsel and declared that Taylor would represent himself from that point forward. Taylor also complained, through Mr. Khan, of a prior inability to consult with the Principal Defender.

Mr. Khan recited the composition of Taylor’s legal team, noting that he was the only counsel, and that he was supported by two legal assistants and a pro bono legal assistant who worked in Liberia part-time; the defence team also benefited from two investigators — one international and one Liberian.

The Court directed Mr. Khan to remain present during the current proceedings and to continue serving as Taylor’s legal representative: “As of today we direct that Mr. Khan continue to represent Mr. Taylor who has absented himself voluntarily.” Despite this directive, Mr. Khan insisted upon leaving the Court, citing the mandates of Article 18(A) and of Article 18(D) of the Code of Professional Conduct for Counsel. Article 18(A) states, “Subject to sub-paragraph (B), Defence Counsel shall not represent a client if Defence Counsel’s representation is: (i) terminated by the client. Mr. Khan noted what he deemed a caveat contained in Article 18(D). This provision states,

If representation by Defence Counsel is to be terminated or withdrawn, unless otherwise ordered by a Chamber such termination or withdrawal shall not take effect until a replacement Defence Counsel is engaged by the client or assigned by the Principal Defender, or the client has notified the Registrar in writing of his intention to conduct his own defence.

Mr. Khan argued before the Court that Taylor complied with the demands of Article 18, and that he was no longer ethically able to function as legal representative. The Court countered that its directive superseded counsel’s code of conduct, citing Rule 45(D). This rule demands that, “Any request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings.” Despite these urgings by the Court, Mr. Khan exited the courtroom. The presiding judge then appointed the acting Duty Counsel, Charles Jalloh, counsel for the duration of opening statements.

There is no evidence that Mr. Khan was held in contempt of court for his decision to ignore the Court’s ruling, even though it is the Court that has final authority to remove appointed defence lawyers. Mr. Taylor indicated that he would represent himself, although he did not appear in court. The Court proceeded with the opening statements of the Prosecutor. Following the Prosecutor’s opening statements, the Duty Counsel enumerated several issues that, from Taylor’s perspective, needed resolution: (1) the procurement of funding sufficient “to assemble a good legal Defence team to meet the size and complexity of Mr. Taylor’s case”; (2) the need to properly fund investigations on behalf of the defence; (3) the status of those comprising the legal team for the defence (e.g., the employment of QCs); (4) the arrangement of a meeting between Taylor and the Principal Defender.

In ruling on the matter of the Principal Defender, the Court issued the following directive:

The Registrar is directed to immediately facilitate the Principal Defender to travel to The Hague for the purpose of speaking with Mr Taylor and sorting out his defence problems. The Registrar is further directed to ensure that logistically the accused has adequate facilities, in accordance with Article 17 of the Statute, without further delay.

Several weeks later, on June 24, 2007, Mr. Taylor again boycotted his trial. He was represented by Duty Counsel (Jalloh) and the Principal Defender, Vincent Nmehielle. Before making any statements, Mr. Nmehielle noted that both he and Mr. Jalloh would be addressing the Court from the position of the Defence Office, “but not addressing the Court for the accused as such.”

Mr. Nmehielle stated that he had met with Taylor in the Netherlands since travelling north from Freetown, and that Taylor had expressed deep concerns with the protection of his rights to fair trial, resolving “to return and to participate in the proceedings before the Court if his concerns, as articulated to the Trial Chamber on the 4th of June, are addressed.” He also relayed that, through the course of their discussions, Taylor was advised that self-representation was neither in his best interests nor those of justice more generally, and that Taylor described in detail the kind of legal team that he felt would be necessary for the mounting of a proper defence. One such demand involved the employment of a leading counsel bearing the rank of QC. Mr. Taylor had rejected all attorneys compiled by the Principal Defender on a list of possible replacement counsel. Mr. Nmehielle also conceded that Taylor had expressed concerns with the adequacy of his legal counsel for some three months prior, and Mr. Nmehielle emphasized the fiscal constraints that had consistently hindered efforts to assemble the calibre and breadth of individuals needed to ameliorate any and all Article 17 concerns.

In her response, Brenda J Hollis of the prosecution argued that, while any accused is certainly entitled to worthy representation, “he is not entitled to determine who that representation will be presented by, nor the exact title of the people who will provide that representation.” On the topic of self-representation, she observed that it should not be an issue because an accused such as this one cannot on one hand boycott the proceedings by refusing to attend and on the other hand say that he is representing himself. If he is boycotting the proceedings, he is not representing himself and so that, at this point at least, is not an issue.

In deciding the matters brought before the Court, the presiding judge accepted the fact that Mr. Taylor had recanted his previous declaration to represent himself and issued both short- and long-term orders. In the short-term, the Principal Defender was instructed to comply with Article 24(D) (of Directive on Assignment of Counsel) and assign new counsel, either from the list previously compiled or else from the Office of the Principal Defender. The Principal Defender was also directed to retain the remaining members from the original defence team in order to assist with any transition. Should no new counsel be assigned by the time the Court reconvened on 3 July, Jalloh was to represent Taylor on that date.

In the long-term, the Registrar was instructed to assemble a competent legal team for Taylor by 31 July. The team is to have the following composition:

One lead counsel of the qualities described or mentioned in Rule 45(C) of the rules, two co-counsel of the quality described in Rule 45(C) of the rules, and one senior investigator at a P4 level. These will supplement the residual members of the team of Charles Taylor as they now exist, the various assistants.

On 3 July, the Court addressed an urgent motion filed jointly by the Prosecutor and the Principal Defender. The motion was filed on 28 June, and a written decision was issued on that same day. The motion requested that the Trial Chamber delay proceedings until 20 August. The petition justified the request on the following bases: (1) the short time with which the Duty Counsel would have to prepare for 3 July, particularly given “the fact that he has hitherto not been privy to the Prosecution material disclosed to the Defence and has no administrative support in the Hague”; (2) two expert witnesses scheduled to testify on behalf of the prosecution had been challenged by former counsel, and Duty Counsel was not privy to the reasons underlying this challenge.

Consequently, the Court ordered the addition of four people to Taylor’s defence team and that a new lead counsel be appointed. The Court ruled:

The Chamber agrees that to compel Duty Counsel to represent the accused during this one week, without affording him adequate administrative support or time to prepare, would indeed amount to a violation of Mr Taylor’s fair-trial rights in as far as counsel could not be expected to effectively cross-examine the witnesses, Prosecution witnesses, nor effectively challenge the Prosecution evidence.

It will be remembered that the Trial Chamber did, as early as March 2007 and on several occasions after that, warn of unlikely due delay emanating from the failure of the Registry to address and resolve Mr Taylor’s representation and investigative requirements in good time before the start of the trial. Thus, while the Chamber generally frowns upon undue delay of these proceedings, we are mindful of our overriding obligation to conduct a fair trial and to guarantee the statutory rights of Mr Taylor, who, in this case, should not be penalised for the laxity of the Registry.

Furthermore, the Trial Chamber is of the view that the alternative proposed by the Prosecutor; namely, that of calling the experts today to give their evidence in-chief and then to postpone their cross-examination until August when a new Defence team is in place, would also not be in the interests of justice or of a fair trial…

The Court first postponed the trial for another month in order to give new defence counsel sufficient time to prepare for trial. It then agreed to postpone the trial until January 2008. In addition, the Court increased to approximately $100,000 a month the funds allocated to Mr. Taylor to defend himself. This is despite the evidence that Taylor controls approximately $100 million in unfrozen annual earnings from the diamond and timber trade. ¹

However, it seems that the delay of Mr. Taylor’s trial is based, in large part, on the obstinate behaviour of Mr. Taylor himself. It is extraordinary that the Court permitted Mr. Taylor, at the “eleventh hour,” to obstruct Court proceedings. The Court erred in not immediately assigning defence counsel to Mr. Taylor, “in the interest of justice.” The Court’s decision was also confusing considering its earlier rulings addressing whether Mr. Taylor had sufficient and adequate defence support prior to the start of the trial. On January 23, 2007, the Defense sought an Order by the Trial Chamber that would direct the Registrar “to provide offices or financial support for offices in both The Hague, The Netherlands, and Monrovia, Liberia.” The Trial Chamber determined that it was not necessary to issue a specific Order to the Registrar because the Registry was already making an effort to establish adequate facilities in The Hague. The Trial Chamber also determined that it was not necessary to establish an office in Monrovia to help the Defense conduct investigations in Liberia.

In assigning additional defence support and funding only after Mr. Taylor boycotted the proceedings, the Court displayed an institutional weakness for handling this crucial aspect of the trial. What is equally perplexing about the Court’s decision is the fact that cases before other international tribunals have already dealt directly with a defendant’s failure to appear. These defendants were certainly not given the latitude afforded to Mr. Taylor.

¹ Liberia Moves to Seize Taylor Assets, http://jurist.law.pitt.edu, July 13, 2007.

Posted @ 4:24 PM | Experts Debate the Issues: The Charles Taylor Trial | 285 Comments | 0 Trackbacks

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