ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Friday, June 14, 2013

Badgering of a Witness: Pitch-Perfect

With technology now permitting video dictionaries, the world has been on the lookout for a video to illustrate the phrase ‘badgering a witness.’ This past week help came from Keith Raynor whose most obnoxious antics in the courtroom created a pitch-perfect video for the purpose. But let’s go back to how it all began.

Accused Khieu Samphan’s wife, So Socheat, was called to court as a witness. Judge Lavergne launched an extensive direct examination that frustrated him and left him with nothing more than So Socheat’s repeated statements that she was a housewife and worked in a communal kitchen, and, therefore, knew nothing about the politics and governance during Democratic Kampuchea. Judge Lavergne’s frustration did not get the best of him and permitted him to continue being courteous and to begin narrowing down his examination to what was shaping as the extent of So Socheat’s knowledge of the comings and goings in the upper echelon of Democratic Kampuchea. The end of Judge Lavergne’s examination signaled the beginning of the prosecution’s cross-examination. In these proceedings the prosecution has gotten away with much too much nonsense and stands emboldened by it. The incident discussed below is but one example of that.

The prosecution’s examiner was its Senior Assistant Co-Prosecutor Keith Raynor. The gentleman has been in Cambodia for a year now. This is the age of his knowledge of anything Cambodia, including the facts of Democratic Kampuchea and the Cambodian law (I am not sure how much of that he has managed to learn as last time he offered his two cents on law was when he decided to barge in with a lecture on the meaning of contempt at common law; but it has been about half a year since then so anything is possible) and judicial process. And it shows.

Keith Raynor opened with a series of repetitive questions about … it is not easy to be ready for something like this so I suggest the reader sit down or better yet sit down and buckle up … the procedure of having entries made into a family book during Democratic Kampuchea. No, I do not take drugs, I do not drink and I do not have a mental disease. It really did happen and he really did spend over half an hour of the court’s time on this. The reason for it was to show that So Socheat was unreliable and not a credible witness because, according to Keith Raynor, she lied to commune registrar about her son’s date of birth when it was being registered in the family book. He managed to show nothing, other than that So Socheat was not sure about the existing procedure for this during the time of Democratic Kampuchea. I would like to ask the same question of the people who went through this very process in the orderly Western countries a few years back to see if they might remember if there was a witness requirement. If Keith Raynor paid attention to his surroundings (not the yard of the court but the slightly broader surroundings that are a country called Cambodia), he would have probably noticed that there is an army of people in that country whose paperwork does not reflect their actual date of birth. I have no desire to explain why here as there is plenty of birth registration literature out there that gives an exhaustive – or if not exhausting than something very close to it -- answer to this question. Just so that we are clear, according to Keith Raynor all these Cambodian parents who put down dates other than the actual dates of birth of their children are liars. Can I get an ‘oh, boy’? It became clear very quickly that So Socheat was not aware of the procedure and did not have an answer to the question of discrepancy between her son’s actual date of birth and that that was recorded in the family book that would satisfy Keith Raynor’s lack of understanding of Cambodia’s context. That line of questioning was so idiotic as to even get Khieu Samphan’s national counsel who was honestly perplexed by while Keith Raynor was interrogating So Socheat about something this minute and with that level of hostility. Khieu Samphan’s national counsel was not the only one thinking that. Keith Raynor got nowhere with that but drew an adverse inference from the answers simply because he was looking for one.

Keith Raynor proceeded by calling So Socheat’s testimony her “version of events” which took place around the time of evacuation of Phnom Penh. All she said was, with few exceptions, that she did not know anything about politics and governance during that period and that she was a housewife and worked in a communal kitchen. If that is what Keith Raynor meant by “[her] version of events,” I am very curious about what his version of events might be. We never found that out because Keith Raynor had nothing up his sleeve, other than his badgering antics.

Keith Raynor then proceeded declaring So Socheat one of the five most important witnesses in Case 002/01. Let us linger around this statement a bit. What Keith Raynor implied is that an accused’s wife who is not educated and who did not hold a policy position in Democratic Kampuchea is this case’s one of five most important witnesses because of what she might have understood of what her husband might have told her about his involvement in the regime. Can I get an ‘oh, boy’ here? Many people do not like how Justice Scalia voted in DeShaney. Why don’t we go ask Maureen Scalia why he voted that way? The case is about 25 years old, her husband might have mentioned it to her, Maureen Scalia has no legal education and while she did go to college she spent the rest of her life as a housewife, being part of the Supreme Court’s communal kitchen, among other things. This oddly reminds me of someone else’s position vis-à-vis her husband’s work but I cannot quite put my finger on who that might be. Anybody? Can I get another ‘oh, boy’ here?

Having gotten nothing there either, the irate Keith Raynor proceeded on to another question of great importance – how much time Khieu Samphan spent with his wife after his return from his world tour. Keith Raynor argued that there was a discrepancy between two statements, in one of which So Socheat, according to him, said that it was a month and in the other 3 months. After much commotion in the midst of objections from the defense So Socheat’s statement on the matter was finally read in the original Khmer. After it was, Khieu Samphan’s national counsel responded by arguing that it was a translation error that rendered ‘to stay with my son of one month’ to ‘to stay with my son for one month.’ Keith Raynor completely lost it trying to move the panel to sanction the national counsel for interpreting what the witness said in the harshest possible way (or was the word ‘sternest’?) for unethical behavior in court filing an interference with the administration of justice complaint (the odds of this happening in the courtroom are low but, of course, this idiot defeated the odds). No, idiot (not my word; Raynor likes calling people that (, so if he does not see any problem with dishing it out, nor should he see a problem with taking it), the national counsel was not interpreting anything. He simply explained what that statement meant in Khmer, a language you do not speak. That is all that happened. Even if he did interpret his client’s statement, would Keith Raynor care to point out the law that proscribes this type of conduct? This isn’t London, Jack. Or, the British military, for that matter. I believe it is time for another ‘oh, boy.’

Having made out empty-handed again – with the exception of having been able to exchange fire with the defense and finally, after much pushing and prodding from the defense and the bench, learning how to cite the record -- Keith Raynor embarked on yet another crusade – if the other DK leaders moved out of a location codeworded K-3 as previously stated by So Socheat. Again, Keith Raynor brought no evidence to refute the witness’ statement. He brought plenty of lambaste and inveighing but no actual evidence. He, however, nonetheless conclude that So Socheat’s statement regarding the matter was something she “concocted” in cahoots with her husband. He proceeded by festooning that word with statements like “cynical, deliberate attempt to lie to the court” reaching the crescendo at calling the witness a liar (he did not say that a particular part of her testimony was false; he simply called her a liar). Keith Raynor did the seemingly impossible: he called a witness a liar without having proven even that bullshit he came to the cross-examination with. Truly incredible. And the bench said nothing. Can I get an ‘oh, boy’? Emboldened Keith Raynor proudly stated that it had been established that the witness was a liar but that he would like to continue cross-examining her for which he needed more of the court’s time because the defense dared to call him on the applesauce he brought into court thus costing him examination time. Of course, if the prosecution genuinely believes that So Socheat perjured herself, the Cambodian law permits criminal prosecution for this. All the prosecution has to do is to refer it to the national courts.

Then there was a lengthy line of questioning about the disappearance of the witness' K-3 neighbor for whom she, as a cook, put out food. In his by then recognizable distinct style Keith Raynor brought no evidence to counter the witness' testimony, other than some obscure and opaque passage from her husband's book. He substituted evidence with insinuations that the witness and her husband might have had something to do with the neighbor's disappearance. They may or may not have but all Keith Raynor brought with him to try to ferret that out was nothing more than a fishing expedition.    

What we have learned from this is a true treasure trove. Not for the merits of the case for which we have learned that So Socheat is not very well-educated, does not appear to be very bright, and that she worked in the kitchen during DK cooking her husband and other leaders’ meals (although we did not resolve the "key" controversy of her rank in that kitchen). But the treasure trove in this case is not in the merits. It is in the fact that we now know that the trial court does not require much proof before a witness can be called a liar and that witnesses can be treated in an undignified manner. The world has gained a world-class video for the dictionary entry of ‘badgering a witness’ and we have Keith Raynor to thank for that. We are now in the market for a dirty broom and someone who can swing it to give Keith Raynor a lift back to the stinky waters of the Thames and the hell out of this jurisdiction (the Cambodian judicial process already has way too many problems as it is to add Keith Raynor's nonsense to it).   


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