Some Fireworks to Mark the End: Part I

Steve Heder’s testimony continued on throughout the week. A tremendous amount of time was wasted on the prosecution’s objections. The prosecution, however, can hardly be blamed at least for the bulk of them. Many – not all (the rest were Raynor’s regular shenanigans that the President correctly cut off with prejudice) – of the objections were necessary due to Noun’s international counsel Victor Koppe either being unable to grasp or deliberately ignoring the fact that Heder was summoned to testify as a witness, not as an expert. Koppe seemingly felt that by doing so he would be able to get more exculpatory statements out of Heder. This did not happen. In fact, what did happen was Koppe having a tiff with the bench and giving the prosecution plenty of ground to launch successful objections from. This type of representation does nothing other than causing prejudice to Koppe’s client, Noun Chea. So far as I am concerned, this examination tactic did not yield Koppe a single shred of usable testimonial evidence. Most importantly, Koppe did not get to ask Heder the most important question of all: ‘Mr. Heder, isn’t it true that most of your life until now has been spent encouraging the prosecution of my client?’ Nor did he ask the second most important question (for which there was an opening): ‘Mr. Heder, isn’t it true that the reason you were invited to visit Democratic Kampuchea in 1979 was because you were perceived as a supporter by the Democratic Kampuchea government, in the same manner Malcolm Caldwell, Elizabeth Becker and Richard Dudman were who preceded you on a trip to Democratic Kampuchea?’ Heder is a prominent Khmer Rouge expert but these two questions would have been critical to the bench’s understanding of the sources of his knowledge, as well as juxtaposing the bias he might have had in the 1970s with the bias he developed at some point in the 1980s. Much wasted opportunity and much time spent on Koppe pouting instead of accessing useful testimony.           

Khieu’s international co-counsel Anta Guisse took a very different approach to cross-examination. She did understand the bench’s definition of ‘witness’ and drew very few objections from the prosecution. This gave her an opportunity to make the best of Heder’s presence in court to the extent she had sufficient knowledge to access the parts of Heder’s knowledge that might be seen as exculpatory for her client. Guisse’s strategy appears to have been to have Heder confirm that much in Democratic Kampuchea was left to the local administration and was directed from the Center only in broad strokes and that her client did not have the status of a senior leader between 1975-79. She got some of this confirmed and much of it simply placed in doubt (and this is where in dubio pro reo beautifully comes in) while the rest was not confirmed. In the context of doubt, it is amazing how little we still know about the much discussed Office 870. During my interview with Khieu in 2004 I asked him about Office 870 and whether he had run it. My notes show that he said he did not and that Pong did. Then I asked what Office 870 was responsible for and the answer given to me was that Khieu was not aware of the full extent of Office 870’s responsibility. Sadly, after millions of dollars of the last 7 years of investigations this is exactly what we know about Office 870 – just what we knew before the inception of this court. Heder offered a theory (the prosecution desisted from objecting here, presumably, for Guisse’s overall good behavior and Guisse got a free hand with using Heder as an expert) that Office 870, on occasion, could have been just Pol Pot. This is an odd theory as simply because in modern times someone signs as ‘Justice Sector Support Team’ does not mean that that person is the Justice Sector Support Team but it simply means that s/he signed the letter on behalf of that team. Other theories abounded, many quirky. One of them was that, to many, Office 870 was the same thing as “Washington” which simply connotes the highest of government without indicating a particular institution. Then there was the confusion regarding ‘Office 870’ and ‘Committee of Office 870’ and whether it was one and the same thing or two different things. Then there was S-71 and what that meant within the structure of Office 870, the thematic divisions of Office 870, and much more. There was nothing new or enlightening in any of this; not anything that was not known to those with an interest in the matter prior to the inception of the court, anyway. While of no interest from the historical viewpoint, Guisse masterfully located or stumbled on a goldmine in this part of Heder’s testimony. The upshot here that the bench might see is that not only is Khieu’s role in regards to Office 870 not clear, what Office 870 was remains shrouded in mystery (I agree with Heder that this is exactly how it was meant to be). Now that this has been said in court Guisse can put can this line in her closing statement: ‘How can the prosecution accuse my client of participating in something (Office 870) that no one knows exactly what it was and how it related to the allegations of criminal acts?’ Beautiful work on Guisse’s part.