Some Fireworks to Mark the End: Part II

 

On July 18, 2013 the Khieu defense team got a letter published in a local newspaper. The title of the letter is ‘Khieu Samphan Is Forced to Remain Silent.’ The purpose of the letter, as it seems, is Khieu’s public answer as to why he has invoked his right to remain silent and therefore will not subject himself to a cross-examination by the prosecution and the civil parties that he promised he would.

The prosecution was already peeved by the invocation of the right prior to the letter (See below ‘Prosecution Presses On’); the letter sent the prosecution flying right off the handle. Let’s take a close look at what pushed the prosecution to the edge. First, the prosecution was chagrined by the defense’s postulation that the bench admitted “thousands” of the prosecution’s documents into the record and paid no heed to the “many concerns” expressed by the defense. I generally agree with the prosecution that this is not an accurate representation of what has taken place during the trial in Case 002/01. It is a broadly sweeping remark and anyone familiar with the record knows that this simply has not been the case. With that said, if I were the prosecution, I would not be relying on the DC-Cam executive management’s performance to prove that this allegation of the Khieu defense is without merit, as doing so would be akin to leaning on the part of a 3-legged table with the missing leg (See below ‘Can Youk Chhang Save the Reputation of His Documentation Angkar’ (Feb 4, 2012); ‘The House that Youk Built’ (Feb 11, 2012)). Being, essentially, in agreement with the prosecution, I note that it is interesting that it is the Khieu defense – and not that of Noun – that wrote this letter. It would have been much more grounded in what has actually transpired during this trial if the Noun defense had written that letter. Without looking at the record, what immediately springs to mind is the bench cutting off the Noun defense’s inquest into K-5 or the Bamboo Wall project. I do not know where the Noun counsel of the day were going with that inquest but there was plenty of great material in that (one such thing is the provincial and district-level PRK officials’ pilfering of the Vietnamese and Soviet aid (given Vietnam was on life support from the Soviet Union at the time it was all Soviet aid by different names) intended for K-5 that caused the collapse of that project; it could have been argued that it was the lack of the KR heavy-handed governance that caused the pilfering that, in turn, made the project collapse and the black market swell up with the pilfered goods)). Second, the prosecution was outraged by the Khieu defense’s statement that “the judges also decided to deny the possibility of a real discussion on the mountain of evidence admitted.” The prosecution characterized this statement as “the defense living in a parallel reality.” It is impossible to meaningfully agree or disagree with the defense’s statement or the prosecution’s rebuttal without knowing what the definition of “a real discussion” is within the context of the criminal process. Given that “a real discussion” is not a legal category, its definition is unavailable to me. It is therefore my opinion that this can be argued one way and the other and who the winner is will depend on the charisma of the arguer, rather than the math of the argument. Where I part ways with the prosecution is calling the defense’s performance “slopp[y].” The simple truth is that they are overwhelmed by that “mountain of evidence.” The undisputed fact that they are is due to a number of undisputed factors that from the get-go stacked the process against the defense: (1) millions of dollars and efforts of a number of dedicated individuals were expended on getting the prosecution its evidence for 30 years prior to the trial; most of these individuals and institutions were not looking for exculpatory evidence (it is nonsense if they say that they did); in fact an entire Khmer Rouge ethos was created on the basis of the bits and pieces of evidence and tremendous extrapolations made on their basis by these individuals of decades of mulling; (2) the prosecution ended up with top-notch KR scholars; the defense got one on a part-time basis and only for one team; they now have none (unless we pretend that Soun Visal is a KR expert); (3) the prosecution has run a well-oiled machinery from the start while the Khieu defense started out with Jacques Verges who raised much hell and did absolutely no work and So Sovann who raised no hell, did no work and given my knowledge of the man’s ability from other legal efforts and given his performance in court (that is a matter of record) was incapable of producing any coherent legal work; most literally years were wasted by these lawyers until the current team was put in place; the Khieu defense was a visible underdog for a long spell and they did come from behind to where they are today (and Anta Guisse’s recent performance is a testament to that (See below ‘Some Fireworks to Mark the End: Part I’)); the time wasted should be imputed to the Defense Support Section who allowed the hiring of someone with the competence level of So Sovann and tolerated the shenanigans of Jacques Verges for way too long; (4) by the time people in the prosecution like Will Smith and Tarik Abdulhak had developed a reasonable grasp on what they were looking at, the Khieu defense was still rocking as a dingy in a storm; while the sea is much calmer now, the Khieu defense has yet to fully overcome the effects of that storm. For all these reasons, I would refrain from using the word ‘sloppy’ to characterize the Khieu defense’s present performance. Third, the prosecution found it “amusing” that the Khieu defense now took issue with the separation (it is called ‘separation’ in the Internal Rules, not severance, so I am going to go with this term) of the proceedings in Case 002. I cannot possibly disagree with the prosecution here. That’s simply because they happen to be right and there is no disagreeing with what is right. Except that I do not find the Khieu defense’s statement to this effect “amusing;” I find it preposterous. In 2011, when separation was ordered, I was expecting a perfect storm to come from the defense for a variety of reasons (See below ‘Brief Amicus Curiae; In Support of Neither Party’ (Apr 29, 2013)). Surprisingly, nothing happened – all the 4 defense teams consented to the separation order. Michael Karnavas was on one of those teams and I thought he might have something up his sleeve that I could not think of (albeit it was hard to imagine what that could have been). In 2012, when the prosecution appealed certain aspects of the separation, I expected the defense (all 3 teams) to finally wake up and attack the separation order (See below ‘Trial Chamber’s Frankenstein Monster: Res Judicata and Judicial Notice v Presumption of Innocence’ (Nov 22, 2012). Again, nothing of significance happened (See below ‘Brief Amicus Curiae; In Support of Neither Party’) other than the defense teams opposing the prosecution’s vision of what the separation should be, not the separation itself which is what they should have been opposing. At this time I knew Karnavas had nothing up his sleeve and that he simply dropped the ball. And it is now that the Khieu defense has finally woken up to the absolute horror for their client that the separation has been???!!! I agree with the prosecution that it is pretty outrageous and the Khieu defense cannot get a pass on this one as being a counsel requires being able to think just a tad faster than what is going on two years now. The prosecution is correct: the Khieu defense’s position on this matter is untenable (except for the use of the expression ‘the dice is loaded’ which is great and which does not get nearly enough play; trompe l'oeil to describe the prosecution's maneuvering was colorful too). Fourth, the prosecution sought to show that the Khieu defense became derelict from their duty enshrined in the Basic Principles on the Role of Lawyers. The prosecution cited articles 12 and 14 in support of their contention. The language of article 12 is vague and cannot stand on its own; the prosecution completely misread – inadvertently or otherwise – the language of article 14. Even if the prosecution’s reading was to be accepted, they would have to show that speaking to the press on what is a matter of public record violates the “recognized standards and ethics of the legal profession” in Cambodia. Unless the prosecution knows something I do not, there is no and never has been an ethical standard in Cambodia that precludes lawyers from discussing with the press what was said in open court. The prosecution’s argument on the matter is without merit and feels like an exercise in stretching the law to fit the facts before us. The prosecution employed a mountain of epithets but words like ‘scandalous’ in law actually mean something and cannot be thrown around willy-nilly. With that said, I am in agreement with the prosecution’s contentions more than I am not. In fact, there are things in the Khieu defense’s letter that the prosecution did not mention that I find equally objectionable. The frontrunners of these are “race against death conducted in the guise of a criminal trial” (internal quotations mark omitted) and “this show trial.” This is so ridiculous that it merits no extensive commentary other than to say that what has transpired is most definitely not a “guise” and not “a show trial” (albeit the irregularities have been numerous) as Cambodia is a world champion of processes that mascaraed as criminal trials and of show trials and anyone familiar with the Cambodian standards of justice knows that this accusation applied to this trial rings hollow.

The clarity of what happened is inescapable: the Khieu defense ran out of options of pursuing their defense theory, used the only weapon they had in their arsenal by advising their client not to testify, and went public with their explanation as to why.   

While I agree – to a greater extent – with the prosecution’s arguments, I believe they should have been advanced in the same forum in which the defense raised their contentions – the newspaper. This is to say that the prosecution’s arguments are, for the most part, sound but they picked the wrong venue to advance them. A request for sanction under Rule 35 of the Internal Rules is without merit and is entirely ridiculous as there is nothing in Rule 35 that prevents the defense from restating that which was said in open court and expressing their opinion about the fairness of the process. With that said, most of the Khieu defense’s contentions made in the letter are either untenable or flat-out absolute nonsense. Thus, in my opinion, the Khieu defense was well-within its rights when it made them but their content happens to be embarrassing (not in the legal but in the plain sense of the word ‘embarrassing’) on this occasion. I believe that to save face the Khieu defense should retract the letter but the trial court should not sanction the Khieu defense and rule the prosecution’s motion to this effect inadmissible for lack of merit within the meaning of Rule 35. The prosecution then should submit its reply to the same newspaper which published the Khieu defense’s letter and possibly to a Khmer language newspaper to ensure that the public is informed  in Cambodia is watching these proceedings) of the prosecution’s position as the only way of getting the prosecution’s message to the public (no one (there is a miniscule population segment that does but it does not detract from my use of ‘no one’) in Cambodia is watching these proceedings)).