The Prosecution Presses On

Much material for a single week: Noun’s personal rebuttal of the prosecution’s presentation of documentary evidence against him, Khieu’s withdrawal of an offer to subject himself to cross-examination, and Steve Heder’s extensive testimony.

 

Noun decided to personally (although the entire time he read from a paper the authorship of which is unknown) take on a rebuttal of the documentary evidence the prosecution presented against him the week before. The prosecution’s delivery was what it was supposed to be – structured and coherent. Noun’s rebuttal was a weak gumbo of ‘blame it on all on Pol’ coupled with a couple of generic denials, odd comparisons (the Snowden reference was absolutely priceless) and an attack on the use of copies of documents, academic publications and interviews. Noun did not mention either Thet Sambath’s book or movie. Those things are a smoking gun and simply trying to sweep them under the rug will not deny them the tremendous weight the trial court is likely to assign to them. Nor will saying things that directly contradict the statements made to Thet and now available on film. Noun did not go beyond the general statements and, unlike the prosecution, did not offer the court his views on as to why particular pieces of evidence adduced against him should not be given weight by the court. Of course, the only reason the proceedings were exposed to something like the sources of evidence part of Noun’s rebuttal is because the trial court has impermissibly confused these proceedings beyond the point of no-return as to the applicable rules of evidence. It has been my contention throughout this process and made in various capacities that the law on the matter could not be clearer: Article 321 of the Criminal Procedure Code states that “[u]nless it is provided otherwise by law, in criminal proceedings all evidence is admissible,” with “[d]eclaration[s] given under the physical or mental duress” (which is a constitutional prohibition) being the only type of evidence explicitly prohibited by statute. The rest of what is being applied now is the trial court’s invention which it had no authority to make due to the little known concept called the rule of law. Parties have taken advantage of this aberration from the rule of law on countless occasions throughout these proceedings and Noun’s most recent statement is but one example of that.        

 

Khieu refused to be cross-examined. What does this even mean in the Cambodian legal process? Let us see what the law which binds the trial court has to say on the matter. Article 325 states that first the presiding judge gets to question the accused. In doing so he is permitted to “ask any questions which he believes to be conducive to ascertaining the truth.” Then it is the prosecution’s turn followed by the defense and “all the parties that may be authorized to question the accused.” Presumably, the parties are permitted to “ask any questions which [they] believe[] to be conducive to ascertaining the truth” insofar as these questions are permitted by the presiding judge. It is quite uncomplicated a rule. It is understood, however, that under the law that established the ECCC (KRT Law + codified KRT Agreement) there are rights that derive from articles 14 and 15 of the International Covenant on Civil and Political Rights (‘ICCPR’). Article 14 of the ICCPR contains a right “[n]ot to be compelled to testify against himself or to confess guilt.” How does this right work with the procedure under art. 325 of the CPC? In short, not too well. The fact of the matter is that article 325 was written with a right against self-incrimination in mind but not with a sweeping right not to be compelled to testify in the proceedings against himself at all. The trial court has grappled with this issue throughout these proceedings and now appears to be of the opinion that said article 14 right protects from being compelled to be cross-examined by the parties but does not protect from being compelled to be examined by the bench. It is a very odd ‘neither fish, nor fowl’ interpretation of said article 14 right for which the trial court hardly deserves approbation. Be that as it may, Khieu finally decided to avail himself of that right thus avoiding being cross-examined by the prosecution (and the civil parties but I do not believe Khieu was overly worried about being cross-examined by them). The prosecution was “stunned” by Khieu’s invocation of said article 14 right and rushed to show that it was ready to bend over backwards to accommodate Khieu and induce him to waive said article 14 right. Besides some technical inducements the prosecution came back with a 15-year old girl’s ‘you promised we would be together forever’ type of statement which showed that it was peeved by Khieu’s sudden “change of heart.” To beef up the 15-year old girl’s snivel the prosecution showed some teeth when it cited what it called “authorities” (when is the prosecution going to learn that the ICC, ICTY, ECHR and others’ case law does not bind this court and is not a compelling authority insofar as the law that governs this court is concerned? I understand that ‘never’ is the answer to this but it does not hurt to keep asking the question) that permit the trial court to “draw adverse inferences” from an accused’s selective invocation of the right. Khieu responded in person and through his international counsel with a litany of grievances to compel the satisfaction of which he presumably invoked the right. Khieu’s statement was confusing, yet coherent; the same cannot be said about his counsel’s statement which was a complete stream of consciousness (no it is not the translation; it is just as gruesome in French). The trial court let the counsel’s diatribe drag on for what felt like days from which we learned that the Khieu defense is very unhappy with the trial court (something we have known for some time now and most definitely since the Khieu defense’s diatribe at the severance hearing ordered by the Supreme Court).  

 

Dr. Steve Heder – masquerading as ‘Mr. Steve Heder’ for the reason of the prosecution’s little ploy to get him in as a witness, as opposed to an expert --, a Democratic Kampuchea scholar of note, testified. With the exception of the prosecution’s redundant and highly annoying requests to confirm what he had written in his book (it is understood that the prosecution is simply reading all this into the record but what is the answer that is expected to a question of ‘does what you wrote on so-so in your book correctly reflect what you meant to say?’ ‘ah, no, it does not; I lied’ or ‘ah, no, it does not; I had trouble phrasing it in my native language and here’s what I really meant to say’), Heder’s testimony was a big help to the prosecution’s case (particularly his interview with Khieu). It will be interesting to see what the defense comes at Heder with next week. 

 

Overall it has been the most interesting week in a long time, thanks to the cessation of the seemingly endless stream of people who had 15-minutes worth of testimony but who were kept on the stand for days at a time and way past their value as witnesses (provided it was there to begin with).