Expert: ECCC Must Beware the ‘Messy’ Defendant

The founder of the radical Black Panther Party, Bobby Seale, sat through his 1969 conspiracy trial in Chicago, chained to his chair with his hands tied and his mouth gagged–a low point in US legal history.

The lead defense counsel whom Seale had earlier dismissed, the late civil rights attorney William Kunstler, described the Chicago court as a “medieval torture chamber” and “a disgrace.”

But where did Judge Julius Hoffman–whom Seale and seven other anti-war defendants described as a “racist” and a “fascist,” and whom Seale allegedly invited his followers to attack–go wrong? Just how far can a judge go to maintain order? And what should he or she avoid doing to maintain order in court?

In a lecture delivered last week at the Khmer Rouge tribunal, Michael Scharf, professor of law at Case Western Reserve University in Ohio, said that in seeking to respect the rights of all parties, while aiming to prevent chaos in court, judges everywhere have often failed at both.

But Scharf said that war crimes tribunals–where defendants are often members of a defunct government or adversaries defeated on the battlefield–are especially vulnerable to the antics of a fallen tyrant. Such suspects are likely to hold the court itself in contempt, may try to disrupt the discussion of evidence or the testimony of victims, and may also want to enflame his supporters.

Alternately, such a defendant could lash judges with abusive obscenities and start a hunger strike, as did the Serbian leader Vojislav Seselj. Or arrive in the court in pajamas, as did former Iraqi Deputy Prime Minister Tariq Aziz.

The Extraordinary Chambers in the Courts of Cambodia should be prepared for such behavior, which denies justice to the public and to victims in particular, Scharf said in an interview.

“Lawyers or the defense counsel or defendants may start to move in this direction,” he said. “For every disruptive way that they try, there’s a remedy that the court can try. It’s sort of a dance, a tango that goes back and forth.”

“They have to be ready to expect the unexpected. It’s a lot like a parent-and-child relationship. You can’t overreact and you can’t make threats that you aren’t going to fulfill,” he added.

In 2004 and 2005, Scharf gave expert advice to the Iraqi High Tribunal, where the courtroom frequently suffered bedlam.

Of the five people now detained at the ECCC, one, Kaing Guek Eav, alias Duch, has admitted responsibility and called for a speedy trial. Other defendants have exercised their right to remain silent.

“Right now it seems like everybody feels very confident that these are older, demure defendants, that these are lawyers that are experienced and, so far, cooperative,” Scharf said.

“But I think there’s an equal chance you’re going to see Jacques Verges do what Jacques Verges has done in the past,” he said, referring to the French lawyer of Khieu Samphan, who sometimes practices what he calls “trial by rupture.”

The ECCC in April put Verges on notice that he risked exclusion from the trial after he announced to the Pre-Trial Chamber that he would not participate in a bail hearing because evidence was not available in French.

Ahead of another hearing next week involving Verges, prosecutors this month asked the Chamber to limit discussion in advance to specific questions to ensure “focused arguments.”

Verges has said his actions are the natural outcome of the court’s violation of Khieu Samphan’s rights.
According to Scharf, the court should consider having stand-in counsel who can replace lawyers whose misbehavior prohibits the administration of justice.

For extreme cases like a hunger strike, the court should also ponder the question of allowing force-feeding, which is banned at the International Criminal Tribunal for the former Yugoslavia but has been imposed on detainees at the US Naval Base at Guantanamo Bay, Cuba.

If a defendant starves to death, justice cannot be done, said Scharf, recognizing that the alternative represents a tough decision.

“If you know about force-feeding, it’s terrible. They do it through the nose. It’s extraordinarily painful. It’s demeaning,” he said.

Richard Rogers, acting head of the Defense Support Section, said Thursday he had taken exception to Scharf’s remarks.

Devising additional restrictive and coercive measures for defendants is unnecessary in a country where defendants are often tried in the absence of counsel or shouted at by judges, Rogers said.

“Now we have the prosecution expert telling us that we have to treat the accused like misbehaving 13-year-olds. That is not the message we should be sending,” he said.

“He is not giving enough credit to the judges, who are perfectly able to control the proceedings at the ECCC without violating the rights of the accused, as the prosecution expert would recommend.”
“It’s a slippery slope and it leads to coercive measures like those at Guantanamo Bay,” he added.

International Deputy Co-Prosecutor William Smith said Thursday that force-feeding at the ECCC was an improbable scenario.

“It would be highly unlikely that we would consider that,” he said.

But what about the defense seeking to de-legitimize a court? Is disobedience never a path to justice?
Verges says his Algerian terrorist clients in the 1950s were tried and convicted by a French court seeking to maintain colonial rule. By insulting the judge, singing the rebel anthem, brandishing the Algerian flag, Verges helped rouse an international protest campaign.

He also publicized facts concerning torture and forged evidence—which so embarrassed the French government that none of Verges’ clients were executed.

Scharf, however, said court procedures cannot allow for their own abuse.

“It’s based on the idea that there’s decorum, that there are rules, that both sides play by the rules and that if they do, justice will prevail,” he said.

“If you just make a mockery out of it, then the court just becomes a complete farce. Nobody wins.”

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