Says no memory of private remarks on evidence
Khmer Rouge tribunal Co-Investigating Judge Marcel Lemonde this month categorically denied defense allegations that he had instructed his subordinates to favor evidence for the prosecution, an allegation that has caused three defense teams to seek his disqualification.
In a witness statement submitted on Nov 5 in response to two motions seeking his removal from the court’s current investigation, Judge Lemonde said he also did not recall ever telling senior UN investigators to favor collecting evidence tending to show the guilt of the court’s five current suspects.
In an affidavit last month, Wayne Bastin, Judge Lemonde’s former chief of intelligence and analysis, accused Judge Lemonde of saying, to the apparent dismay of his staff, that he preferred “that we find more inculpatory evidence than exculpatory evidence.”
The statement, in which Mr Bastin said he felt obligated to come forward in the interests of justice, created the worrying appearance of disaffection among Judge Lemonde’s ranks and fueled longstanding defense accusations of unfairness.
In his statement, Judge Lemonde said Mr Bastin had not in fact accused the judge of giving any instructions nor had Mr Bastin taken any immediate action to report such a claim to UN authorities.
“I do not remember having said the words that Mr Bastin puts in my mouth,” Judge Lemonde said in his statement.
“If I did say those words, or some version of them, it would obviously have been said in a joking tone and only a person completely devoid of a sense of humor or intelligence could have believed that it was a question of ‘orders’ given to the investigators.”
Judge Lemonde also cited six media reports quoting remarks in which he appeared to emphasize the importance of fairness and the role of the defense.
The statement was annexed to a pleading before the court’s Pre-Trial Chamber in which Judge Lemonde called for the dismissal of defense motions and accused Mr Bastin of breaching confidentiality.
Judge Lemonde reasoned that, to demonstrate the existence either of actual bias or of the appearance of bias on the part of a judge required the defense to meet heavy burdens of evidence, which they had failed to do.
Judges are also entitled to a presumption of impartiality which cannot easily be disproved, he said.
“These applications perfectly illustrate the damage that unbridled and ill-considered ‘revelations’ can have on the ECCC’s historic mission,” Judge Lemonde wrote.
“The defense are well aware of the damage that their application can do to the ECCC and that, therefore, if it is ultimately held to be unfounded, there can be no justification for having made their applications public,” he wrote, noting that he had decided to ask that his response also be made public.
