The Special Court’s Push for an Unfair Advantage for the Prosecutor: Fact or Fiction?

22 February 2007 at 23:40 | 683 views

By Ishamel Taylor-Kamara, USA.

I consider myself to be a pretty charitable person; so I can forgive anyone (except a lawyer, I suppose) who attempts to read a 307 page trial transcript and ultimately “cries uncle”. However, as with most things in life, even generosity must have some limitations.
This brings me to the analysis from Messrs. Abdul Karim Bangura and Sami Gandy-Gorgla of the Sierra Leone Working Group (“The Special Court’s Push for an Unfair Advantage for the Prosecutor”, February 14, 2007).

At the beginning of their article, Bangura and Sandy-Gorgla indicate that they will lay out “examples of [their] assertion [that] the Prosecutor has been given an unfair advantage to win guilty verdicts and convictions in the case against Chief Samuel Hinga Norman, Moinina Fofana and Alieu Kondewa”, the CDF indictees on trial in the Special Court. Unfortunately, however, that is where the distinction between fact and fiction ends in their article. You see, Bangura and Sandy-Gorgla really haven’t provided any credible examples of their assertion. What they have done instead is to pull out and distort excerpts from the first 35 or so pages of the 307 page transcript of the two-day session of the closing arguments in the CDF case, held on November 28 - 29, 2006. To prove my point, I will contrast each of those examples with what the transcript actually says, except the first example, which although mentioned in the transcript, involves a procedural issue:

Bangura and Sandy-Gorgla First Example: First, Rule 86 of the Court’s Rules of Procedure and Evidence stipulates that after the presentation of all evidence, the Prosecutor shall and the defense may present a closing argument. In essence, while the Prosecutor is mandated to offer a closing argument, the Defense can do so if, and only if, it chooses to do so. One must wonder why both the Prosecutor and the Defense were not given the same mandate, as it is not uncommon for a Prosecutor to forgo a closing argument, if s/he believes that doing so would serve no worthwhile purpose. This seems to be the case for the Prosecutor in the case against the Civil Defense Force defendants, as the Prosecutor has not been able to prove his case.

Trial Transcript: I am really not sure what the complaint is here, but the authors are clearly fishing for something, anything to stick. First, it is a moot because the Defense (for each of the three defendant) availed itself of its opportunity to offer closing arguments. Second, if, as Bangura and Sandy-Gorgla claim, “the Prosecutor has not been able to prove his case”, would not the mandatory requirement of the Prosecution to present closing argument be a disadvantage; reason tells us that it would because he would merely be repeating, if not re-enforcing, arguments deemed by Bangura and Sandy-Gorgla to be unconvincing; especially when you consider the absence of a jury that a Prosecutor can sway with highly-charged emotional appeals.

Bangura and Sandy-Gorgla Second Example: Second, because the Chamber was not advised as to the methodology of the third accused, it was assumed by the Bench that his methodology would follow the sequence, thematic or otherwise, as indicated in the final trial briefs of all three men. Is this not the same Court that in the beginning of the trial rejected the plea by the accused that they be given a consolidated and proper indictment?

Trial Transcript: Once again, the authors are on a fishing expedition. According to the trial transcript “[f]ollowing inquiries as to what methodology or methodologies the parties will be adopting in presenting their closing arguments”, Chambers was so advised by the Prosecution and each Defense Team, except counsel for the third accused Allieu Kondewa. Thus as part of customary housekeeping in trial practice, before proceeding with the closing arguments, the Presiding Judge observed thus: “Up to the time of coming to court, this Chamber had not been advised as to the methodology of the third accused. I assume, therefore, that their methodology will follow the sequence, thematic or otherwise, as indicated in their final trial brief”. (emphasis mine) (transcript, pages 4-6). I will be charitable and allow that Bangura and Sandy-Gorgla may have misunderstood the usage of the word “their” as identified above, but leave that to the reader to ponder.

Bangura and Sandy-Gorgla Third Example: Third, the Prosecution team was granted leave to file two annexes to the final trial brief some six days after the final trial brief by the Defense team contrary to Rule 86 (B) which states that "A party shall file a trial brief with the Trial Chamber not later than 5 days prior to the day set for the presentation of the party’s closing argument." Is this not a case of the Prosecutor breaking his own rule? It is quite obvious that the Prosecutor who has overwhelming financial, human and technical resources in his possession could not put his case together on time. Again, the reason for this is that he has no case; thus, he must continue to scramble past his own deadline to make up a case.

Trial Transcript: During an extensive colloquy (transcript, pages 7-17) with the three Judges on this issue, counsel for the first defendant Sam Hinga Norman argued forcefully that there were implications to the Court’s decision to allow the Prosecution to append two annexes to its brief (which was timely filed). However, as counsel ultimately appeared to concede there was no prejudice to his client’s rights, and counsel for the other defendants interposed no objections to the filing of the annexes. Thus, after hearing from counsel for the first defendant and the Prosecution on the matter, the Court issued its ruling, declaring that, among other things, no prejudice was demonstrated. (transcript, page 17). One observation that I should make (which is, clear from the colloquy referred to above) is that late or amended filings and requests for extensions of deadlines are all an unavoidable feature of trial practice. Sometimes, omissions are inadvertent; at other times, new or pertinent information is obtained at the eleventh hour. It is up to the Court to determine what is or isn’t permissible. As demonstrated in the trial transcript, the Special Court is no different.

Bangura and Sandy-Gorgla Fourth Example: Third (sic), the Presiding Judge had a document addressed to the Court and certified by Raymond Ewing, a detention officer, which read that the first accused would not attend court on the day of the closing arguments for reasons which he, the first accused, would only disclose to the judges. The Prosecutor, however, submitted, and the Court agreed, that the Trial Chamber could conclude that the first accused had waived his right to be tried in his presence because the document was not signed. At least three questions can be raised on this issue. First, why could a detention officer trained by the Court certify a letter that was not signed? Second, why would the Trial Chamber agree with the Prosecutor’s argument that the first accused had waived his right to attend court for closing arguments when it is expressly stated in the letter that he would like to talk to the judges? Third, how did the judges know that the letter is from the first accused when they had already rejected it on the ground that it was not signed?

Trial Transcript: Once again, Bangura and Sandy-Gorgla are pulling teeth to support their unsupportable claim. I would like to cut to the chase and simply ignore the three rhetorical questions above. But first let me point out that, at least one of them renders the authors whole line of reasoning moot. If, as they seem to do, the authors consider the communication from Hinga Norman to be flawed because it “was not signed”, then how could such communication be used as a valid means to advise the Court that the defendant’s “right to be present” has not been waived. Either the communication is deemed valid or it is not.

In any event, according to the trial transcript (transcript, page 18), the detention facility of the Special Court submitted a document to the Court as certified by one of its supervisors, indicating that Hinga Norman, the first defendant, had refused to attend court on November 28, 2007 as a protest for a reason he would reveal only to the Judges. The document also indicated that although Hinga Norman refused to sign the document, he specifically did not waive his right to be present.

As Bangura and Sandy-Gorgla point out, the Prosecution submitted that the first defendant had by virtue of the material before the Court indeed waived his right to be present. The Prosecution, in a nutshell, argued that “absence due to protest is a waiver” (transcript, page 22). Defense counsel disagreed, pointing out that the document presented to the Court expressly states that the first defendant “is not waiving his right to be present” (transcript page 19). Following a lengthy colloquy (transcript, pages 17-23) among the Chamber, the Prosecution and counsel for the first defendant, the Court ruled that that the closing arguments should proceed, stating in pertinent part, “we deem that the [first defendant] has waived his rights [to be present] impliedly” (transcript, page 23).

Bangura and Sandy-Gorgla Fifth Example: Finally, the Prosecutor noted that the Civil Defense Force was not illegal, considering its aims of restoring the democratically elected government. Nonetheless, he argued that he should use uncorroborated evidence against the defendants, and the Court agreed with him. How can the Court be perceived to be fair if it allows the Prosecutor to use evidence that has not been proven in the proceedings?

Trial Transcript: Before referring to the transcript, let me address the rhetorical question posed by Messrs. Bangura and Sandy-Gorgla. To begin with, it is the Court’s role to determine what evidence is permissible. That is, during a trial, a Court rules on whether evidence is to be admitted or excluded— whether or not the evidence is deemed to be corroborated, uncorroborated, first-hand knowledge or hearsay. Unfortunately, Messrs. Bangura and Sandy-Gorgla have deliberately mischaracterized the meaning of the term “uncorroborated evidence” and the context in which it was used by the Prosecutor in the introductory portion of the Prosecution’s closing arguments. To truly appreciate this deceit one has to read the relevant portions of the transcript (transcript, pages 25-29; particularly page 29). Essentially, during this phase, the Prosecution was laying out its case and in discussing its position as to how the Court should “evaluate the evidence before it”, addressed various types of evidence, one of them being uncorroborated evidence, i.e., evidence provided by only one source or backed up by another. This, of course does not make it unreliable; as the Prosecution points out, as with any single piece of evidence it should be assessed in the context of the totality of evidence; and just as importantly, only the Court can determine what weight it shall assign to that single piece of evidence within the whole. To better understand this , I provide here the penultimate paragraph of the transcript regarding this issue:

Mr. Staker: (Prosecutor) ... “It is, of course, the case that if evidence is uncorroborated that goes to weight. But, again, even uncorroborated evidence must be looked at in light of the evidence as a whole. If we have, for instance, uncorroborated evidence of a single evidence of a single witness of a particular attack on a particular village, if that evidence is consistent with other evidence of similar attacks on other villages at the same time that can be seen, when the evidence is viewed as a whole, to have been part of a single campaign fanning out to various villages in the region, the totality of evidence, in itself can be corroborative of that evidence. Certainly the fact that uncorroborative evidence is consistent with a general pattern of the evidence as a whole is a matter that must also go to the weight”. (transcript, page 29)

Obviously, this is merely the Prosecution’s position on the evaluation of evidence, but it is well-founded in law. Messrs. Bangura and Sandy-Gorgla, in addressing that position, only sought to give the impression that the Prosecutor has been allowed by a pliant Court to build his case on false evidence. How else can one interpret their unsubstantiated charges, such as those that appear in their concluding paragraph, reproduced below. It is not too hard for me to decide whether their article is fact or fiction. The transcript speaks for itself. I trust the reader will draw his or her own conclusions as well.

Bangura and Sandy-Gorgla Conclusion: Indeed, the preceding evidence clearly shows that the Court has bent backwards to allow the Prosecutor to manipulate the proceedings to win guilty verdicts against the three Civil Defense Force defendants. In doing so, however, the Court has also exposed the fact that the Prosecutor has no case. Indeed, to turn one of the Prosecutor’s statements upside its head, it would be "ridiculous" to find the three "accused guilty of the crimes for which they stand trial," and they should be "acquitted."


* This article was completed on the day reports concerning the sudden death of Hinga Norman in Dakar, Senegal were received in the United States. The author wishes to advise that the article being submitted today (February 22, 2007) was completed prior to the announcement of the first of such reports and accordingly, does not attempt to address the impact of this sad event on the analysis set forth herein.

Ishmael Taylor-Kamara, Secretary General, Concerned Sierra Leoneans in North America, New York New York.