Author: Jenia Turner

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New Empirical Work on International Criminal Law

Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.

Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.

The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.

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German Bundestag Passes Plea Bargaining Law

Germany was once known as a “land without plea bargaining.” Those days are now long gone.

On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.

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How Far Can Lawyers Go in Criticizing the Court? An International Perspective

At the end of May, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court composed of national and international judges, issued a warning to a defense lawyer for offending the court and obstructing the proceedings. The lawyer was Jacques Verges, a French attorney who has made a career of representing notorious clients and taking on politically charged cases. At the ECCC, he represents Khieu Samphan, Cambodia’s former Head of State, who is accused of committing crimes against humanity and war crimes during the horrific era of the Khmer Rouge. Verges was reprimanded for using delay tactics and implying that the court’s judges are corrupt. The decision raises the question of how far an attorney may go in raising questions about the integrity of an international court.

Verges made the remarks during a pretrial hearing concerning his client’s request for release from detention. During the hearing, which the court had postponed twice to accommodate Verges’s schedule, Verges made no comments on the merits of the motion, but instead hinted at the possibility of the tribunal’s corruption: 

…Firstly, I shall be silent because it is not for me to be more concerned about your honour than you yourselves are. If you consider that corruption should not be discussed, I am not going to force the discussion on you. I shall be silent because I understand your caution in this regard and I think that the presumption of innocence that you sometimes deny the accused may be of some benefit to you. And I shall be silent because the Head of State which hosts you has stated publicly that he wishes you to leave, making of you, in a moral sense, squatters. I shall be silent also because a member of the Government of the country that hosts you stated that you were obsessed only by money, thus confirming the charge-be it grounded or not-of corruption, which blights the tribunal.

In response, the court warned Verges that if he continued along these lines, he would be sanctioned. The court also forwarded a copy of the warning to the Cambodian and French bars.

What makes the situation at the ECCC complicated is that there have been numerous allegations of corruption involving ECCC court staff. These allegations have come from inside staff members, human rights NGOs, and the UN itself, whose Office of Internal Oversight Services investigated allegations of corruption and delivered a report to the Cambodian government implicating specific individuals (the Cambodian government has not revealed or followed up on this report). Both defense attorneys and victims’ attorneys have called on the court to investigate the question further. So far, the allegations focus on kickbacks that ECCC staff members may have paid to Cambodian officials in return for their positions at the court. The allegations appear to implicate only the Cambodian staff and not any of the judges. But motions by other ECCC defense teams have argued that even corruption among court staff could affect the fairness of the trial. As one motion states: “if staff members entrusted with sensitive tasks are willing to engage in graft, those individuals may be equally willing to follow improper instructions, such as the manipulation of evidence to support a preordained political outcome.”

Verges’s comments to the court might be read to stop short of any direct accusation of the judges, but they certainly hint at the possibility of improper motives. Perhaps more relevant for purposes of the warning is that his comments were raised during a hearing on a motion to release his client from detention, distracted from the merits of the motion, and did not appear to be reasonably calculated to advance the legal interests of his client. Trying accused war criminals from the terrible era of the Khmer Rouge remains the ECCC’s primary business. As long as this mandate remains, the ECCC judges cannot allow the trial of every defendant, and every related motion, to be turned into an argument about the court’s own separate problems. ECCC judges were therefore correct to warn him that they would be prepared to take more serious measures to ensure orderly and speedy proceedings.

Still, while Verges’s statements may have justified the warning in this case, the ECCC should be cautious in reprimanding lawyers simply for raising the question of corruption at the court. The issue is too important to the court’s legitimacy, as some of the international judges themselves have acknowledged. It would be unfortunate if the only measure that the court takes in response to allegations of corruption is to reprimand defense attorneys for raising the issue.

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Truthseeking and Criminal Procedure in the Supreme Court’s Last Term

Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.