The Trial of Charles Taylor

Monday, June 4 was the first day of Charles Taylor’s trial by the Special Court for Sierra Leone. It was a day that many people had looked forward to for a long time—but no one could have predicted it would turn out as it did.

The trial got off to a confusing start when Taylor refused to appear in court and fired his lawyer, Karim Khan. Khan then got into a heated exchange with SCSL Judge Julia Sebutinde before surprising the packed gallery by gathering his belongings and marching out of the room.

Below, one of our legal analysts explains what happened and why:

Why didn’t the Special Court make Taylor appear in court on Monday?

Charles Taylor might be sitting in a prison cell in The Hague, but the Special Court does not have the power to compel Taylor to appear in court. Under the rules which govern the conduct of the Court’s operations — the Special Court’s Rules of Procedure and Evidence (RPE) — Taylor can waive his right to attend trial. Rule 60 says:

(A) An accused may not be tried in his absence, unless:

1. the accused has made his initial appearance, has been afforded the right to appear at his own trial, but refuses so to do; or
2. the accused, having made his initial appearance, is at large and refuses to appear in court.

Given Taylor had previously appeared before the court to plead not guilty to the charges against him – and had also attended status and pre-trial conferences (wearing his sunglasses at the last one in May 2007) — Judge Sebutinde recognized on Monday that Taylor had waived his right to appear.

In the past, the Special Court has ruled that “in the interests of justice trial proceedings will not be interrupted by accused persons who refuse to attend court.” We’ll talk more about this below.

Why did Taylor’s lawyer walk out, and why did the trial continue? 

Karim Khan’s decision to walk out of the courtroom last Monday directly violated a court order issued by Judge Sebutinde to stay and represent Taylor for the day. When faced with a choice between his duty to the court, and the duty to his client, Khan opted for Taylor – even with the knowledge that he might be slapped with a contempt charge. The trial could continue because the Special Court’s rules allow for the judges to ask another lawyer (apart from Taylor’s assigned one, or “counsel of his choice”) to represent Taylor in his absence, given he’d waived the right to appear.

The atmosphere inside the courtroom, as Khan and Judge Sebutinde argued over whether Khan was required to stay, was tense during a high-drama day. Khan argued that since Taylor had sacked him, he could not continue to act as Taylor’s counsel. He referred to two articles in the code of conduct that governed his work as a defense counsel.

Article 18(A)(i) of the Code of Professional Conduct for Counsel with the Right of Audience Before the Special Court for Sierra Leone (May 2006) says that a “Defense Counsel shall not represent a client if Defense Counsel’s representation is terminated by the client.”

Khan recognized the caveat to this – Article 18(D) of the same code. This Article says that “if Defense Counsel’s representation is to be terminated or withdrawn, unless otherwise ordered by a Chamber, such termination or withdrawal will not take effect until a replacement Defense Counsel is engaged by the client or assigned by the Principal Defender, or the client has notified the Registrar in writing of his intention to conduct his own defense.”

Taylor, it seemed, had covered all the bases. Khan told the court that, in a letter written by Taylor which had been given to the Acting Registrar, Herman von Hebel, earlier that morning, Taylor planned to represent himself.

Judge Sebutinde wasn’t convinced. She didn’t think the letter had been properly filed and the Acting Registrar hadn’t had a chance to read it. After scolding Khan to put on his headphones so he could hear her, she said that a court order requiring Khan, as assigned counsel, to stay to represent Taylor for the day overrode his obligations under the Code of Conduct. With exasperation in her voice, Judge Sebutinde said: “Mr. Khan. I don’t know how to say this so you understand. You are mandated to represent the accused for today.”

She pointed to Rule 45(D) of the Court’s RPE, which she drew on to underpin her order to override “any attempt by you to stand down, or Mr. Taylor’s efforts to disable you.” This rule says that:

“Any request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings.”

Khan disagreed, saying his duty to Taylor was a “non-negotiable primary duty” and wanted to respond to the Judge’s order requiring him to stay for the day to represent Taylor despite being terminated by his client. Judge Sebutinde’s calm voice oddly highlighted the growing tension between the bench and the defense counsel. “You are verging on contempt as you keep arguing after we have handed down an order….If you will take your seat, sanity will return to this court,” she said. Khan responded that he thought sanity had never left the court, he refused to sit down (despite an interjection by Judge Richard Lussick, reinforcing his colleague’s instructions to sit down), and once the Prosecutor, Steve Rapp, started his opening statement, Khan collected his books and notes, bowed to the bench, apologized for the disruption, and walked out.

Judge Sebutinde didn’t follow through with her threat to level contempt charges on Khan. Under Rule 77(A)(iii) of the SCSL’s RPE, “The Special Court, in the exercise of its inherent power, may punish for contempt any person who knowingly and willfully interferes with its administration of justice, including any person who: (iii) without just excuse fails to comply with an order to attend before, or produce documents before, a Chamber.”

It is not clear why Judge Sebutinde did not carry through with the contempt charge. She must have, on reflection, given Khan the benefit of a “just excuse”.

After Khan left the courtroom, Judge Sebutinde assigned Charles Jalloh, a representative of the SCSL’s Principal Defender’s office, to represent Taylor for the day. Given Taylor had waived his right to appear in court, the trial could continue because under Rule 60(B), a judge or the trial chamber has the power to direct counsel (and the language of the rule does not necessarily require the judge to direct the counsel of the accused’s choice) to represent Taylor in his absence, and to continue the trial.

The Special Court’s RPE Rule 60(B) – which follows immediately after the clause we noted earlier referring to non-appearance – says that if an accused refuses to appear:

“…the accused may be represented by counsel of his choice, or as directed by a Judge or Trial Chamber. The matter may be permitted to proceed if the Judge or Trial Chamber is satisfied that the accused has, expressly or impliedly, waived his right to be present.”

So last Monday, even though Taylor did not show up, and his lawyer walked out, the Special Court had the power to direct the duty counsel to represent Taylor to ensure that the trial could continue without undue delay.

Has the Special Court dealt with situations like this before?

Yes. In fact, what happened Monday was almost identical to what happened three years ago when Sierra Leone’s former Interior Minister, former Deputy Defense Minister and leader of the Civil Defense Force (CDF), Sam Hinga Norman, refused to appear on the opening day of his own trial (June 3, 2004).

In that case, Hinga Norman (who died in custody in February this year) failed to come back into court after the Prosecutor’s opening statement. During lunch, Hinga Norman gave a letter to the court which was addressed to the Principal Defender. It said:

“this is to inform you that I have as indicated this morning before the start of the Trial in the case against me, finally decided to:

1. APPEAR FOR MYSELF

2. REPRESENT MYSELF

3. DEFEND MYSELF

Effective today (3/6/04) and to state further, that any representation by any Counsel on my behalf does not repeat not carry my consent nor have it.”

The court then had to rule on Hinga Norman’s application to represent himself in court. When the court handed down its decision on June 8, 2004, it referred to Article 17 of the Special Court’s Statute, and Rule 26 bis of the Court’s RPE.

Article 17 provides for an accused to “defend him or herself in person or through legal assistance”. The Trial Chamber held that this right to self-represent was not absolute, but a qualified one which must only be  exercised with the assistance of counsel. It drew on Article 17(4)(d) to back up this reasoning (which states that the accused has the right to have “legal assistance assigned to him or her, in any case where the interests of justice so require”). Given Hinga Norman had been in detention for 15 months, the Trial Chamber reasoned that the “interests of justice” required that Hinga Norman be tried “without undue delay” (a right accorded to him under Article 17(4)(c)).

The Chamber noted that the trial had to be fair and expeditious (under the RPE’s Rule 26 bis), and though this required “full respect for the rights of the accused”, those rights did not include an absolute right to self-representation.

The judges, in that case, said that:

“As a matter of law, it is our duty as a chamber at all times, to protect the integrity of the proceedings before us and to ensure that the administration of justice is not brought into disrepute. This we can achieve by ensuring, amongst other measures, that persons who are accused and indicted for serious matters such as these, are properly represented by counsel as this safeguard is very vital in ensuring that the overall interests of justice are observed and the rule of law upheld.”

The Chamber ordered that self-representation by Hinga Norman was allowed, but it could “only be exercised with the assistance of counsel to be assigned to the trial and in whatever capacity they are assigned or designated, stand-by or otherwise.”

In a decision two weeks later, on June 23, 2004, the Trial Chamber also ruled on the additional resources needed by Hinga Norman to prepare his defense. It decided that extra resources should be given and held that:

• Four stand-by counsel to assist Hinga Norman was sufficient legal assistance.
• The Principal Defender’s Office should provide Hinga Norman with any investigative resources required for his defense.
• A computer, printer, stationery desk, stationery and phone be set up in Hinga Norman’s cell.

This was not the end of the matter, though. A few months later, Hinga Norman again refused to show up at trial. One of Hinga Norman’s stand-by counsel read out a letter to the court on September 20, 2004, which set out Hinga Norman’s decision not to appear until certain legal conditions had been met, including among them the removal of a protective order so that witnesses who were not sexually assaulted could testify in public.

The court was not amused. In a ruling handed down by Judge Pierre Boutet on October 1, 2004, it stated that:

“The Trial Chamber considers that any deliberate absence from the trial proceedings will certainly undermine the integrity of the trial and will certainly not be in the interests of justice. The Trial Chamber considers that the exercise of the right to self-representation should not become an obstacle to the achievement of a fair trial. As stated by the trial chamber of the ICTY in the Milosevic case: “The right to represent oneself must therefore yield when it is necessary to ensure the trial is fair.”

As a result, the court revoked Hinga Norman’s right to self representation, continued the trial in Hinga Norman’s absence, and ordered that he be represented by court-appointed counsel.

Similarities between the Hinga Norman and Taylor trial strategies are striking so far. Taylor’s letter to the court, parts of which Karim Khan read out to the court on Monday, was similar in effect to Hinga Norman’s. It effectively combined elements of both refusals to appear by Hinga Norman. The letter that was partially read out by Khan in court:

(1) terminated Khan as counsel;

(2) said that Taylor would represent himself, and stated that

(3) Taylor could not continue to participate in the trial until he had adequate facilities to prepare a defense to the case against him. (Under Article 17(4)(b), one of the rights afforded to accused before the court is “adequate time and facilities for the preparation of his or her defense”).

In effect, Taylor had combined Hinga Norman’s initial decision to fire his lawyers and self-represent, and also the second decision not to participate until certain legal conditions were met (in Taylor’s case, the provision of adequate facilities to prepare his defense; and the opportunity to speak in person to the Principal Defender about a confidential issue). The main difference between the two cases is in the content of the legal demands made by each defendant. Taylor’s argument went directly to the fair trial rights to which he is explicitly entitled under the SCSL Statute. Hinga Norman’s focussed on prosecutorial decisions and protective measures designed to safeguard the identities of witnesses.

On Monday, the Court validated Taylor’s arguments that his request to see the Principal Defender in person was a “reasonable one” and that adequate facilities should be assured for the defense. These issues, according to Judge Sebutinde, went to the ability of the court to ensure Taylor’s fair trial rights were respected. She ordered that the Special Court’s Registry immediately organize the Principal Defender’s travel to The Hague to speak with Taylor, and that “without delay” adequate facilities must be provided to Taylor.

When is the next day in court for the Taylor trial?

The Taylor trial is set to resume on June 25 at 9am (Hague time). We’ll be blogging directly from The Hague then.

Watch this space…

We’ll be posting more tomorrow about the presentation to the Security Council by SCSL’s Prosecutor, Stephen Rapp, and President, George Gelaga King.