Does Refusal to Accept the Filing of Charles Taylor's Defense Closing Brief Serve the Interests of Justice?

JURIST Guest Columnist Moira A. Imong, a research assistant at the Arcadia Center for East African Studies in Tanzania says that when the Trial Chamber of the Special Court for Sierra Leone refused to accept the late filing of the Charles Taylor's closing brief, it violated the right of the defendant to be heard....
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On February 11, 2011, the Trial Chamber of the Special Court for Sierra Leone deferred closing arguments in the trial of Charles Taylor.

This Court was established in 2002 through an agreement between the United Nations and the Government of Sierra Leone, following up on Security Council Resolution 1315 of 2000. The Court has jurisdiction to try those charged with serious violations of international humanitarian law and the laws of Sierra Leone. These violation were allegedly committed in the territory of Sierra Leone since November 30, 1996.

Charles Taylor, then President of Liberia, was indicted on March 7, 2003. On December 4, 2003, Interpol issued an arrest warrant for Charles Taylor. But it was only on March 29, 2006 that Charles Taylor was nabbed by the Nigerian authorities and flown to Monrovia, the capital of Liberia, where he was arrested by the United Nations Mission for Liberia and handed to the Court. He is charged with 11 counts of war crimes and crimes against humanity and has denied them all.

On October 22, 2010, the Trial Chamber ordered the parties to file their closing briefs by January 14, 2011. But, on January 10, 2011, the Defense requested a stay of proceedings pending the resolution of various outstanding motions before the Court. Those pending motions involved recalling witnesses, admission of evidence, and disclosure. These outstanding motions are obviously important because once resolved, they will contribute to the Defense's ability to present a conclusive and well-reasoned final brief. In other words, not knowing the judicial statement on those pending requests constitutes an impediment to a final analysis of one's case.

If the motion to stay proceedings were granted, it would have amended the October 22, 2010 Order, and a new deadline would have been set for the filing of the closing briefs. However, the Defense's request for stay of proceedings was dismissed on January 12, 2011 by a majority, Justice Sebutinde being absent. As a consequence, on January 14, 2011, the Defense filed a motion for a stay of proceedings pending resolution of outstanding issues. On January 27, 2011, the Prosecution filed a response to the application submitting that it should be dismissed for failure to establish, "exceptional circumstances."

The Prosecution further submitted that allowing the application condoned dilatory tactics and, "creates an inequity contrary to the interest of justice and expeditious conduct of proceedings." On February 2, 2011, the Trial Chamber dismissed the motion on the grounds that the Defense had not satisfied the conjunctive conditions of exceptional circumstances and irreparable prejudice required by the Court's Rule of Procedure and Evidence 73(B).

Additionally, on January 20, 2011, the Trial Chamber held a status conference to allow the Defense to explain why they had failed to file their final trial brief and why they refused to accept the Prosecution's final trial brief.

First, the Defense explained they failed to file a closing brief because at the time of the order, they were unaware of facts that were crucial to the case and were the subject of the pending motions, such as the leaked cables from the US Embassy in Liberia.

Second, the Defense explained that it rejected the Prosecution's final brief because they did not want to be accused of having tailored its final brief to the substance of the prosecution's submissions. At the end of the status conference, the Judges issued a majority ruling holding that the submissions were not sufficient to cause the Trial Chamber to review or amend the original order rendered on October 22, 2010. Justice Sebutinde dissented, reasoning that it was unfair to ask the Defendant to wrap up his Defense when there were outstanding issues that could have an impact on the Defense's case. Surprisingly, she then suggested that the Defense should file a piecemeal final brief.

On February 3, 2011, the Defense filed its Final Trial Brief, but the Trial Chamber refused to accept the late filling. As a result, On 8 February 2011 the Defense filed a motion seeking leave to appeal the decision of the Trial Chamber. The next day, counsel for the Defense and the accused left the Trial Chamber in reaction to the Chamber's refusal of their late filing. On February 11, 2011, the Trial Chamber granted leave to the Defense to file an appeal against the decision rejecting the Defense Final Trial Brief, with Justice Richard Lussick dissenting. The trial was therefore adjourned until the Appeals Chamber decides on the Defense motion.

The final or closing trial brief is fundamental in a criminal trial. The brief summarizes the entire proceedings and at the same time it highlights the strengths of the party's case. But the final trial brief does not only benefit the parties, it also aids the Court when writing the Judgment because the trial briefs explain the arguments of the parties and their assessment of the evidence. In the particular instance of the Defense, the final trial brief responds to the Prosecution arguments introduced during the trial or in the Prosecution closing brief. Furthermore, the final brief is an important tool for the accused to exercise their right be heard. An accused person has an inalienable right to a fair hearing and the right to be heard is an essential component of the fairness of the proceedings. As a result, the final trial brief is critical and must be in the case file.

In the present case, expediency, rather than fairness, stands out. The Trial Chamber stipulated an early deadline for filling of final briefs which the Defense failed to meet. This failure has been interpreted as a "blatant breach of a Court Order." But one still wonders whether such a breach justifies the rejection of the Defendant's final brief. In her dissenting opinion, Justice Sebutinde points out that the interest of justice and the respect for the fair trial rights of the accused compelled her to respectfully dissent from the view held by the majority. In addition, she states that the Rules of Procedure of the Court stipulate that a party shall file a final trial brief not later than five days prior to the date set for the presentation of that party's closing argument. It was her opinion that the late filing of the Defendant's final trial brief was still within the ambit of the rules of procedure of the Court because the breach of the Court order is only a technical issue. Even though procedural rules are important, they not outweigh the service of justice and the requirement of a fair trial. Justice cannot fail simply because of the violation of a procedural order. Moreover, refusing the Defense final trial brief, besides being unfair to the accused, also prolongs the trial proceedings because now the trial has been postponed. In consideration of the gravity of the charges against the accused, the Trial Chamber should have been more concerned with the cause of the Defense's delay, rather than with the delay itself.

Precedents show that this very Trial Chamber accepted a late filing in another proceeding where it was in the interest of justice. In that case, the filing had been only a day late, as compared to 20 days in the present case. Or could it be that the Defense--unlike in the present case--had filed part of its motions in time?

The decision of the Trial Chamber is at odds with its own precedents and it would have been in the interest of justice to accept the Defendant's final brief. In conclusion one hopes that the Appeals Chamber will exercise some leniency and accept the Defendant's late filing in order to guarantee a fair hearing for the accused. Accepting the late filing will also maintain uniformity and consistency of the law where the precedent is concerned.

Moira A. Imong is a Research Assistant at the Arcadia Center for East African Studies in Tanzania, a facility established by the College of Global Studies of Arcadia University.

Suggested citation: Moira A. Imong, Does Refusal to Accept the Filing of Charles Taylor's Defense Closing Brief Serve the Interests of Justice? , JURIST - Forum,
March 10, 2011, http://jurist.org/forum/2011/03/dnp-does-refusal-to-accept-the-filling-of-the-defense-closing-brief-serve-the-interest-of-justice.php.

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