Thursday, October 21, 2010

Judges Order Prosecutors to Disclose Exculpatory Material and Payments Suggesting That AFRC Leader Johnny Paul Koroma Was Not Killed By Charles Taylor

Source: Charles Taylor Trial

by Alpha Sesay

On Wednesday, October 20, 2010, the Special Court for Sierra Leone judges in The Hague ordered prosecutors to disclose exculpatory evidence in their possession that suggests Charles Taylor did not order the execution of Johnny Paul Koroma, the former leader of Sierra Leone’s military junta, the Armed Forces Revolutionary Council (AFRC).

The decision stems out of the “Defense Motion for Disclosure of Exculpatory Information Relating to DCT-032” that was filed by Mr. Taylor’s defense lawyers on September 24, 2010.

In the motion, defense lawyers alleged that DCT-032, a defense witness for Mr. Taylor, was previously a potential prosecution witness who spoke extensively to prosecution investigators about the alleged death of Mr. Koroma. The witness, who later became a defense witness informed defense lawyers about the information he gave to prosecutors regarding the alleged death of Mr. Koroma, payments made to him by prosecutors for him to cooperate with their investigators, and a letter that was written to him by the former Chief Prosecutor of the Special Court for Sierra Leone, Stephen Rapp, indemnifying him of any criminal prosecutions for his cooperation. These actions by prosecutors, defense lawyers said, were meant to induce the witness to give false testimony against Mr. Taylor. The witness himself admitted to defense lawyers that he was “making up the story in order to get money from the Prosecution.”

During the presentation of the prosecution’s case, it was alleged that Mr. Taylor ordered the execution of several persons who had knowledge of his dealings with Sierra Leonean rebel forces. One such person who was allegedly executed on Mr. Taylor’s orders was AFRC leader Mr. Koroma. Witnesses who testified about the execution of Mr. Koroma on Mr. Taylor’s orders included Mr. Taylor’s former Vice President Moses Blah, former member of Mr. Taylor’s National Patriotic Front of Liberia (NPFL) rebel group Joseph Zig Zag Marzah, and a protected witness, TFI-375. Though these witnesses did not claim to be present when Mr. Koroma was executed, their evidence implicated several other persons who were subordinates to Mr. Taylor. One subordinate mentioned as being among those who carried out the murder of Mr. Koroma in Foya, Liberia, was DCT-032, the witness who is the subject of the defense motion.

According to the defense motion, when prosecutors were investigating the alleged murder of Mr. Koroma in 2008, they contacted DCT-032, who provided them with information regarding the death of the former AFRC leader and his burial site somewhere in Lofa County, Liberia. Following the disclosure of such information, prosecutors carried out exhumations at two burial sites which were identified by DCT-032. DNA tests were carried out on the remains that were exhumed, but they did not match Mr. Koroma’s DNA.

In their motion, defense lawyers argued that based on the information provided to prosecutors by DCT-032, Mr. Koroma may well be still alive. They argued further that based on information provided to them by DCT-032, the payments that were made to him and the indemnity letter that was written to him by prosecutors were meant to induce him to provide false testimony against Mr. Taylor.

The details of the information provided to prosecutors by DCT-032, the results of the DNA tests, the payments, and the indemnity letter provided to the witness by prosecutors “suggest the innocence of the Accused or mitigate his guilt or may affect the credibility of the prosecution evidence,” defense lawyers said. Such information must have been disclosed by the prosecution to the defense according to the Court’s Rules of Procedure and Evidence, defense lawyers argued. They therefore asked the judges to now order the prosecution to make the necessary disclosures and provide an explanation as to why such material details were never disclosed to the defense.

In response, prosecutors asked the judges to dismiss the defense motion as it was “unfounded and [that] the information requested is not exculpatory.” Prosecutors further argued in their response that while they had honored all their disclosure obligations under the court’s rules, such disclosure obligations do not require them to operate an “open door policy.” Prosecutors also said that DCT-032 was never listed as a prosecution witness. He was only used as a source, and there is no obligation that payments or promises made to sources must be disclosed, prosecutors argued.

On October 20, 2010, the judges dismissed the prosecution’s arguments and ruled in favor of the defense.

According to the judges, the fact that DCT-032’s name was mentioned as a key player in the alleged execution of Mr. Koroma and the subsequent information provided by him to prosecutors about his background, his role in the Sierra Leone and Liberian conflicts, and his participation in the alleged murder of Mr. Koroma, including the latter’s burial site (whether true or false), proves that he was a potential prosecution witness and not merely a source. The judges further said that based on the payments that were made to the witness and the letter that was written by the former Chief Prosecutor assuring the witness that he would not be prosecuted, it is clear that the prosecution intended to seek DCT-032’s cooperation, including his testimony. These actions by prosecutors, the judges said, were not done because DCT-032 was a source, but rather because he was a potential prosecution witness.

“The Trial Chamber opines that the Prosecution payments were not used to buy information from a source, but rather were given to a potential witness for his own benefit,” the judges said in their decision.

“Accordingly, the Trial Chamber holds that prior to his listing as a Defense witness, Witness DCT-032 was for all intents and purposes, a potential Prosecution witness, notwithstanding that he was never listed by the Prosecution as such.”

The judges also agreed with defense lawyers that “the fact that the Prosecution interviewed this alleged murderer and that he led them to a grave or grave sites that later turned out not to be that of Johnny Paul Koroma is relevant to the issue of whether Johnny Paul Koroma is dead or alive, and may affect the credibility of the Prosecution evidence.”

The judges said the fact also that DCT-032 was unable to provide the prosecution with adequate information regarding the death of Mr. Koroma “despite being promised 5000 United States Dollars and indemnity against criminal prosecution, is potentially exculpatory in that it may affect the credibility of the Prosecution evidence” alleging his (DCT-032) involvement in the alleged killing of Mr. Koroma.

“This information with respect to the Prosecution investigation should therefore also have been disclosed to the defense,” the judges said.

The judges concluded their decision by ordering the prosecution to disclose:

1. Full details of all investigations carried out by the Prosecution into the alleged death of Mr. Koroma including results of DNA tests carried out on corpses exhumed from graves identified by DCT-032.

2. Full details of all monies that were given to DCT-032.

3. An original duplicate copy of the letter of indemnity against criminal prosecution that was written to the witness by former Chief Prosecutor Stephen Rapp.

In another motion, defense lawyers have asked the judges to order the setting up of an investigation into the conduct of the Office of the Prosecutor during the gathering of evidence against Mr. Taylor. Defense lawyers allege in their motion that prosecution investigators bribed witnesses to testify against Mr. Taylor and that in some cases, potential witnesses were intimated and physically assaulted to elicit information from them against Mr. Taylor. A decision on this motion is expected soon.

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