The Taylor Defense team formally rested its case on November 12, 2010. The Trial Chamber will not sit again until closing arguments commence in February 2011. During this reporting period, the last Defense witness was called and the Chamber ruled on several Defense motions. The Chamber denied a Defense motion requesting an investigation of the Office of the Prosecutor on allegations of contempt of court, but granted the Defense leave to appeal. Also, after ordering the Prosecution to disclose exculpatory evidence concerning the alleged death of AFRC leader Johnny Paul Koroma, the Court denied a Defense motion to introduce that evidence into the record. Leave to appeal this decision was also granted. These and other legal issues are discussed below, along with a discussion of the testimony from the final witness to testify in the case against Charles Taylor.
The sole witness who testified during this reporting period was: Samuel Flomo Kolleh (DCT-102)
This report summarizes witness testimony heard during November 2010 and identifies important issues that have arisen at trial. As with previous WCSC monitoring reports, it is available online at http://socrates.berkeley.edu/~warcrime/SL_Monitoring_Reports.htm. This is the final periodic trial report for the Taylor trial and for the Special Court for Sierra Leone Trial Monitoring Program. Following this report, the WCSC expects to publish one more thematic report on the Taylor trial and one final retrospective analysis of the Special Court's work from beginning to end.
2. Defense Themes and Strategies
This month, the Defense called its final witness and raised a few remaining legal issues with the Court. Witness DCT-102 testified about training with the RUF in Liberia prior to the RUF's first incursion into Sierra Leone. The Witness also testified about trading diamonds for weapons, but denied that Taylor was involved. Mr. Kolleh further told the Court that he was intimidated and bribed by the Prosecution during interviews in 2003. This testimony supported Defense contentions that the Prosecution should be investigated for contempt of court for improperly treating witnesses and potential witnesses. Although the Defense has formally rested its case, two outstanding appeals will be decided by the Appeals Chamber in early 2011. It is unclear how Appeals Chamber decisions on these motions may affect the Defense's final trial brief, which will be finalized in January 2011, or its closing oral arguments, to be heard in February 2011.
3. Prosecution Themes and Strategies
The Prosecution sought to impeach DCT-102's testimony by cross-examining him on prior inconsistent statements and inconsistencies between his testimony and the testimony of other Defense and Prosecution witnesses. The Prosecution frequently suggested that the Witness was a liar, and focused on the Witness' admission that he had lied about his name and address to the SCSL Prosecution and the Sierra Leonean Truth and Reconciliation Commission. Kolleh claimed that he had lied because he was afraid of being arrested by the SCSL. When asked about specific crimes committed by the RUF, Kolleh denied having witnessed such crimes, often saying that he either was in another location or otherwise had no knowledge of such crimes. For example, he admitted being in the area where the RUF's "Operation Stop Elections" was at its fiercest, and testified that he was a senior officer of the RUF at the time, but denied knowing about the amputation of limbs for which the operation was famous. Like the Defense, the Prosecution must also submit its final trial brief in January 2011, and will deliver oral arguments in February 2011.
4. Legal and Procedural Issues
This section addresses the legal issues that arose as the trial phase concluded for this case. The Trial Chamber ruled upon motions concerning an investigation into allegations of contempt of Court levied against the Prosecution; exculpatory information related to Defense witness DCT-032; evidence about Johnny Paul Koroma's death; and objections to entering documentary evidence into the record based on a lack of foundation.
Due to various personal circumstances, the Court often sat with three, instead of the usual four judges throughout the testimony of the final Defense witness, DCT-102. DCT-102 commenced his testimony on November 1, 2010 in the absence of Justice Lussick. On November 2, the Court called a recess because two of the Judges would be absent due to "unavoidable personal circumstances." Justice Doherty was absent during the following three days of trial (November 3 - 5, 2010) and from November 8 - 9, 2010, Justice Lussick was presiding in the absence of Justice Sebutinde.
a. Defense Motion Requesting Investigation into Contempt of Court by the OTP and its Investigators
In September, the Defense requested an independent investigation into the Office of the Prosecutor and its investigators. The Defense alleged that the OTP had committed an abuse of process in its investigations, and had brought the administration of justice into disrepute. The Defense requested that the OTP be investigated for contempt of court under Rule 77 of the Rules of Procedure and Evidence. The Defense argued that the alleged misconduct raised doubts about all of the Prosecution's evidence and impinged on Taylor's rights to a fair trial. The Prosecution objected to the motion, arguing that the motion was untimely, failed to establish that there was reason to believe the Prosecution or members of the OTP had committed any of the alleged offences and was an attempt to delay the proceedings. It also suggested that the allegations were based on statements from individuals and witnesses who lack credibility.
i. Trial Chamber Decision
On October 22, 2010, the Trial Chamber issued an oral decision dismissing the motion in its entirety. The Court subsequently published a written reasoned judgment on November 11, 2010. The written decision acknowledged that the standard of proof for determining whether to order an independent investigation is not that of a prima facie case, but a lower standard of a "reason to believe" an offense may have been committed. However, the Court concluded that, in order to provide a "reason to believe" an offense had been committed, the allegation of contempt must be credible. Furthermore, the Court noted that any alleged misconduct should be brought to the attention of the Court without undue delay.
In spite of the Court's recitation of the standards for determining motions of contempt, the motion was denied on technical grounds. The Trial Chamber denied the motion on two grounds: first, that it was untimely, and second, that it did not fall within the ambit of Rule 77 of the RPE. The Trial Chamber noted that its finding on those two issues was sufficient to dispose of the motion. However, given the seriousness of the allegations, the Court considered that it was in the interests of justice to review the individual allegations of misconduct in the Defense motion on the merits.
Regarding the timeliness of the motion, the Chamber noted SCSL jurisprudence requiring parties to raise allegations of misconduct "without undue delay." The Court noted that some Defense allegations involved incidents that occurred between two and eight years ago. The Defense had argued that although these incidents occurred several years ago, the injury to Taylor's fair trial rights resulted from the cumulative effect of ongoing OTP misconduct. The Trial Chamber found these arguments "erroneous and fundamentally flawed." The Court reasoned that contempt of court is a criminal offense and thus an incident must constitute an offense at the time it is committed--not later, after other incidents have occurred. According to this rationale, the Defense should have brought each separate incident of misconduct to the attention of the Court within a reasonable time after it was committed. Because the incidents happened so long ago, the Court found that the Defense had failed to act with due diligence in bringing the allegations to the attention of the Court in a timely manner. The Court stated that it could have denied the motion for this reason alone.