Day Seven

NOTE: If you're just joining me, you'll need to scroll down to read the beginnings of this story for it to make any sense.

Wednesday, October 18, 2006

I spent the entire morning with Subject A’s defense counsel and the prosecutor. The prosecutor told me to arrive at 0700 so we could go over and conduct the interview. He told me that it was the law that I be present. I had no idea where he was getting that "law" from but decided I wanted to go anyway. Well we (my terp and I) showed up at 0700 but no one was there. I guess the officers take a bus to get to base and it hadn't arrived yet, so we waited. The defense attorney showed up first and after a few minutes, the prosecutor arrived.

The defense attorney proceeded to tell me all the problems of his case. He kept pointing to the prosecutor telling me about all the rules that had been broken and why this was a bad case. He then proceeded to tell me his entire defense; that Subject A was only disciplining the soldier for being disrespectful, that he did not hit him but simply pushed him in the back, that the doctor at the clinic had not followed the proper reporting procedures, etc. I debated about telling him to be quiet, since he was giving away his entire defense but I didn't. I decided that I didn't have an ethical obligation to him, just a mentoring relationship. Did I rationalize that decision? Probably. I will certainly talk with him in private about not giving away his defense but I didn't do it then. The prosecutor was taking advantage of this gold mine of information. The entire time he was busily scribbling in his notebook everything that the prosecutor was saying.

We talked for almost an hour, maybe a little bit longer. The whole time he was telling me the problems with the prosecutors case. He said that he and his client did not like the witnesses the prosecutor had interviewed. I told him that I was not surprised, that the defense attorney and his client never like the witnesses the prosecution presents. He said that the witnesses were friends of the victim or had been told what to say. I thought to myself that that’s exactly the kind of witnesses Subject A will bring to court, but refrained from saying anything. I tried to tell him that he would be able to cross-examine the witnesses and exploit those weaknesses. He just looked at me with a blank look on his face. He then told me that the there were 48 people there and that the prosecutor should have interviewed a larger number of people. I explained that at some point it becomes futile to interview everyone and that I really didn't see a problem with the prosecutor only interviewing a sampling of witnesses. Again, I told him that was something he could explain or argue to the court. He wasn't getting it.

I tried to explain the nature of the adversarial system. For so long, they have been used to prosecuting soldiers who had confessed. I told them that this was the first time that they would be presented with a case where the defendant denied any wrongdoing. I told them that they were both going to have to work very hard. Again, I explained that they were not going to like the evidence the other side was going to present. I told them that they were going to have to discredit the others case and that it would be up to them to persuade the judges to believe their version of what happened. I told them that this was a groundbreaking case for the ANA military justice system. They just weren’t getting it.

The defense attorney then asked me why his client was in pre-trial confinement. I explained that he was there because he was a dangerous and violent man. I told him of the rumors that I had heard. Because I wanted to appear that I was fair, I explained that sometimes rumors are based on lies so I try to take a rumor with a grain of salt. I then told him that at some point, a rumor has some truth to it. I told him that I’ve had over a dozen different people, ANA and Americans alike, tell me that he is a dangerous man and each one had a story to back up that rumor/opinion. I told him that I believed that his client was a violent man and a danger to the witnesses against him. Again, he didn't seem to grasp that concept.

At one point, the defense attorney stepped away for a few minutes. I then said to the prosecutor that he had just heard the defense’s entire case. He got this big grin on his face and made the “cha-ching” gesture with his arm. He then told me that Subject A had said that because he had been dishonored by being placed in pre-trial confinement, that he was going to commit suicide. I made the comment that that would make all our jobs so much easier. I don’t think he caught the humor in that statement.

We finally went to see Subject A. When you first meet him, he seems pleasant enough. Steve describes him as the classic movie bad guy. He’s just attractive enough to be a leading-man bad guy and just evil enough at the same time. For over an hour he told me that he had been dishonored, that he had been shamed, that he was being held illegally. He told me he did not like the witnesses the prosecutor had interviewed. He did not like this and that, he did not like what the prosecutor was doing. I sat there calmly listening to him. I knew there was no point in arguing with him. When he was finally done, I tried to explain the adversarial system to him. I explained that his attorney was doing a good job but that he would have to prove his innocence in court by cross-examining the prosecutors witnesses and presenting his own evidence. I explained that the court would have to decide if he was going to remain in pretrial confinement, not me. I tried to explain a lot of other things but of course he wasn't listening.

We then adjourned back to the prosecutor's office where we continued our legal discussion of the procedures of the case. We "argued" for another 90 minutes or so on a variety of topics, the biggest one being Subject A’s continued pre-trial confinement. The defense attorney just wasn't getting it. No matter how many times I tried to explain the basis for my opinion, he kept saying he was a general and needed to be respected and allowed to go home. We also talked about the prosecutor's responsibilities in regards to completing the investigation and filing the case. We then finished up talking about why the defense attorney was not appointed until several days after the prosecutor had begun his investigation. This was a topic that the defense attorney and I had discussed before. In the past, defense counsel has not been appointed right away. I explained that initially, Subject A wanted to represent himself and so that's why the defense attorney was not appointed until as late as he was. I don’t think he grasped that issue either as he kept arguing that the rules had been violated because he had not been appointed until so late in the game.

I was glad to see the other prosecutor arguing on our side. As I said on a previous posting, Subject A is Tajik. He beats only Pashtun’s. Big surprise, but he selected the Tajik defense attorney to represent him. The other prosecutor is also Tajik and he initially was on Subject A’s side. It made things somewhat uncomfortable when I talked with him about this case. But, this morning, he set aside his personal tribal bias and was “on our side” so to speak.

It was such an interesting morning. It was intellectually stimulating discussing these issues. It was interesting to try and explain the adversarial process to them. As I said, for so long, they have had defendants who have simply confessed to the crime and so the trial has just been an issue of how much punishment to give. I still don't think they grasp the significance of actually having to "try" a case. It will be very interesting to watch and see what happens.

So that’s the latest in this saga.