Tagged: prosecutions

The ICC Reports on Situation in Libya

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On November 12, 2014, ICC Prosecutor Fatou Bensouda presented the U.N. Security Council with a report on “the deteriorating situation” in Libya, calling the Council’s attention to several disturbing matters that the OTP is confronting in its work in Libya.

The Security Council referred the situation in Libya to the ICC in 2011, pursuant to the authority accorded to it by Article 13(b) of the Rome Statute and by Chapter VII of the U.N. Charter. This was the second time the Council referred a situation of violent internal conflict to the ICC; the first time was in 2005, with respect to the violence in Darfur, Sudan. The ICC Prosecutor has been pursuing cases against several suspects in both of these situations.

In both, the ICC has encountered severe difficulties in carrying out its responsibilities. With respect to the Darfur situation, four of the suspects subject to ICC arrest warrants remain at large. As noted here, earlier this year the Prosecutor asked the Council for further assistance in dealing with the failure of several countries to execute the ICC arrest warrant for Sudan President Omar al-Bashir. As noted here, in April 2014 the ICC Pre-Trial Chamber issued a rebuke to the Democratic Republic of the Congo for failing to arrest al-Bashir when the Chamber, having advance notice of al-Bashir’s visit to the DRC, issued a request to the DRC for his arrest. The DRC is a State Party to the Rome Statute; Article 86 of the Statute requires that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

With respect to the Libya situation, Prosecutor Bensouda advised that despite elections in Libya in June 2014, political instability is increasing as two governments vie for legitimacy. She also noted that there have been several assassinations and numerous threats made against human rights workers, judges, prosecutors, and others. She reported that the deteriorating security situation in the country is making it very difficult for her Office to pursue its work, including, among other matters, the Office’s ability to investigate “new instances of mass crimes allegedly committed by the rebel forces.”

The Prosecutor expressed her Office’s “great concern” regarding “the continued failure of the Government of Libya to surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court.” On June 27, 2011, the ICC issued an arrest warrant for Saif Al-Islam Gaddafi on two counts of crimes against humanity but he remains at large. Regarding Abdullah Al-Senussi, whom the ICC previously sought for prosecution, the Prosecutor stated that because of the on-going violence in Libya that may endanger the possibility of a fair trial for Al-Senussi, she may apply for review of decisions by ICC courts deferring to Libya’s prosecution of him.

Prosecutor Bensouda called upon Libya for cooperation, and she stated that “the international community could be more proactive in exploring solutions in order to tangibly help restore stability and strengthen accountability for Rome Statute crimes in Libya.”

The Prosecutor’s October 23 and November 12 statements to the Security Council suggest that ICC prosecutions of cases following a Security Council referral are encountering difficulties that go beyond those encountered by prosecutors authorized to prosecute cases in the ad hoc tribunals established through Security Council resolutions prior to the Rome Statute’s entry into force in 2002. If the ICC is to be able to carry out its responsibilities – especially with regard to Security Council referrals – the Prosecutor seems to be correct that additional support for the ICC will be needed from the Security Council, from States affected, and from the international community in general.

Crime-less Exonerations

The National Registry of Exonerations (“Registry”) marked 2013 as a record setting year for exonerations. As of August 2014, there were 91 known exonerations that occurred in 2013, bringing the total number to 1,427. According to the Registry, exonerations are only counted when the defendant is

declared to be factually innocent by a government official or agency with the authority to make that declaration;” or the defendant is “relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action.

Notably, the Registry continues to report a stark rise in exonerations based upon a post-trial finding that the defendant was convicted of a crime that did not occur. In such instances, a person is “convicted of a crime that did not occur, either because an accident or a suicide was mistaken for a crime, or because the exoneree was accused of a fabricated crime that never happened.”  The Registry reports that almost one third of the 2013 exonerations were in cases in which no crime occurred. To date, a number of “crime-less” cases have already been reported for 2014.  Many of the recent “crime-less” exonerations involved child abuse prosecutions, which were overturned due to improper police  interrogation techniques when questioning minors, and/or the prosecution’s reliance upon suspect medical evidence.

Unfortunately, there are many obstacles to re-investigating and presenting a “crime-less case” for review, since such cases are generally based upon circumstantial evidence. The Registry reported that a majority of reported  “no-crime” convictions resulted from the prosecution’s presentation of false testimony, and its unfettered reliance on cooperators, informants, and rogue police officers. Other no-crime convictions resulted from the prosecutions reliance on faulty scientific evidence, which incorrectly determined instances of arson and/or murder.

Earlier this year, Professor Samuel Gross of Michigan University School of Law noted that “these cases used to be very uncommon, as they are extremely hard to prove,” given that “there’s no DNA to prove someone else guilty, and no alternative confession to draw upon.” However, Professor Gross explained that the recent rise in crime-less exonerations is a hopeful sign that “prosecutors and judges have become more sensitive to the dangers of false accusations and are more willing to consider that a person is innocent even where this is no DNA to test or an alternative perpetrator coming forward.”

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U.S. Sentencing Commission Approves Amendment to Federal Sentencing Guidelines

The United States Sentencing Commission has recently approved an amendment to the Federal Sentencing Guidelines, “Drugs Minus Two,” which would reduce the sentencing guideline levels applicable to most federal drug trafficking offenses. Specifically, the amendment works to lower the base offense levels in the Drug Quantity Table prescribed under §2D1.1(c)(1) of the Federal Sentencing Guidelines Manual, which may ultimately result in a lower guideline sentencing range for many defendants sentenced under federal trafficking penalties.

The Sentencing Commission has voted to apply the amendment retroactively after determining that “setting the base offense levels above mandatory minimum penalties is no longer necessary and that a reduction would be an appropriate step toward alleviating the overcapacity of the federal prisons.” The Commission’s proposal was consistent with its obligation to formulate guidelines to “minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons. 28 U.S.C. § 994(g).

According to the Commission, there are an “estimated 46,000 offenders that may benefit from retroactive application of Amendment 782 subject to the limitation in §1B1.10 (e), and the average sentence reduction would be approximately 18 percent.”

The Chair of the Sentencing Commission, Judge Patti B. Saris, stated that “the amendment received unanimous support from Commissioners because it is a measured approach. It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

The amendment will likely go into retroactive effect beginning November 1, 2015, unless Congress disapproves of the amendment. Congress has until November 1, 2014 to make its decision. If upheld, federal prisoners may begin to petition the courts pursuant to 18 U.S.C. § 3582 (C) (2) seeking a sentencing modification based upon the new guideline ranges.

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Freedom of Press v. Obstruction of Justice: The Special Tribunal for Lebanon Takes a Controversial Stand

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On April 24, 2014, the Special Tribunal for Lebanon (STL), located in The Hague, charged two Lebanese journalists and two media organizations with contempt and obstruction of justice for allegedly publishing the names of witnesses who might appear for the prosecution in the major criminal case before the STL. The basis for the contempt charges is that the publications at issue may cause the witnesses to fear to testify or undermine the Tribunal’s ability to protect them. The STL has issued a summons to the two journalists to appear before the court on May 13, 2014.

In December 2005, the Government of Lebanon issued a request to the United Nations Security Council for creation of a tribunal to prosecute those responsible for the February 14, 2005 bomb attack that killed Lebanese Prime Minister Rafiq Hariri and 22 others. In response to this request and pursuant to its authority under Chapter VII of the U.N. Charter, the Security Council issued Resolutions 1664 (in 2006) and 1757 (in 2007) to establish a tribunal of an international character to prosecute those responsible for the February 2005 attack. The Security Council, through Article 28 (1) of Resolution 1757, required the judges of the STL to adopt Rules of Procedure and Evidence that would include provision for the protection of witnesses. Rule 60 bis of the STL’s Rules of Procedure and Evidence provides for charges of contempt and obstruction of justice against

any person who … discloses information relating to proceedings in knowing violation of an order of a Judge or Chamber.

Trial against the individuals accused of the bombing commenced in absentia in January of this year pursuant to Article 22 of Security Council Resolution 1757 that authorizes the STL to proceed with trial in absentia when circumstances warrant.

The publications at issue in the contempt proceedings confront the STL with serious factional and political complications in the Middle East. A post by the Guardian asserts that the defendants in the case are all members of Hezbollah but also states that Hezbollah has vehemently denied carrying out the attack. A news report by the Daily Star of Lebanon suggests that the publications were made at least in part by persons or media organizations sympathetic to political goals of the defendants.

The STL’s decision on the contempt issue has drawn prompt and strong criticism within Lebanon, including from officials of media organizations and from some members of Parliament. Among the issues raised by the critics is that the STL’s order is inconsistent with Lebanon’s law on freedom of the press. Note that unlike the international criminal law tribunals for the former Yugoslavia and for Rwanda, the STL is a “hybrid court” in that it applies a combination of Lebanese law and international criminal law and is staffed by Lebanese and international participants.

A commentator Karlijn Van der Voort who operates a blog on the STL supports the STL’s decision. Van der Voort, after reviewing analogous matters that have come before other international criminal tribunals, asserted that “there is consistent jurisprudence that the publishing of names of alleged witnesses is subject to contempt of court proceedings” and that in the STL matter “the publication of names of witnesses is one step too far: the fact that the Tribunal does not tolerate this is understandable.” 

The STL has taken a stand it considers necessary to pursue effective prosecution of the perpetrators of the deadly February 2005 bombing. But in doing so, it has engendered strong opposition on the issue of press freedom. What follows in the contempt issue will have important implications for what measures the STL and other international criminal tribunals may take in an effort to proceed with their mandates.

Related Readings:

Judges Quarrel About Counsel’s Silence During Prosecutor’s PowerPoint Summation

Recently, the New York Court of Appeals affirmed the conviction of a defendant accused of killing her husband’s one-year-old daughter, although she had claimed that her counsel was ineffective for failing to object to the prosecution’s questionable PowerPoint presentation during summation. People v. Santiago, NY Slip Op 01261 (2014). At trial, the prosecution claimed that the defendant, Cheryl Santiago, had suffocated her husband’s child after becoming frustrated that the child would not fall asleep. Id. at *5. An expert witness for the prosecution testified that it would have taken the defendant approximately four to six minutes to suffocate the child by using her hand to cover the child’s mouth and nose. Id. at *6.

In summation, the prosecutor presented to the jury  a six minute PowerPoint presentation that consisted of a series of slides using a postmortem photograph of the child. Alluding to the expert’s opinion regarding the amount of time it took for the child to suffocate, the prosecutor suggested to the jury that “if there’s any question in your mind how long six minutes take, take a look at this.” Id. at *7. Without objection from defense counsel, the prosecutor proceeded to play the PowerPoint slides, “with each successive slide progressively fading, until the final slide was entirely white, thus eliminating the image of the [child].” Id.  Notably, some of the slides also contained captions that described the child’s deteriorating medical condition –stating that at one and a half to two minutes- “struggle ends;” four minutes- “brain death occurs;” and four and a half to six minutes –“cardiac death.” Id.

The Court rejected the defendant’s claim that trial counsel was infective for failing to object to the PowerPoint presentation, noting that counsel’s lapse was not a “clear-cut” or “dispositive” omission. Id. at *13. The Court observed that a postmortem photograph itself was properly admitted at trial, and that “[t]he slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury’s emotions.”Id.

The Court did note that it did not know how the PowerPoint presentation aided the jury in its fact-finding function, or how it was relevant to the cause of the child’s death. Id. Furthermore, the Court also observed that the defendant’s failure to make a timely objection to the PowerPoint’s admission –which would have required the trial court to rule on its admissibility- precluded the Court to extend its inquiry further as to whether the trial court abused its discretion and that such error required a reversal of the judgment of conviction. Id. at *14.  In noting this observation, however, the Court implicitly suggested that its inquiry of the matter was cut short due to counsel’s failure (i.e. ineffective assistance of counsel) –and, by its own admission, an objection would have placed the trial court in an unlikely situation of finding that the PowerPoint evidence had any probative value, and even if so, that its value outweighed its prejudicial impact. Id. at *15 (conceding that the Powerpoint failed to “aid[] the jury in its fact-finding function”).

In dissent, Judge Rivera observed that the PowerPoint presentation had manipulated the evidence and was “designed to inflame the passion of the jury in order to engender prejudice against the defendant.” Id. at 1 (dissent, j. Rivera). She concluded that the Court had erred in not finding that counsel’s failure to object to the PowerPoint presentation had amounted to ineffective assistance of counsel. She noted that counsel’s lapse permitted the prosecution to taint the jury’s deliberative process –which denied the defendant a fair trial. Id. at (“The prosecutor’s use of this Powerpoint imagery was an impermissible attempt to secure a verdict based on emotion and repulsion for the defendant, rather than facts.”).

Judge Rivera was also extremely troubled by the inflammatory nature of the Powerpoint, noting that “[a]ny doubts as to the emotional responses engendered by the presentation are easily dispelled by viewing the slide show, wherein the picture of a 21 month old child, in her pink pajamas, with white froth on her lips, her body prone and lifeless, is projected over and over, fading slightly with each slide, until all that remains is a white background and the memory of her tiny body. One simply cannot be but moved by this depiction.” Id. at 3.

Notably, the ever-changing dynamics of courtroom advocacy due to the technological advances in “trial presentation” software may continue to cause issues for criminal defendants when utilized in an improper fashion by prosecutors. Although such technology can provide each party a better, faster and clearer way of presenting information than conventional trial form, it can also lead the jury away from “the four corners of the evidence” and hinder the truth seeking process. Hopefully, the courts will use caution when allowing evidence to be presented in an unconventional format, and take consideration of the fact that a juror may become more occupied with the entertainment value of the presentation rather than the relevance of the information being conveyed.

Related Readings

  • People v. Caldavado, 78 AD 3d 962 (2nd Dept. 2010) (permitting a “PowerPoint presentation as to the injuries associated with shaken baby syndrome and in allowing an expert witness to shake a doll in order to demonstrate the force necessary to inflict shaken baby syndrome.”).
  • People v. Yates, 290 AD 2d 888 (3rd Dept. 2002) (finding no error in the presentation of  a computer-generated video demonstrating the mechanics of “shaken baby syndrome.”).