Issue # 42: The Defense Boycott of the Defense Closing Arguments

by Michael Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 149 (2006).

The title of this issue seems at first glance like a misprint or an oxymoron. It is, nevertheless, the most recent development in what has been to date a trial process packed with surprises and interesting legal developments. From the outset, the defense strategy has been one of obstruction and obfuscation, as the lead attorney for Saddam Hussein indirectly confirmed in a recent New York Times interview. The erratic conduct by the defense team has been a major factor in disrupting the procedural predictability and overall dignity of the trial proceedings in the Dujail trial. In my personal opinion, the pronouncement by members of the defense team that they will not present closing arguments as the Dujail case nears its completion are an abdication of their ethical duty to diligently defend their clients. The defense team has stated that the boycott is a response to the June 21, 2006 murder of Khamis al-Obeidi, an Iraqi who was one of the team representing Saddam and his half brother Barzan al-Tikriti. The death of a third member of the defense team is a genuine tragedy, both in the symbolic sense that it represents a direct blow against the restoration of the rule of law and because it was completely avoidable. Prior to the onset of trial, and before the two previous murders, Tribunal officials worked with each member of the defense team to implement appropriate security arrangements. The members of the defense team turned down offers to live with their families in the security of the Green Zone, and chose the form of security that they preferred. The overall security environment has created a range of logistical, practical, and legal problems in the conduct of the prosecution and defense cases. Apart from the murder of defense attorneys, the defense has been unable to specify causal linkages that show a relationship between the challenges inherent in conducting such a high profile trial in the current environment and the conduct of the defense. In fact, Saddam Hussein attempted to take advantage of the security context by interspersing illegitimate exhortation to the insurgents outside the courtroom in the midst of appropriate illustration of defense perspectives. Overcoming these obstacles, approximately one hundred witnesses testified during the proceedings.

Press accounts of the recent letter to the bench announcing the defense boycott of the defense closing arguments indicate that it incorrectly asserts that the IHT lacks “the lawful proceedings that are well established in international and Iraqi law.” The Statute and its implementing Rules of Procedure provide for the full range of individual rights reflected in acknowledged international standards for fair trial proceedings. Despite the challenges posed by the security environment, the defense has had every opportunity to present a fair and vigorous defense for those charged. The longest delay in the entire trial was granted to allow the defense team additional time to prepare for the beginning of the trial, despite the fact that the defense team received the investigative materials two months before trial was scheduled to begin. Significantly, the defense called almost precisely twice the number of witnesses as the prosecution, even though the bench cut short the presentation of a number of other witnesses deemed to offer testimony of redundant and limited probative value. If the defense has an articulable basis for concluding that the security environment has in some manner affected a procedurally fair process, the closing arguments would be precisely the appropriate forum to detail the legal and factual arguments forming the grounds that mitigate towards the innocence of their clients.

Rather than taking the occasion to state their legal case in public and on the record, the defense team has chosen to pack its portfolios and stay home. Given the obligation to represent their clients with vigor and legal precision, it was reasonable for Tribunal officials to presume at the beginning of trial that the defense team would participate in good faith in the judicial process. The defense team has, nonetheless sought to pierce the decorum in open court in ways that are unprecedented for a trial of this magnitude. The IHT Defense Office has worked to ameliorate the effects of the defense team’s demonstrated disregard for the proceedings and their own ethical obligations. The defense closing arguments will proceed after a delay necessitated by the need for court-appointed counsel to prepare. The conduct of the defense in this first trial presents a troubling portent of even greater difficulties in the more complex and lengthy trials that lie ahead. If the defense simply refuses to engage in good faith adjudications based on the evidence and the legal evaluation of that evidence, there will be an inevitable corrosive effect on the procedural guarantees built into the IHT. Such conduct in future trials endangers the effort to demonstrate a fair and transparent trial process that exemplifies the rule of law in accordance with international standards for the Iraqi people and the wider regional audience.

Posted @ 12:02 PM | Experts Debate the Issues: The Dujail Trial