Responding to ongoing issues concerning the adequacy of Charles Taylor’s legal defense team, Trial Chamber II of the Special Court for Sierra Leone signaled to the Office of the Principal Defender and the Prosecution today that it would grant their request to postpone Taylor’s trial until August 20, 2007.  The Trial Chamber’s order issued earlier this week mandating that the trial resume on July 3, 2007 will be replaced by an order at a brief hearing on July 3, 2007 that will delay resumption of the trial until August 20, 2007. 

Principal Defender’s Office and Prosecution Agree that Interests of Justice Support Modification of Trial Schedule  

Earlier this week, the Special Court ordered the Registrar to assist the Principal Defender in assembling a defense team that would adequately represent Taylor in the proceedings consistent with his right to a fair trial under Article 17 of the Statute of the Special Court.  The Office of the Principal Defender, along with the Prosecution, today filed a motion asking to postpone the trial, explaining that the current Duty Counsel assigned to Taylor’s defense, Charles Jalloh, has not been engaged substantively in Taylor’s defense.  The motion explained that Duty Counsel has not received instruction from Taylor or reviewed any significant materials, including expert reports, disclosed by the Prosecution.  The motion to postpone also noted that the Prosecution’s proposed expert witnesses have been challenged by Taylor’s former counsel, and Duty Counsel was not privy to the analysis and discussions that led to these challenges.   

The Prosecution supported the motion to delay the proceedings because the future defense team’s potential challenge to the Prosecution’s expert witnesses would require those witnesses to travel repeatedly to The Hague to testify.  These burdens, the Prosecution explained, could be avoided by postponing resumption of the trial until August. 

The Special Court’s ruling extends the start-date of the Prosecution’s case until August 20, 2007.  The Special Court will hold a brief hearing on July 3, 2007, to discuss their decision to postpone re-commencement of the trial.  It is unknown at this stage whether a fully-composed defense team would seek further extensions. 

Taylor Not Likely To Represent Himself 

When the trial began on June 4, 2007, Taylor complained (through his then-current counsel) that he had not received adequate representation and lacked sufficient facilities and trial support to mount his defense.  Taylor’s counsel then informed the Special Court that Taylor wanted to represent himself.  But when the proceedings resumed this past Monday, Taylor did not appear and the Special Court devoted its entire session to the issue of Taylor’s representation in the proceedings.  

With Taylor again absent from the courtroom on Monday, the Principal Defender, a representative from the Registry, and the Prosecution argued various points relating to the formation of Taylor’s defense team and whether the trial should be delayed for an additional period of time to allow such a team to be put together.  Noting Taylor’s absence from the courtroom without any explanation as to why he was not present, the Court concluded that Taylor was, in effect, boycotting the trial: 

The Trial Chamber notes that the accused’s absence in court
today, in absence of any explanation to the Court, is not only
inconsistent with his indication to represent himself – for how
can one represent oneself if they’re absent? – but it’s also
tantamount to boycotting the proceedings, in the Chamber’s view.
The Trial Chamber agrees with the Prosecutor that the
accused does not have the option to appear before this Court as
and when he chooses to. Regardless of the issues or difficulties
he is encountering in sorting out his fair-trial issues – and we
in no regard consider those issues as small or trivial; they are
valid issues – but regardless of those issues, the accused is
under an obligation to appear before the Court at all times.
When he chooses not to appear, we can assume that he has deemed
to absent himself or he is, in fact, boycotting the proceedings
as a whole. 

Despite this conclusion (and based on the Principal Defender’s submissions), the Special Court accepted that Taylor no longer wished to represent himself and instead would accept assigned counsel to represent him. 

Court Orders That A New Defense Team Be Assembled 

The Special Court on Monday chided both the Principal Defender and the Acting Registrar for their failure to resolve the issue of inadequate representation, which “has been known to the Acting Registrar in general and the Principal Defender in particular since early March 2007 and nothing practical seems to have been done to address the problems.”  Specifically, Presiding Judge Sebutinde pointed to Articles 24 and 25 of the Directive on Assignment of Counsel, which describe the Principal Defender’s obligations when assigned counsel withdraws, and indicated that “the Principal Defender should have endeavored, at least in the short term and in the interim, to comply with” these obligations.  

Similarly, she took the Registry to task: 

The focus of the Registry has not been to provide the
accused with adequate representation as required by Article 17 of
the Statute. Rather, the Registry’s focus has been conserving
funds and working within budgetary constraints. In the Trial
Chamber’s view, the whole issue has wrongly boiled down to
availability of finances rather than fair-trial issues being
addressed. 

The Special Court emphasized the need for adequate representation and resources for Taylor, noted that it had warned the Registry of potential delays from its failure to resolve these issues, and stated that its “worst fears have been realized”: 

In our view, the resolution of this issue lies squarely
with the Registrar, Acting Registrar, in consultation with the
Office of the Principal Defender, and failure to resolve this
issue has led to this and probably further delay of these
proceedings. 

On this basis the Special Court provided both short-term and long-term measures.  In the short term, the Special Court ordered the Principal Defender to assign new counsel either from his list of available counsel or from the Office of the Principal Defender and retain if possible any remaining members of Taylor’s former defense team.  Further, the Special Court directed Duty Counsel to represent Taylor when proceedings were scheduled to resume on July 3, 2007. 

In the long term, the Special Court ordered the Registrar to ensure that by July 31, 2007: 

The Principal Defender is enabled to assemble a Defense team for
Mr Taylor comprising the following: One lead counsel of the
qualities described or mentioned in Rule 45(C) of the rules, two
co-counsel of the quality described in Rule 45(C) of the rules,
and one senior investigator at a P4 level. These will supplement
the residual members of the team of Charles Taylor as they now
exist, the various assistants. Now, the fully constituted Defense team should be in place
by the 31st and ready to address the Chamber when we reconvene.
  
After explaining various logistics related to scheduling, the Special Court stated that the trial would resume from July 3 to July 11, 2007, before adjourning until August 20, 2007, to enable the judges to travel to Freetown for sentencing proceedings in another case. 

At this point, the Principal Defender, Vincent Nmehielle, expressed concerns about assigning Duty Counsel as Taylor’s interim counsel: 

Now, of course, by the order of the Court, Duty Counsel is
supposed to, in the interim, assist with the case. As indicated,
this case, the trial, is to continue on the 3rd of July. There
are a lot of pending motions which Duty Counsel does not have
the — I mean, within the time period, the ability to respond to
all of them, and of course the disclosures that he has not been
privy to before now, to look into between 35 to 40,000 pages of
disclosure, Prosecution disclosure, and continuing disclosure,
for him to be ready to possibly participate in the case as of the
3rd of July, this will create real practical difficulties.
And, your Honours, there are some issues I would like to
address you in chambers rather than in public in terms of
practical difficulties for the OPD regarding this issue. I
wouldn’t want to mention them in public. 

Judge Sebutinde responded: 

Mr Nmehielle, the orders we’ve made are
made in light of the existing rules and the existing articles
on — the existing Directive on Assignment of Counsel. We have
not come out with any directives that fall outside of these
provisions. We’ve not invented anything new.

Now, practical difficulties or no difficulties, we cannot
have a vacuum situation whereby the trial is held to ransom or
the progress of the trial is held to ransom because you’ve not
been able to assign counsel. It is precisely for such a
situation that Duty Counsel has been appointed. If you think
that the present Duty Counsel is not able to handle the case,
then please come up with someone who can. And I don’t think that
Duty Counsel is required, for the purposes of responding to the
motions, to be conversant with the 40,000 pages of disclosure.
That is one. 

But the Special Court left open the possibility that filings could be made addressing the Principal Defender’s concerns: 

But, secondly, it is all the more reason that you should
expedite the appointment of this other counsel, Assigned Counsel ,
that we’ve directed in the short term. And if counsel, on the
3rd of July, have any problems addressing the Court or dealing
with any issues, surely they are capable of making their own applications in that regard. 

The Proceedings Going Forward 

The issues concerning the adequacy of Taylor’s defense team have effectively stalled resumption of the trial until August 20, 2007, at the earliest.  What remains to be seen is whether and how the Registry and the Office of the Principal Defender will resolve these issues to the Special Court’s satisfaction and whether and to what extent recurring concerns about Taylor’s fair trial rights will impact future proceedings.  The Prosecution appears intent on resuming the trial in earnest on August 20th and to begin presenting its case through examination of its first witnesses.  But any failure by Taylor to appear in the future or the inability of the Registry and the Principal Defender’s Office to establish a sufficient defense team as mandated by the Special Court could potentially alter scheduling of future trial proceedings.