Repetitive Testimony as the Defence Tries to Discredit Prosecution Witnesses

Notwithstanding the stratagems of Mr. Koppe, Nuon Chea’s international defence attorney, it was an average day of evidentiary hearings in case 002/02. But the public gallery was full of a cascade of colour. Cham-Muslims from Chamkar Liu district, Kompong Cham province, 345 of them, came to see the court in action in the morning. Their traditional dress enlivened a scene that was largely a repetitive and pedestrian examination on the evidence. Despite the slow pace, the President of the Trial Chamber worked hard at keeping the trial moving forward.

The Trial Chamber was called to order at 10:00 AM, after an unexplained delay. The greffier recorded that all parties were present but that Nuon Chea was participating from downstairs. A letter waiving Nuon Chea’s right to direct attendance had been filed with the court. Two witnesses were waiting to be called.

The President notified the court that he had received a medical report from the doctor on duty based on his examination of Nuon Chea. The accused was found to be in generally good health but suffered from dizziness and a prolonged back ache from all the sitting.  Because of these two problems, the doctor recommended that the accused listen to the day’s activities from downstairs. President Nil Nonn expressly stated that Nuon Chea had told him that he understands his rights but has filed the waiver with the court of his right to direct participation. The court then agreed to Nuon Chea’s request to follow proceedings remotely from the holding cell and directed the A/V unit to connect his viewing link. As Nuon Chea’s defence counsel had requested to be allowed to make a five-minute long statement, the President ceded the floor to Mr. Koppe. It was a succinct statement.

Mr. Koppe declared that the defence position is that Mr. Sokha is lying about the crimes at Kraing Ta Chan.

Co-Prosecutor Lysak was quick to his feet objecting to Mr. Koppe making a statement about matters of which he had not received a customary forewarning email. He was most emphatic that this was neither the time for argument or for drawing conclusions on the credibility of a witness.

Pich Ang, National Civil Party Lead Co-Lawyer, also objected on the basis that the President had already advised that conclusions were not to be made at this time. He pointed out that Rule 92 supports that they are properly saved for the final submission.

But Mr. Koppe was on a mission. He continued to impugn the integrity of the witness, Meas Sokha. Denying that he was making conclusions or arguing on the probative value of the witness’s testimony, Mr. Koppe requested another three hours to conduct his cross-examination.

Judge Fenz interjected to enquire if his request was the result of yesterday or if he had felt this way about the witness for some time?  Mr. Koppe explained his conviction came out of yesterday’s testimony, that he was convinced that Mr. Sokha never witnessed the suffocation incident.

President Nil Nonn was not impressed and berated Mr. Koppe. He told him in no uncertain terms that he was not allowed to make conclusions during a witness’s testimony. “It threatens the accused and makes him lose confidence in his testimony.” The President said he understood the defence counsel’s tactics of yesterday but he “must keep within the range of questions allowed in the domestic system as well as the ECCC.”

Judge Fenz asked whether, if the Chamber extended his examination time to three hours, this would be his final request or would it go to the question of relevance? And, finally, did he really need three hours on this one incident?

Mr. Koppe continued. He claimed that cross-examination on the details was the only way to show the court that Mr. Sokha was an “unreliable witness,” but that he was almost finished with the suffocation incident. He then would move on to details of the children being smashed against trees and of the mass executions.

Co-Prosecutor Lysak proposed that an hour and one-quarter more should be sufficient. He implied it was normal after thirty years for the witness to remember a person being suffocated but not less significant details.

Khieu Samphan’s defence counsel, Anta Guissé, estimated that she would only need an hour if Mr. Koppe did not cover all the bases.

Marie Giraud, Civil Party Lead Co-Lawyer, objected to additional time. She wanted the court to take into account in determining its ruling that the investigation for case 002/02 had gone on for some two years during which time the defence could have questioned the witness and challenged his credibility then but that he had chosen not to do so.

President Nil Nonn ruled Mr. Koppe and the other defence lawyers could examine the witness only to noon. He then had Meas Sokha ushered into the court. Possibly recalling yesterday’s rambling proceedings, he reminded the witness to listen carefully, to answer the questions directly, and to ask for a question to be repeated if unsure of it.

Mr. Koppe was now a man with a purpose: to impugn the integrity of the witness, Meas Sokha, by finding inconsistencies in the witness’s evidence on record. He began by exploring why there were no other witnesses to the suffocation incident, asking particularly why his mother and siblings hadn’t seen it. Mr. Sokha said his mother was not in that part of the compound and his siblings were off playing by the north fence. Next, Mr. Koppe questioned why the other prisoners could not hear the interrogations that Mr. Sokha had heard. The witness explained that music was always played over loudspeakers when there were interrogations. The loudspeakers were turned towards the prisoners’ detention buildings so they could not hear. Mr. Koppe started to say he had visited the site when he was cut off by Co-Prosecutor Lysak, who objected to Mr. Koppe testifying.

Mr. Koppe then moved on to the smashing of the baby, exploring the background of the incident. His repeat questions of yesterday elicited basically repeat testimony from Mr. Sokha: that he was able to move about freely because of his duties tending cattle; what he had done in the morning and the afternoon of that day; that the baby was smashed against a teal tree north of the pits in the first level of the compound; that Sim had been the perpetrator.  Mr. Sokha added that the babies were killed when the mother was killed “to dig out the root as well.” He did not know the mother. And he did not speak of the event afterwards or ask anyone why it had happened: “I would be in danger…I dare not tell the incident to other colleagues. I have to pretend I am dumb, could not speak.”

When Mr. Koppe “put it to (Mr. Sokha) that (he) never actually saw the smashing of a baby against a tree,” the President was quick to reprimand him saying that he had already told him “no conclusions and you can’t ask the witness to confirm conclusions.” Nil Nonn directed the witness not to answer the question. Mr. Koppe’s reaction was typically unique. After defending himself saying he had felt the question was “legitimate,” he followed with the comment: “but in this court interesting things can happen.

The re-examination on the topic of the execution of the 100 prisoners likewise elicited little new evidence. The run through was a similar reiteration of where it happened (at the pits), when it happened (3 P.M.), what the witness had been doing (tending cows), the number of prisoners (100) and how did Mr. Sokha know the number (because the guards told him). Mr. Sokha got frustrated at the constant repetition of the questions but the President told him he had no right to object to what he was being asked, to listen carefully, that “overstating has consequences,” and not to answer if he does not know the answer. When Mr. Koppe challenged  Mr. Sokha that he did not actually see the execution of the 100 prisoners, Mr. Sokha replied that he saw the killing “briefly, then (he) walked away.” Later he had helped to bury the bodies in the pits. Mr. Koppe’s returning to the issue of how many prisoners the man had seen killed, elicited an objection from Mr. Lysak that the question had to be “more clear: ‘did he see all prisoners or some prisoners killed.’” When the court ruled the question repetitive, Mr. Koppe lashed out that it “was a disgraceful objection. I am talking about the execution of 100 people.” After further discussion with the court, Mr. Koppe rephrased the question to ask specifically how many killings Mr. Sokha had seen. The witness replied that he “did not count at the time.” He said he was so “shocked” after seeing one killing that he did not watch anymore but that he knew later that 100 people had been killed because the guards had told him and then he had helped bury them. When Mr. Koppe told Mr. Sokha that he had already testified that he was not involved in burying bodies, he was sharply criticized by the Co-Prosecutor who accused him of “misstating prior evidence.” At 11:10 AM, Mr. Koppe pleaded for more time but was overruled by the President.

Mr. Sokha’s memory appeared hazy on some minor details but he remained steadfast on the events he witnessed and the degree to which they had shocked him.

Defence Counsel for Khieu Samphan, Kong Sam Onn, was up next. He asked Mr. Sokha why there were two different birth dates for him on record. Mr. Sokha said that when he was a soldier, he had changed his age to get retirement benefits. Nil Nonn disallowed a follow up question dealing with why he wanted retirement benefits as not relevant or useful in ascertaining the truth, and ruled the witness did not have to answer it. Mr. Kong’s line of questioning then also went over familiar old territory: Mr. Sokha’s age in 1975 (15); where did he sleep (in a house); why (he was youngest); how many were in his unit (6 and of similar ages)? It did get clarified that Mr. Sokha said he was “the youngest” he was referring to his physical height not age. Mr. Kong thought he had found an inconsistency when Mr. Sokha description of the prisoners being lined up and shackled all in one row in the detention buildings differed from Mr. Sokha’s mother’s evidence that they were in sets of five prisoners. The witness elaborated that the sets of prisoners formed one long row. Mr. Sokha also went over that his brother-in-law was arrested on the meeting day, a day before his father and that the village chief issued the arrest order. He was able to list the names of men who affected the arrest. In reply to Mr. Kong’s enquiry about who knew he had been in Kraing Ta Chan, Mr. Sokla said he had discussed it with DC Cam investigators, with various people in the different places he was posted as a soldier, and that the village chief knew his story.

Anta Guissé, defence counsel for Khieu Samphan, was interested in the seeming discrepancy between Mr. Sokha’s prior testimony that he had not worked on the canals and that of today when he said he had. Mr. Sokha explained that he had only worked on the canals for a very short time. He agreed with Ms. Guissé that his ability to move around and the extra rations (although a minor increase) indicated that he had a different status from other prisoners. On the latter matter, he said he thought he got extra gruel because he was told he needed more energy for tending the cattle. This differed from his mother’s testimony that she was able to get him more food as a perk of being in the kitchen. Mr. Sokha did not seem to know this as he testified that the extra rations could not have come from her because it could have put her “in danger.” Ms. Guissé next questions dealt with having Mr. Sokha identify the staff at the security center and their duties which he answered to her apparent satisfaction.  She then moved on to investigate the placement and operation of the loudspeakers. Mr. Sokha said they were placed facing towards the detention buildings and that no specific person was tasked with turning them on during interrogations and killings. Ms. Guissé’s final questions revolved around the difference between Mr. Sokha’s estimate that approximately 10-30 prisoners came into the prison most nights, more than 300(sic) a month and that of a man who had been on security center staff who testified that the figure was more like 20-25 a month. Mr. Sokla suggested that the man gave a lower figure out of shame or fear of speaking openly.

On the Co-Prosecutor’s objection to Ms. Guissé asking the witness to speculate about another witness’s motives, the examination of Mr. Sokha was concluded. He was dismissed with the President’s thanks on behalf of the Trial Chamber and told the court would provide him with transportation to wherever he wanted to go.

The next order of business was lunch and the court adjourned.

When the Trial Chamber reconvened, the second witness in case 002/02, Oum Sophany took the stand.  The President established that she was born in Phnom Penh on November 18, 1946, her current address, that in 1975-79 she had lived in a commune in Takeo province where she worked as a rice farmer and reviewed the names of her immediate family.

Reminding the counsel of Rule 91(b), Nil Nonn then turned the questioning over to the Lead Co-Lawyers for the Civil Parties telling them that they had just half a day.

Michael Yiqiang Liu, Oum Sophany’s lawyer, began by having her identify a document as a diary that she had written during the Khmer Rouge regime. She testified that she started to write a diary in 1964 after her sister’s suggestion that if she wanted to be a writer she should start by putting her thoughts on paper daily. She did not have her diary during the Khmer Rouge years but, when she could find a pen and a scrap of paper, she would write. She said she wrote “whatever I kept in my heart, I let it out so I felt relief.”  She could not write every day, but would for two or three minutes when her workload enabled her to do so. She wrote of her evacuation from Phnom Penh, re-education, people dying.  She knew the dates because Angkar played announcements that included the date and she also heard elders talk of the date.  She also calculated the date (accurately to within a week) of the lunar calendar. She had recorded her son’s birthday in this way. She kept her diary secret out of fear.

In 1980, Oum Sophany, wrote a book, “When Will We Never Meet Again,” based on her diary and her then fresh recollections of her experiences during the 1975-1979. Although she had been a student at the University of Archeology, she had been assigned duties of a rice farmer transplanting, harvesting and carrying human fertilizer out to the fields, but she also worked carrying earth for roads and on digging canals and ponds. During harvest season, she worked almost 24 hours, sleeping as she could on the grass. Only Angkar could grant the option not to go to work.

Her lawyer asked Oum Sophany to read from a variety of her works including a song called “Inhuman Torture” and “If we disappear, we die” (written after her brother and sister-in-law disappeared). She reported how after she had stood up in a meeting and objected to the Angkar phrase:  “No gain in keeping you, no loss in losing you,” that she felt that she had to work every day. She said she “didn’t feel happiness or freedom at all and that the food was insufficient.”

Mr. Koppe formally objected to the testimony being entered through the medium of Oum Sophany’s writings as he had no idea how the lines to be read where selected. He said he had asked for an English translation of the whole book but his request had been refused. He said the defence wanted to check on how the lines relate to the rest of the book. Mr. Liu said the translation request had to go through the court not civil party lawyers. The President overruled the objection and Mr. Liu continued, drawing Oum Sophany out over an incident when she was in labour and a doctor told her baby was dead. In fact, her son was born healthy and is still alive. She said it was not a real hospital but rather a school that had been divided into a maternity ward and wards for “serious patients,” most of whom died.

The court called a 3:00P.M. break.  When the Trial Chamber reconvened, Nil Nonn said the testimony could not continue as Khieu Samphan’s treating doctors said their patient needed to rest. The President adjourned the court until 9:00 A.M., Friday, January 23, 2015, when the court will hear expert reports on the fitness of the accused to stand trial. He invited the witnesses to stand by, as, time permitting, they will resume testimony after the fitness hearing.