21 Nov More on the Selection of Stand-By Counsel
It is becoming increasingly clear that the Registry made no attempt to comply with the Appeals Chamber’s decision in Seselj. I have now learned that the Registry arranged for Dr. Karadzic to meet with five defence barristers, including Mr. Harvey. Dr. Karadzic was then given a deadline to choose one. Instead, citing Seselj, Dr. Karadzic asked for a copy of the Rule 44 list so that he could have a wider selection. In particular, he wanted the opportunity to choose a barrister who was from Bosnia or Serbia — someone whom he could trust and who would more familiar with the events at issue in the trial. The Registry refused and appointed Mr. Harvey.
I don’t think it would be appropriate for me to identify the four other defence barristers, even if they did agree to serve as stand-by counsel. I note, though, that three of the four have — like Mr. Harvey — defended members of the KLA; one of the four used to be a prosecutor at the ICTY; and one of the four has defended a Bosnian Muslim. Indeed, only two of the four have ever defended a Serb and only one of the four has exclusively defended Serbs. (Why the Registry chose Mr. Harvey over the barrister on the list who has never defended a member of the KLA and who has exclusively defended Serbs is beyond me. Both are non-Serbian, and their credentials are not substantially different.)
Let me be very clear: the fact that four of the five barristers have previously defended members of the KLA does not mean that they would be biased against Dr. Karadzic. On the contrary, all four of the barristers have unimpeachable credentials. And again, there is absolutely nothing wrong with a defence barrister representing individuals from different sides of a conflict. In fact, I think that the willingness to do so is a mark of a barrister’s professionalism. All that is irrelevant, however, to whether a barrister appointed as stand-by counsel will be able to build trust with his client. From a pragmatic standpoint, it doesn’t matter why a defendant doesn’t trust stand-by counsel; all that matters is that, rightly or wrongly, he doesn’t.
The best solution, then, would have been the one endorsed by the Appeals Chamber in Seselj: allowing Dr. Karadzic to choose his own stand-by counsel. The Registry obviously did not give him that opportunity. Even worse, the Registry clearly did not even attempt to put together a list of defence barristers whom Dr. Karadzic might be inclined to trust. Doing so would not have been difficult, given that the Rule 44 list includes more than 150 barristers, many of whom are Serbian or have represented only Serbian defendants. Indeed, it is more than a little suspicious that four of the five barristers on the Registry’s hand-selected list have defended members of the KLA — after all, only eight of the 161 defendants at the ICTY, less than 5%, are Kosovar.
Coincidence? You be the judge.
This is all very interesting, and continues to raise the central question of what role a defendant’s subjective preferences should play with respect to standby counsel whom the court appoints precisely out of concern that the defendant is obstrucing. To be clear, if Karadzic wishes to counsel to represent him, is he not still free to do so? By contrast, if the purpose of standby counsel is to step in for a defendant who is obstructing or refusing to cooperate, then shouldn’t the court’s focus be on choosing someone that it believes will perform that role responsibly precisely in the event that Karadzic is not cooperating? In that scenario the client’s own preferences become less important I think. To put it another way, is this still a semantic issue over what the standby counsel is called? If, as you previously suggested, the ICTY simply changes Harvey’s offical title to “amicus,” does the problem go away? On a more technical point, I think it’s relevant to distinguish between “Serbian” (adjective form of Serbia) and “Serb” (ethnic term). Karadzic is a (Montenegrin-born) Bosnian Serb political figure rather than a Serbian politician and thus, unlike many of the Serbian defendants, was never himself… Read more »
Sorry – I meant to write “To be clear, if Karadzic wishes to select his own counsel to represent him, is he not still free to do so?”
I agree with the point that nothing is stopping Karadzic from appointing counsel of his choice.
He seems to be trying to have his cake and eat it, too – choosing not to be represented but wanting a stand-by counsel as his counsel, leaving him free to not cooperate if he chooses but with the benefit of fully briefed counsel.
I would have thought that Karadzic only needs to ‘trust’ his stand-by counsel to the extent that he intends to brief him, at which point he is presumably represented by that counsel??
Finally, can you rule out that the registry simply picked the five most qualified defence counsel with experience of the relevant conflicts? (Just a thought, I obviously have no way of knowing one way or another)
IHDE,
Without getting into names, although two of the five have a very significant amount of ICTY experience, the other three have no more experience than literally dozens of the barristers on the list.
I am wondering how pragmatic the proposed solution “allowing Dr. Karadzic to choose his own stand-by counsel” really would be. Karadzic’s argument–that he should be able to choose his own attorney–seems disingenuous given his reasoning for not agreeing with the appointment of Harvey–an advisor stated that Karadzic objected to Harvey because he had “absolutely no knowledge whatsoever about the case.” http://english.aljazeera.net/news/europe/2009/11/20091120143951856120.html
Due to the stated rationale, it seems that Karadzic has more of a problem with the time constraints that Harvey would be placed under–he can not argue that a lawyer with Harvey’s credentials, if given enough time, could not come up to speed with the case and give adequate representation–more so than his credentials or any perceived bias. Such a problem could be solved more easily by the grant of a time extension then by a resort to the proposed solution. It seems that the process involved with allowing Karadzic to choose his own counsel would add unnecessary expense and delay to a trial that has already drawn international criticism.
It would be interesting to know as well if other lawyers were contacted but refused to be considered (perhaps having been convinced by one of Kevin’s earlier posts!)
Thanks Kevin.