Judge Sow to Testify for Charles Taylor? (Updated)

Just when you thought you’ve seen everything — you haven’t:

According to a statement posted on the website of the Special Court for Sierra Leone, Judge El Hadji Malik Sow, a Senegalese jurist who served as alternate judge for Trial Chamber II, has agreed to testify in the wake of the defense appeal.

A guilty verdict was handed down against Taylor last May for his role in the Sierra Leonean conflict.

It can be recalled that following the end of Presiding Judge Richard Lussick’s reading of the final verdict in Taylor’s trial in May, Judge Sow started to speak and people seated in the public gallery heard a few words before the microphones went off.

[snip]

In their appeal document dated August 17, 2012, Taylor’s defense council said that there was a need to proffer other evidence in their appeal motion.

“The defense intends to call as witness on appeal, former Special Court Justice El Hadji Malik Sow. He is expected to testify on his statement that there were “no deliberations” as is alleged in Ground of Appeal 36 of the notice of Appeal, including his presence (or lack thereof) at any purported deliberations amongst the justices of Trial Chamber II.

“The defense inquiry through justice Sow will be limited to establishing the fact of their being no deliberations as alleged in Ground of Appeal, and will not extend to the substance or any discussion between Justices which might arguably be viewed as part of a purported deliberative process,” the appeal document revealed.

In furtherance, Justice Sow will also testify and expand upon his statement, in respect of Ground of Appeal 37, “that the whole system is not consistent with all the values of international criminal justice,” according to the appeal.

If Judge Sow testifies, it would almost certainly be unprecedented.  To the best of my knowledge, no international judge has ever testified on behalf of a defendant — or has testified at all, for that matter.  (Feel free to correct me, readers.)  But I cannot imagine that the Appeals Chamber will actually allow Judge Sow to testify.  Rule 29 of the SCSL’s Rules of Procedure and Evidence specifically provides that “[t]he deliberations of the Chambers shall take place in private and remain secret.”  Taylor’s attorneys are clearly trying to get around Rule 29 by claiming that Judge Sow will testify only to the absence of deliberations, but the distinction is illusory: the purpose of the rule is to ensure that what happens in chambers remains private, and that purpose would be no less defeated by Judge Sow testifying that there were no deliberations than by him testifying that the deliberations were flawed.  Moreover, nothing in the SCSL statute explicitly requires deliberation between the judges; Article 18 simply requires the Trial Chamber to produce “a reasoned opinion in writing” in support of its judgment.  If a majority of the judges can produce a reasoned opinion without sitting down together to deliberate, Article 18 is satisfied.

It is also difficult to see why the Appeals chamber would allow Judge Sow to testify concerning his belief that the “whole system” of the SCSL “is not consistent with all the values of international criminal justice.”  If his proposed testimony is based on the Trial Chamber’s deliberations (or lack thereof), it would be barred by Rule 29.  And if it is based on Judge Sow’s personal view of the trial or the SCSL system in general, I don’t think it would be relevant.  International tribunals notoriously admit any evidence that has probative value, but I don’t see how the reactions of an alternate judge to what takes place in open court could have any probative value whatsoever.  The Appeals judges are perfectly capable of examining the record for themselves to determine whether Taylor received a fair trial.

UPDATE: Annex A to the defence’s motion to disqualify a number of Appeals judges contains a screenshot of how the SCSL’s live transcription system recorded Judge Sow’s statement.  That screenshot has Judge Sow saying “[t]he only moment where a Judge can express his opinion, is during the deliberations or in the courtroom, and pursuant to the Rules, where there is no ^ deliberations, the only place left for me in the courtroom.”  I have no idea what the symbol means; it may be that Judge Sow said a word but the system did not pick it up.  In any case, my speculations about the presence of the symbol in an earlier version of this post were obviously unjustified, so I have amended the post accordingly.