"He would come in and say, ‘Issa, we are just trying to help you…’"

I just finished reading an excellent report called “Effective, Efficient, and Fair: An inquiry into the investigative practices of the Office of the Prosecutor at the Special Court for Sierra Leone” by Penelope Van Tuyl at the War Crimes Studies Center at University of California, Berkeley. (Email me if you would like a copy, and I’ll forward you the PDF.)

This 80-page report provides an almost irrefutable and damning critique of the Special Court’s Office of the Prosecutor (OTP), based on a voir dire on OTP practices during the arrest and interrogation of Issa Sesay, a former RUF leader. The voir dire led to the exclusion of thousands of pages of transcript from the interrogation with Sesay, as judges ruled that OTP had violated many of Sesay’s rights. The report is most critical of OTP, but also discusses Special Court rulings that go against facts in evidence, and critiques the Defense Office for not actively defending Sesay’s interests.

Below are excerpts from the report that I found most interesting. If you’re a Law and Order fan, you might notice that this reads like an episode where Detective Stabler finds a suspect so despicable he decides that the rule book just doesn’t apply anymore.

• The panel of judges presiding over Mr. Sesay’s trial called the voir dire to determine whether or not the accused freely waived both his right to remain silent and his right to counsel during the interviews, and voluntarily made the statements in question.
• “He would come and say, ‘Issa, we are just trying to help you. But what we have been hearing, if you don’t confirm these things, how will we be able to help you?’ He said, ‘So you have to confirm the things that we have heard. That’s the only way we’d be able to help you, so that you will be out of this problem.” – The first RUF accused, Issa Sesay, describing ‘off-the-record’ conversations with investigators during his custodial interviews at the Special Court for Sierra Leone…
• During the voir dire, documentary evidence and Prosecution witnesses confirmed, among other things, that for days immediately following his arrest, Mr. Sesay was isolated in Prosecution custody, questioned at length outside the presence of counsel, offered the prospect of an insider deal without fully understanding the charges against him, and subjected to various forms of off-the-record pressure and inducement.
• DEFENSE COUNSEL: You would say that that is proper and legitimate investigative tactics?
  CHIEF OF INVESTIGATIONS: In this type of crime, yes, Your Honor.
  DEFENSE COUNSEL: For you, it all comes down to the seriousness of the crime, doesn’t it? That, if it is so heinous—the charge—that kind of tactic is legitimate?
  CHIEF OF INVESTIGATIONS: Legitimate, depending also the type of crime, but also, with the person that— to whom this deal, if you want to, or these offers are made. -Excerpt from voir dire
• In structure and in mandate, the OTP was intended to reflect a “hybrid” approach to international criminal justice—combining domestic and international elements in one institution. …At least in theory, these include international crimes as well as violations of the domestic criminal code. In practice, however, none of the indictments has charged any crime under the Article 5, Sierra Leonean law provision of the Statute.
• Pursuant to Article 15 of the SCSL Statute, the most senior OTP officer, the Prosecutor, was to be a UN appointed official, while his Deputy should have been from Sierra Leone. According to the current Prosecutor Stephen Rapp, however, Article 15(4) was “interpreted in an exchange of letters between the UN and the Government of Sierra Leone as meaning that the Deputy Prosecutor is nominated by the government of Sierra Leone, but need not be Sierra Leonean.” …Since the first SCSL appointees began work in 2002, foreign nationals have exclusively and invariably filled all the most senior OTP posts.
• And yet, as this report illustrates, the dogged pursuit of efficiency and economy has extracted its own cost in terms of effective realization of the Court’s multifold mandate and fairness of process along the way.
• OTP investigations proceed with little or no direct attorney oversight, and the Chief of Investigations retains considerable power and autonomy.
• At one point in the interview for this report, [David] Crane seemed to suggest that the arrest itself was a ruse, intended to prevent others from identifying the accused as a cooperating witness. “We made it look like he was being arrested with everybody, but at the time we thought that Issa Sesay was going to work with us… it turned out that finally he changed his mind, and we dropped the matter and he was prosecuted.”
• Neither Officer Lamin nor anyone else ever explained to the accused the import of the papers, nor asked if he was able to understand the indictment. This formal legal document, containing serious charges under a complex joint criminal enterprise theory of liability, was made available exclusively in English. While Mr. Sesay speaks English, it is his third language after Temne and Krio. Moreover, his formal education extends only through seventh grade.
• …while the overall conditions of his detention (including the lack of electricity) made reading his indictment impossible at night: “For the whole of the day I was not in Bonthe. And, during the night, there was no light in the room, in the cell, where I was.”
• Mr. Morissette reportedly warned the accused that he would be dropped as a witness and left to face the consequences if he did not confirm the information the investigators wanted him to confirm.
• Mr. Sesay testified that he didn’t want to be dropped as a witness, so he felt compelled to lie and confirm the version of events alleged by Morissette and Berry. Just a few sentences into the post-lunch interview session, Mr. Sesay can be heard on tape confessing to a crime he had previously repeatedly denied.
• However, the rule most relevant to interviewing a post-indictment individual should have been Rule 63—“Questioning of an Accused.” Curiously, from the moment he began his testimony, Mr. Morissette never independently made reference to Rule 63 or commented on its applicability to the Sesay interrogation. When Defense Counsel asked the Chief of Investigations if he was familiar with Rule 63, Mr. Morissette paused and replied, “Vaguely.”
• Unlike the other detainees on Bonthe, Mr. Sesay was forcibly removed from his cell each interview day, handcuffed, and then either blindfolded or hooded before being taken to a waiting helicopter. Interviews lasted the entire day, getting him back to the detention facility in the evening. Whether deliberate or incidental, these daily trips initially prevented Mr. Sesay from consulting with any of the Defense Office lawyers or advisors who came to Bonthe; the same chartered helicopter that brought duty counsel to the island would immediately carry Mr. Sesay away on the return flight.
• …the Deputy Chief conflated the act of cooperation with a willingness to waive the right to counsel—as if making a statement to police and asserting one’s right to legal assistance were mutually exclusive options: Mr. Morissette: Are you willing to waive the right to counsel and proceed with the interview in preparation of a witness statement; yes or no? In other words, are you willing to discuss with us your involvement; are you willing to tell us what happened and what you know of these events?”
• …he later testified during the voir dire that he didn’t understand the English term “waiver”, and wasn’t aware until later that it meant he was giving up rights. He also testified that he misunderstood the word “counsel” to mean “consul,” (an English phrase he had picked up during the Abidjan peace talks, where a consul took the place of an ambassador who could not attend a meeting)…
• “So, all these days I’m saying ‘yes,’” Mr. Sesay explained, “meaning ‘yes, I’m not guilty.’” Mr. Berry responded, “No, no, you’re not admitting guilt… you’re being advised that you are a suspect and that as a suspect you’re entitled to these rights.” The investigator never attempted to explain to the accused that his initials on the form, far from being the proclamation of innocence Mr. Sesay thought them to be, indicated a willingness to relinquish the rights listed on the form.
• …two of three Judges summarily concluded the opposite— that there was no breach of this particular right and therefore no grounds for exclusion based on involuntary waiver of the right to counsel. Unfortunately, the section of the Court’s majority judgment discussing Issa Sesay’s right to counsel can have little jurisprudential value in future tribunals. With due respect to the judges, this section of the judgment seems largely illsupported by the voir dire record and may do more to confuse than to clarify the law regarding voluntary waivers of the right to counsel…. Simply put, this conclusion does not follow logically from the Court’s own factual findings and statements of law.
• The OTP has never developed or recorded a comprehensive set of Standard Operating Procedures or SOPs for its investigators.
• Crane relied on his Sierra Leone specialist, Corinne Dufka, to educate investigators on the basic history of the conflict and orient them to Sierra Leonean society. During the year Dufka worked for the OTP, she compiled a great deal of information to enhance training and equip her colleagues with the context necessary to conduct crime-base investigations. However, according to Dufka, many investigators simply neglected their briefing materials, and faced no consequences from the leadership for doing so.
• In Dufka’s experience, certain crucial briefing materials received very little notice—such as an atrocity-mapping project she completed to assist investigators with the geographic and temporal distribution of various incidents that occurred during the lengthy civil war. To Dufka’s dismay, many of the foreign investigators seconded to the Court in its first few years remained unfamiliar with the basic geographical lay of the land in Sierra Leone, and never quite mastered the political power divisions and nature of the conflict between the RUF, the AFRC and the CDF.
• Some of them just didn’t even really know the basics, really. They came in having done very little reading about the history of the armed conflict or about the country. I gave them orientation packets which they didn’t read and then they would go out and do investigations, and they were ill equipped to be doing proper criminal investigation, because they hadn’t done their homework.
• Judging from the procedural breaches exposed during the voir dire, it would appear that at least some investigators also failed to master the Rules of Procedure and Evidence. Under cross examination, Mr. Morissette could not clearly explain the scope of the right to counsel as laid out in Article 17 of the Statute, and admitted being only “vaguely” familiar with the Rule 63, which governs “Questioning of the Accused.”
• Dufka further remarked that investigators new to Sierra Leone also needed cultural training on how to effectively elicit information from Sierra Leoneans without improperly leading the witness. Unfortunately, they never received any such guidance, beyond what Dufka and a few others tried to share in briefings. As a result, many of the initial statements investigators took were flawed.
• Defense teams complained that they sometimes received only an English translation of statements (despite the fact that – 45 – several of the witnesses exclusively spoke one of Sierra Leone’s tribal languages)…
• Nevertheless, investigators initially refused the STAs request, relenting only upon the intervention of the Prosecutor.
• During an interview for this report, Crane refused to answer questions about the particulars of the Sesay interviews. He would not confirm whether he was aware of investigative blunders with regard to the reading of Mr. Sesay’s rights, the service of his indictment, or the delay in allowing the accused to contact his family or speak with duty counsel. His terse reply was simply, “Let’s move on. It is what it is.”