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Comment: Sound-bites from the trial of the year

A n unofficial transcript of the Feb 22 trial against Prince Norodom Sirivudh has

been examined by an experienced Western trial attorney. A second Western lawyer has

reviewed the following text. Excerpts from the trial are in italics. The attorney's

comments follow.

• The trial, Feb 22. 9am: Judge Ya Sakun presents the prosecutor Chin Chiva,

the court clerk, Sirivudh's defense team Say Bory and Heng Chy, the plaintiff's lawyer

Kao Bun Hong, and five witnesses. Sirivudh was declared to have known about the trial,

but was absent, according to the State, because he had been exiled to live in France.

In the normal course of the introductions, Bory is asked his name, age and address.

"Bory has just had a death threat, now he has to say where he lives. That's

got to be in his mind," the lawyer said.

Another lawyer said that this was a standard, mechanical practice in Khmer courts.

Another foreign lawyer pointed out that the plaintiff - the government - was represented

by government attorney Kao Bun Hong.

"From my understanding this was solely a criminal case, with no civil matter

involved. Therefore Kao Bun Hong had no business being there. This can only be seen

as intimidatory."

• The first witness, Chem Phary, is questioned. Phary was a newspaper

advertising executive present at a meeting when Sirivudh made threats against Hun

Sen. Phary was asked by the judge whether Sirivudh said he had planned to assassinate

Hun Sen. Phary said Sirivudh would deploy forces in ambush while Hun Sen was in convoy.

Phary testified that Sirivudh could take a pistol easily and kill Hun Sen in the

Royal Palace, and that no-one would check him. When Phary answered the judge that

he couldn't remember when and where Sirivudh said he had this planned, plaintiff's

lawyer Kao Bun Hong said: "Recall yourself. You told me that Sirivudh planned

to kill Hun Sen in a convoy from Phnom Penh to Kraingyov."

"Phary says some damaging things. OK, you've got to take this head on. You

can't avoid it. A vigorous defense attorney would try to discredit him. Make him

look like he has a bias or a motive. You couldn't ask him direct if he thought Sirivudh

was joking... you never ask a question that you don't know the answer to. You'd ask

him whether he knew the reputation of Sirivudh, did he know Sirivudh was a jovial

character, that he liked to dance and sing, that he was informal. You could lead

this guy down the path.

"The judge is asking leading questions. In the West you'd leap up and object

that he's leading the witness and telling him what to answer. That's OK here though."

• Pin Samkhon, the president of the KJA was next questioned. Samkhon said

he did not know about the plan to kill Hun Sen. He said that journalist So Naro -

who broke the Sirivudh "plot" in his newspaper - told him only that he

had a dangerous story to publish and "I did not ask him about it because I was

not interested."

"Under cross-examination you can knock Samkhon out. Or use him to your advantage;

if he hasn't hurt you, use him. Here is a sympathetic witness, use him to discredit

the other witnesses who could be damaging. We know he doesn't like So Naro, so ask

him about his relationship with Naro.

• Sok Hach, a Ministry of Finance advisor, was the first absent witness. His

statement was read to the court. He stated that he knew Samkhon, but that when they

had discussed Sirivudh he was not paying much attention. The statement said: "As

for the attempt of Sirivudh to murder Hun Sen, I am sorry but I did not notice it...

I did not pay attention."

The attorney said that if Hach had have been present "then you could have proved

that he is nothing. If he doesn't hurt you turn him around and use him to bolster

your other witnesses like Samkhon. You could ask him about Samkhon's relationship

with Naro. He really doesn't know what's going on, so that's good. This is a government

witness who under cross examination would be totally discredited, and irrelevant."

• Next, So Naro, the newspaper editor who published the story. Naro said he

had met Sirivudh before Oct 26 when he went to sell him some portraits of the King

(later called calendars). He said he used Phary, who knew Sirivudh better, to arrange

the meeting at the Funcinpec office. Naro said Sirivudh manipulated the conversation

toward the living conditions of the poor, prostitution, and the fact Sirivudh wasn't

satisfied with CPP or Hun Sen. Naro said the Prince said that "an armed group

came to seek my suggestion" for killing Hun Sen. Naro said that Sirivudh had

twice told him during the conversation that he had not yet given the group the green

light "but wait until 1996". Naro had earlier been specific in Sirivudh's

plans to use a rocket. Later, Naro testified that Sirivudh said he would smuggle

a pistol under his coat and kill Hun Sen in the Palace grounds. Sirivudh said he

had shot several of his men when he lived in a camp.

"You can make hay with this guy. He's changed his story several times, and a

defense lawyer would point out this inconsistency. 'Are you telling the truth now,

or were you telling the truth before?' This is a key witness, who's just given two

and a half pages of damning testimony. It's absolutely imperative you cross examine

him. But if you're Bory, it's at this point you remember in the back of your mind

that you've received a death threat the night before.

"Naro is a key guy, he hurts Sirivudh the most severely. But he can be easily

impeached with the prior statements... this guy can be made to look less than truthful.

Even the most rookie of lawyers knows you've got to take this guy on. [Bory and Chy]

didn't, and that was the biggest mistake."

• Ung Phan, Minister of State, was absent and had his statement read out.

Sirivudh told Phan by telephone, the statement said, that he would "shoot to

kill" Hun Sen and that if Hun Sen wanted to play with violence "I am violent

too."

"There are major problems here. Damaging testimony, and the witness is absent

"on a mission". Excuse me? Well, where is he, we'd like him here so we

can talk to him please. How can you adequately defend someone, how can you confront

a person accusing your client of something, with the witness not being there? You

can't cross examine a piece of paper. The defense should have filed a motion to postpone

right then and there. These are extremely damaging accusations and they need clarification.

There are a whole bunch of questions that Phan needs to answer: What's his relationship

with Sirivudh; does he know Sirivudh likes to joke; how does he know Sirivudh was

on the line; was the line bad? If the call was recorded, has the defense heard it?

Was it doctored?"

• An expert report from the Ministry of Interior on the tape recording, information

on the search warrant of Sirivudh's home and a report on the search, and a forensic

inspection of the weapons found in the house were tabled. Sirivudh had 15 rifles,

four pistols, a rocket launcher, hundreds of bullets, two bayonets and a mobile phone.

The weapons were tested under forensics for reliability, the guns being ranked from

90% effective down to 40%, which were classified as "weak".

"Again the same problem: how can you cross examine a report? A vigorous attorney

would ask that the person who prepared the reports be subpoenaed to give evidence.

The defense should have got its own experts to rebut what was said here.

"The matter of the weapons is very important because it goes straight to the

heart of the second charge [illegal weapons] and relates the first charge too [conspiracy].

This is the strongest thing against Sirivudh. If he indeed had all these weapons,

then even in Cambodia it doesn't look good. Whose are they? If they were in his house

and unregistered, then this is tricky.

"But later on they inspect the weapons. And they find that some don't have bullets,

and that some are only 50% or 40% reliable. What are these things? They're nothing

but pieces of metal. They're not guns. This doesn't look like a stockpile of lethal

weapons. Did the defense get the chance to run their own tests?

"This would come down to a battle of forensic experts - and their guys have

already said most of them aren't 100% effective. In the West this would take days

to knock down. But you're in Cambodia. This is how it happens. You have a three hour

trial and finish up with a 10-year sentence.

"A defense team would do its own investigation and call the policemen who searched

the house, too. Did they find a fortress with stockpiled weapons. Or did they find

these things locked away somewhere? We just don't know."

• The court then hears the summing up, first from prosecutor Chin Chiva, then

the defense. Bun Hong speaks once, Chiva four times, and Sirivudh's defense team

four times.

"The hearing today has clarified a new step in implementing the legality of

society," Bun Hong said. "The exercise of rights, freedom, and democracy

under the Constitution, which states citizens are equal before the law, adhering

to their roles and status in society." Bun Hong said the law allowed for a trial

in absentia. Sirivudh was an intellectual, a competent person who established an

armed group under his control. There was a clear direction to kill Hun Sen by a rocket

at his car, or shooting him inside the Palace grounds. He said analyzing the evidence

of Naro and Phary, it was clear that there was one or more others waiting for Sirivudh's

orders. He pointed out that Sirivudh had "many weapons" which "definitely

meant many people."

Heng Chy said that the prosecution had not established the identity of any alleged

accomplices. Also, under Article 54, Sirivudh would have to have been "bearing

and transporting" the weapons for them to be illegal.

Bory said that there had been no point to identify Sirivudh joining any armed group.

"Conversation or words, whether taped or not, or weapons kept unused at home

are not objects of crime." Summizing that an accomplice was involved is not

proof of an accomplice, he said. Bory indicated that if Sirivudh did indeed say the

words he did, but there was no proof to say he was acting in a partnership, then

the conspiracy charge could not be proved. Bory expanded on Chy's argument that Sirivudh

was not transporting or carrying the guns.

Chiva replied. Whatever appeared in front of the courtroom was evidence, he said.

"The words of Sdech Krom Khun also clarified that there were people behind the

Prince, waiting for the Prince to give the green light to attack."

Chy said that the prosecutor and "moreover the Investigating Judge" had

previously decided the accomplice had no identity, therefore they had to postpone

any prosecution. "Without identity... therefore the criminal procedures established

with great effort so far cannot determine the existence of the offense of "organizing

an armed group."

Bun Hong said: "... we have not identified [Sirivudh's accomplices], not knowing

who these persons are among millions of people... we'll wait until the time we find

the person, then we'll bring that person to justice."

He said if there were people waiting for the Prince's approval to kill Hun Sen "it

really constitutes a group. If there is a group, that fits into the issue of numerous

weapons."

Judge Ya Sakun then retired before returning with the verdict, beginning "there

is enough guilt and evidence against Norodom Sirivudh, who has indeed committed the

offense of setting up an armed team and using unlicensed weapons..."

Sirivudh was clearly the ring-leader of an armed group that had several times asked

for the "green light" to ambush and kill Hun Sen. It was Sirivudh's intention

to change the regime and history. The attempt was politically motivated, he said.

Sirivudh had the weapons, and his intention was to cause chaos in the country, create

civil war, and make the country fall weak, he said. All the court's decisions were

borne up by witnesses' testimonies.

The arguments of the defense team were rejected.

"Therefore, the Phnom Penh Municipal Court decides to sentence Sdech Krom Khun

Sirivudh to 10 years imprisonment..."

The attorney said: "There was nothing atypical about the structure of the trial

- for a Cambodian trial."

He said that if he had have been the judge, he too would have found Sirivudh guilty

of conspiracy to kill Second Prime Minister Hun Sen and possession of illegal weapons.

However, that was only because Sirivudh's lawyers, Say Bory and Heng Chy, did not

cross-examine witnesses, nor pick apart the forensic reports and search warrant.

"It was clearly a political case, and [the verdict] was pre-determined,"

he said. "How can you fight a political case with a death threat hanging over

your head."

If Sirivudh's defense team had fought the case vigorously - which they did not do

- then they might have exposed problems and weaknesses in the prosecution case. "They

might have even got the case thrown out, or won it," he said. "But then

they might have been dead, too."

He said that a performance critique of Bory and Chy had to be tempered by the fact

that Bory's life had been threatened the night before the trial.

Bory was afraid for his life. He requested bodyguards. "In the West, on balance,

you might shrug this off. In Cambodia, with this sort of trial, you probably wouldn't."

Bory and Chy made coherent, logical closing legal arguments, he said. But they had

already lost their case by not cross examining the witnesses.

"But you don't have a trial and leave your big stuff to the end when bad things

have gone against you at the beginning.

"They didn't do a bad job to close, but they didn't set it up at the beginning.

You don't hope for a knock-out punch at the end. That's for television. A real trial

is a war of attrition."

This case, he said, did not represent legal malpractice on the part of Bory and Chy

"but it wasn't a very rigorous defense".

Sirivudh's absence hurt, "as every trial when your client is not there is difficult

to win." The lawyer said.

"Was it a competent job? Well, it's easy to second guess sitting comfortably

here. But there were many mistakes and missed opportunities, especially in not setting

up the record for an appeal.

"They didn't cross examine any of the witnesses, they didn't do anything about

the reports. Their arguments were legally sound, but they came too late. The court's

mind had already been made up."

The evidence went uncontested, therefore the verdict was obvious.

He said a defense attorney was always going to lose nine out of ten cases. "It's

rare you win one, so what you have to do is set up the scenario so you have a basis

to appeal. That's why you cross examine so you find every little thing to latch onto."

He said Sirivudh should appeal "even if it is a political trial. Sirivudh says

it's a sham, so why validate this? Better to go through the whole level of appeals

to show how bad the system is, if that's what he wants. Keep it in the public eye."

The Cambodian justice system allows "another bite of the apple" on all

levels of appeal, which was different from the West were only points of law could

be appealed. Prince Norodom Sirivudh was given no more, and no less a trial than

most Cambodian defendants, according to a Western lawyer who has studied a transcript

of what was said in court on Feb 22.

"This sort of thing is a typical Khmer trial.

"They bring in a witness, they argue, second witness, evidence, they argue.

I have never seen a trial last longer than one day. [Trials] follow the same line,

whether they be murders, political cases or for stealing a chicken."

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