On my old blogs, where I discussed legal stuff more often, I talked about how conflicted defense attorneys are about defendants who “roll” on each other – that is, who testify against another defendant in return for either a reduced sentence or beneficial plea bargain from the prosecution. That conflict came to mind while reading about a similar situation that occurred on the other side of the planet.
The Master of Confessions is journalist Thierry Cruvellier’s account of the trial of “Duch” before the name, the international court currently trying former members of the Khmer Rouge for crimes against humanity. Duch was the lead interrogator at the Tuol Sleng prison I mentioned a while back, also known as S-21. Duch’s job was to get people to confess not only their crimes against the revolution, but to rat out others in their “line,” a process known as denunciation.
One of the interesting things about the book is that Cruvellier isn’t writing history. He’s writing about it, but he’s doing it from the vantage point of his own observation of the trials (and other similar trials around the world). Thus, it gives him room to make astute observations that might not be so well placed in a work a pure history.
On the subjection of denunciations, he writes (paragraph breaks added by me):
The court openly hates the very idea of denunciation. Given that at S-21 thousands were tortured and mercilessly killed, the court vehemently rejects the validity of the denunciations obtained there. But in other circumstances, the international legal establishment can be more accommodating.
Mandatory denunciation (though obtained without torture) is a crucial element in many confessions made before international tribunals and, in these circumstances, lawyers find that their consciences remain quite untroubled by it. On the contrary, they actively encourage it. A defendant who pleads guilty to a UN tribunal is told to denounce his accomplices if he wants to win over the prosecutor and earn the judges’ leniency. He isn’t forced to name names under torture, of course, but if he wants to make the most of his guilty plea and obtain a lighter sentence, then he has no real choice but to comply.
Rwanda’s community courts, known as Gacaca courts, which have been so misguidedly praised over the past ten years, feed off of mass denunciations. Though they don’t torture people, snitching is inextricably linked to confessions in Gacaca courts. The result is an all-consuming, rampant, and poisonous judicial operation that had produced more than a million suspects. Throughout Rwanda, the pressure to name one’s accomplices has given rise to slander so great it wouldn’t be out of place in the archives of S-21.
‘Denunciation is another form of lying,’ Francois Bizot, a survivor of imprisonment by the Khmer Rouge, says in court. International justice, it seems, only hates lying in certain circumstances.
This captures the essential issue when it comes to defense attorneys and rolling codefendants. On the one hand, their testimony is inherently suspect because it’s being given in return for something of value – more lenient treatment. Indeed, a federal court once recognized this for what it is – bribery – but swiftly backpedaled upon realization that banning the practice would bring the criminal justice system screeching to a halt. On the other hand, providing what the federal system calls “substantial assistance” is often the only way one of our clients can help reduce their sentence.
Which goes to show, I guess, that “justice” and what it looks like isn’t so different, whether you’re dealing with petty drug dealers in West Virginia or the architects of mass murder in Cambodia.