AIDP Blog

Military Justice and Stand-by Counsel

The idea of stand-by counsel makes sense to prevent the accused from disrupting proceedings and evading justice. The U.S. military justice system allows stand-by counsel in some circumstances. Under Rules for Courts-Martial (RCM) 506(d) the accused may waive the right to be represented by counsel. If the judge finds the accused competent to understand the disadvantages of self-representation, RCM 506(d) provides:

The military judge may require that a defense counsel remain present even if the accused waives counsel and conducts the defense personally. The right of the accused to conduct the defense personally may be revoked if the accused is disruptive or fails to follow basic rules of decorum and procedure. [emphasis added]

The drafters of these rules understood that the accused at a court-martial proceeding is entitled to many rights, but the right to disrupt the judicial process is not among them. The Rules for Military Commissions (RMC) are similar, but anticipate that the accused will be disruptive. RMC 501(b) provides:

Should an accused, pursuant to his request, be deemed competent to represent himself, detailed defense counsel shall serve as standby counsel. [emphasis added]

Charles Taylor’s case raises another issue altogether. At what stage may stand-by counsel take over for a boycotting accused? May the detailed counsel speak for the accused prior to his election of rights at an arraignment hearing? The Rules for Courts-Martial anticipate that stand-by counsel would take over at some point after the accused has a.) elected to represent himself, and b.) entered a plea. It is unclear what happens when the accused refuses to participate in even the preliminary stages of the trial. In any case, the best interests of the accused – if not the accused’s wishes – will be served if stand-by counsel is permitted to take part in pre-trial and trial proceedings. The rules of court should be amended accordingly.

I’m not quite sure how I understand how amicus counsel differs from the stand-by defense counsel. It seems that the amicus counsel proposed is the same thing, only called something different. They may not be purporting to “represent” him, but isn’t that what they are doing? If Charles Taylor refuses to speak to stand-by defense counsel, I don’t see why he will accept “amicus” counsel. If Mr. Taylor is cunning enough to orchestrate major black market deals involving diamonds and weapons, then surely he’s cunning enough to see that amicus counsel is substantively no different than a stand-by defense counsel. Furthermore, if he refuses to acknowledge the legitimacy of the court, then why would he acknowledge the legitimacy of anyone associated with the court, even if the amicus counsel is coming from a third party. No matter what, Mr. Taylor will likely reject any counsel in an attempt to further frustrate his trial, so perhaps it does not matter what his defense counsel is called, just as long as he has some sort of defense counsel, whether he accepts it or not, and the trial continues as scheduled.

There is a problem when a defendant and/or his defense counsel so disrupts the proceedings that the proceedings can no longer continue. I do not see, however, how the appointment of amicus counsel solves the problems raised by the ICTR judges. In your blog, you state that amicus counsel does not officially represent the defendant, but may step into the role of defense attorney in some aspects if the defendant and/or his attorney fail to cooperate or participate. I do not see how this is different than the situation where a stand-by defense counsel is appointed over the defendant’s objections. The amicus counsel is still performing legal functions in the interest of the defendant, without the defendant’s consent, participation, assistance, or cooperation.

Though not ideal, I think the best solution to an uncooperative/disruptive defendant who fires his counsel is to remove the defendant from the courtroom, allow him or her to view the proceedings on closed circuit television, and retain the defendant’s previous counsel. Though the defendant no longer wishes to work with his counsel, this counsel is still better prepared to represent the defendant than a stand-by court appointed counsel who may have never communicated with the defendant.

If the defense attorney fails to cooperate, in no circumstances should proceedings against the defendant continue. No matter what delay is required to remedy the situation, it is fundamentally unfair to prosecute a defendant who has no capacity to defend himself, and this practice would never be accepted in other jurisdictions, such as the United States.

The question of what to do with a defendant who will not cooperate does not have an easy solution. When prosecuting a war criminal it is important to accomplish two things (among others). The first is to make sure that the criminal is given a fair trial and not simply punished by the victor or the international community with no justification. The second is to make sure that those who lost loved ones or were harmed by the war crimes feel that something is being done about the injustices committed. When dealing with an un-cooperative defendant, it is hard to find a solution that will satisfy both of these goals. Skeptics may simply refuse to accept that Taylor can receive a fair judgment if he is being represented by a court-appointed counsel that he is not cooperating with. However, if no one is appointed to represent Taylor’s interests then neither of the goals will be met.

While Amicus counsel may present problems and may never be accepted by skeptics, it seems to be the best option when dealing with uncooperative defendants such as Charles Taylor.

Isn’t one of the problems with both the Sierra Leone and East Timor tribunals that they do not have enough funding like the ICTY and ICTR do? If this is the case, it seems like having more people who need to get paid and may not even be necessary for the functioning of the tribunal is the best use of the limited funds that are available. Also, if the defendant is refusing counsel from the original attorney they had, what is to make us think they won’t try to do the same thing with regard to the stand-by counsel? If the judge can force them to be represented by a stand-by defense counsel, why can’t he just force them to be represented by their original counsel and avoid the problem of having a potentially unnecessary position at the tribunal? I realize that the solution if far from being this simple but these were just the first thoughts that came to me when thinking about the idea of a stand-by counsel to be used in situations like the Taylor case.

I believe that the Tribunal must be very careful in appointing any counsel (whether “representing” him or just representing his interests). The main thing the Tribunal must worry about is the public’s view of the Tribunal’s inherent fairness. Even if everyone believes such a step is necessary, having a counsel represent a man that does not want to be represented by is not generally going to be considered the most fair or optimal way of preceding. To maximize the apparent fairness of the proceedings, the Tribunal should be sure that the appointed counsel is, and appears, to truly representing the interests of the accused. Things like the counsel’s nationality and political alliances should certainly considered.

Since I believe that independence from the Tribunal is the most important aspect of any defense counsel not requested by the accused, I do not believe that amicus counsel is the best route. The appointed counsel should seen as representing the accused and only the accused (while an amicus counsel can’t say that he is “instructed” by the accused, a standy-by defense counsel could not truly say that about an uncooperative accused either). If there is no appointed counsel representing only the accused and the accused does not attend, then the public may believe that the accused will not have recieved full and fair representation.

I believe the best option is for the Tribunal to appoint a stand-by defense counsel that will vigorously fight on the accused’s side, as well as constantly reminding the accused of his right to represent himself or appoint the counsel of his choice. If the accused has dismissed or does dismiss an appointed counsel and puts forth legitimate reasons (of either bias or lack of due diligence, etc.), these reasons should be carefully examined, and if substantiated, the Tribunal should dismiss that counsel and attempt to replace them.