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Parties Prepare for Start of Defense Case

In preparation for the start of the defense phase of the Katanga and Ngudjolo, the judges held status conferences on March 9 and 10, 2011. At the status conferences, the primary issue related to a prosecution request for additional information from the defense about the witnesses the teams intend to call. Another major issue related to the length of the defense phase of the trial. Finally, the judges requested the parties to agree upon accepted facts.

After discussing these issues, the trial chamber adjourned the proceedings until March 23, 2011, the day the Katanga defense team is scheduled to call its first witness. After the Katanga defense has called its witnesses, the Ngudjolo team will call its witnesses.

Defense Disclosure

Before the defense teams begin their cases, they were required to submit a list of the witnesses they expect to call to testify. The teams must also indicate the order in which they will call the witnesses, and provide a summary of the facts the witnesses will discuss and the documentary evidence the teams plan to produce. This information helps the prosecution, victims’ legal representatives, and judges prepare for the defense phase of trial.

The prosecution, however, argued that the information provided by the defense teams was inadequate. The prosecution claimed that the summaries of what the witnesses will discuss were not detailed enough to allow the prosecution to adequately prepare its cross-examinations. The legal representatives for victims also requested additional details from the defense teams.

In particular, the prosecution and legal representatives for victims requested additional information about the personal background of the witnesses, such as birthday, ethnic origins, or profession.

The Chamber also noted that there were some deficiencies in the summaries and requested further detail on a number of witnesses.

Lead Counsel for Katanga, David Hooper, noted that in the Lubanga trial, the defense teams were not required to disclose information to the legal representatives for victims. According to Hooper, it would be going “a step too far” if the victims representatives were to conduct investigations into defense witnesses. However, Hooper did not object to providing additional background information.

Counsel for Ngudjolo, Jean-Pierre Kilenda Kakengi Basila, argued that his team had fully complied with the disclosure ruling in good faith. “We have hidden absolutely nothing … our defense team has nothing to hide,” he argued. Kilenda took issue with prosecution submissions that the Ngudjolo defense summaries were poor and too short.

“When we read, for example, that Witness 14 is the biological father of another witness, and will give testimony regarding the situation of this other person during the time of the alleged infractions … what does the prosecution not understand here? What are they having difficulty understanding?” Kilenda asked.

However, Kilenda had no objections to providing additional information on four witnesses the Chamber said required additional details.

The Chamber granted the Prosecution’s request and ordered the Defense to disclose additional evidence by Monday March 14 (which the Defense has since complied with).

Length of Defense Case

In their submissions to the Trial Chamber, the defense teams had indicated how long they estimate their cases will take. The Katanga defense team estimated that it would need 122 hours to examine 23 witnesses and the Ngudjolo team 200 hours for 18 witnesses.

It is normal that the opposing party, in this case the prosecution, will take the same amount of time for cross-examinations.

That means that the defense phase of the case could take 644 hours—or one year and four months of courtroom time, not including the time for legal representatives to victims and judges to ask witnesses questions, or time for witnesses that the Trial Chamber may wish to call witnesses before the end of the trial.

Noting that although the Trial Chamber wishes to allow the defense teams to make full use of their rights in presenting a defense case, the Chamber reminded the parties that it retains discretion to limit the number of witnesses to avoid delays and ensure the effective use of time at trial.

“[T]he Chamber is subject to a quadruple obligation. We have to ensure the respect of the rights of the defense… We have to avoid all delays and guarantee optimal use of time. The Chamber has to ensure that the proceedings, which are public, [are] legible, coherent and understandable. The Chamber has to ensure that the trial is fair,” the Presiding Judge noted.

The Presiding Judge also recalled that, based on jurisprudence from the International Criminal Tribunal for the Former Yugoslavia, the Chamber had demanded that the prosecution reduce the length of its case from a proposed 300 hours to 120 hours. The prosecution complied with that decision, and the Chamber made similar demands of the defense teams.

In particular, the Court suggested that the defense reduce the number of hours dedicated to the direct examination of witnesses and the number and order of appearance of the defense witnesses. Lead Counsel for Katanga suggested that reducing the number of hours for witness testimony should not be a problem. The Katanga defense lowered its hours for examination of witnesses to 90. The Ngudjolo team cut the proposed number of hours in half, to 100 hours for examination-in-chief.

This means that the case could still take 380 hours for defense witnesses, or approximately 10 months, not including time for questions from the legal representatives, judges or witnesses called by the judges. The trial therefore could last until early 2012.

Order of Defense Witnesses

The witnesses of both defense teams generally fall into three general categories: witnesses who will challenge the credibility of prosecution witnesses (this is the largest category); witnesses in positions of responsibility, and four witnesses currently detained in the DRC (grouped together because of logistical difficulties in securing their transfer to the Netherlands). Ngudjolo’s defense will also call an expert witness and Katanga’s defense will call a witness who is a defense investigator. Finally, Ngudjolo will testify, and Katanga may testify.

The Trial Chamber prepared a suggested schedule for the appearance of the defense witnesses, which had the Katanga investigator testifying first, followed by the four witnesses who are currently in detention in the DRC. The credibility witnesses of both Katanga and Ngudjolo would testify in the same period (normally, one defense team would call all of its witnesses and then the other defendant would call its witnesses), with the Katanga credibility witnesses appearing first. This would be followed by Katanga’s responsibility witnesses, and then Ngudjolo’s responsibility witnesses. Then Ngudjolo’s expert would testify, followed by the possible testimony of Katanga and finally Ngudjolo.

The defense teams strenuously objected to this proposed schedule.

Hooper took issue with the suggestion that the witnesses of the two teams be mixed together at certain stages. “I represent Germain Katanga … There happens to be another trial, that of Mathieu Ngudjolo, going on at the same time. That wasn’t our request or our wish. It was done for convenience sake,” Hooper submitted.

“I don’t know of any other trial at any of the various ad hoc institutions and, of course, there is precious little precedent here, that has sought to mélange the witnesses in that way,” Hooper said.

Moreover, Hooper argued, the defense has a right to frame its own case and faces logistical difficulties in scheduling its witnesses. The defense team suggested that it would be problematic to comply with the judges’ request and it could lead to delays in their case.

Ultimately, however, after reviewing the judges’ proposed schedule in more detail, the Katanga defense submitted, “we’ve managed to accept that [the judges’ proposal] could be a workable solution.”

The Ngudjolo defense team also disagreed with the judges’ suggested order of calling witnesses, for the same reasons as the Katanga defense. The Ngudjolo team did not concede that the schedule could be a workable solution.

In a decision following the status conferences, the judges dropped their suggested order of witnesses, allowing the defense teams to present their cases one after the other (Katanga will call all of his witnesses and then Ngudjolo all of his). The judges did request that the two defense teams submit a new list of the order of witnesses by March 21, 2011, in particular requesting the parties to group credibility witnesses together and responsibility witnesses together, for the sake of coherence.

Will Katanga Testify?

The Trial Chamber asked the Katanga defense team to tell them whether Katanga will testify.

Hooper objected to this request. He argued that the decision to testify can be made at any point in the trial. He reminded the Judges that Katanga has no duty to give evidence, but should reserve the right to testify until after he has seen the evidence of his witnesses and upon the advice of his counsel.

The Katanga defense team was also not able to state whether Katanga would testify in his own defense. The defense insisted that Katanga be able to hear the evidence of his witnesses before deciding whether to testify.

Agreed Facts

The judges also requested the parties to agree on facts about which is no longer any “real disagreement.”

The Presiding Judge asked the parties to reach such an agreement so that the Chamber could limit the issues it must decide.

“Given that a certain number of facts do not seem to be disputed,” such an agreement would “give us the possibility to focus on the key issue of the criminal responsibility of the two accused persons,” Presiding Judge Cotte explained.

The parties were ordered to file agreed facts by March 30, 2011.

After hearing submissions from the parties on these issues, the judges adjourned trial, which is scheduled to begin again on March 23, 2011. In an order from the Court filed on March 15, 2011, the first five witnesses to testify will be 134, 136, 236/ 11 (a witness common to both defense teams), 228, and 350.