Scholarly Calculations

Before the military trial resumes on 18 November, the prosecutor has asked the judges to limit the length of cross-examinations by the defence. After three weeks spent questioning the prosecution's expert witness, Alison Des Forges, in September, the military trial will resume on 18 November with cross-examinations by defence lawyers. Of all the counsels representing the four co-accused, only Raphael Constant, counsel for Théoneste Bagosora was able to conclude his cross-examination at the end of September. Will the lawyers for Anatole Nsengiyumva, Aloys Ntabakuze and Gratien Kabiligi have time to ask all their questions in the next session, which ends on 28 November, given that Alison DesForges has indicated that she will only be available until the 22nd? Given the amount of time taken by prosecutor Eboe-Osuji - two weeks - and by counsel Constant - a week - this seems highly unlikely. Yet the new head of the prosecution team in this key trial, Barbara Mulvaney, seems adamant that this will be the case, and is proposing an unusual method to achieve this objective. On 17 October she filed a motion to the judges of trial chamber III aiming to limit the length of cross-examinations of Alison DesForges.

« Equal Terms »
To do this, the prosecutor is relying on the principle of « equal terms », which she interprets in her own fashion, arithmetically. As she states in her motion, the principle, which according to her is enshrined in Article 19 of the tribunal's statute concerning a fair trial, provides that the prosecutor and the defence should be treated equally before the court. Consequently, the prosecution and defence must be allowed an equal amount of time to question and cross-examine a witness. To justify her request to limit cross-examinations, the American prosecutor included in her motion a methodical count of the time and space given over to questioning the expert witness. « At the end of the first week, on 5 September, the hearing generated some 11,070 lines of transcriptions, » that is, 369 pages, in which the answers of Alison DesForges « only made up 174 lines, about 6 pages, which is well under thirty minutes of real testimony, » after three days of debates over her status as an expert. The prosecutor continues: « By the end of the second week, the witness, in her replies, provided 2,089 additional lines of transcriptions out of a total of approximately 12,800 lines produced in that week. Her replies constituted some 69 pages of transcriptions, which is a little more than three hours of real testimony by the witness during a week when the court sat for 19 hours and 32 minutes. » Moreover, during the cross-examination led by Raphael Constant at the end of September, « the witness replied to about 1,165 questions put by the defence, » compared to 581 during the prosecutor's questioning.

Judges' Laxity
If the prosecutor is to be believed, the paltry amount of time the prosecution was able to devote to questioning its witness can be attributed to the defence team, and its frequent objections. To back up her motion, Barbara Mulvaney was careful to cite the repeated warnings given to Mr. Constant by President Williams, imploring him not to drag out his questions. However, she failed to mention the same reprimands addressed to prosecutor Eboe-Osuji during the twoweek questioning. Of course, she also did not mention the fact that such time wasting could not have happened if it were not for the laxity of the judges running the trial in courtroom III, in spite of their announcement at the start that they would not let themselves be overwhelmed. In effect, during the questioning of Alison DesForges, President Williams announced that the expert witness would not need to return in November, only to declare several times later on, in a worrying avowal, that he was « lost » during prosecutor Eboe-Osuji's arguments. Indeed, the latter's questions were often very - even overly - general and they pertained to documents not contained in Alison DesForges' report. But these documents could only be examined with the judges' consent...

Special Interpretation
Barbara Mulvaney's scholarly and somewhat hilarious calculations are founded on a special interpretation of the principle of « equal terms »: defence lawyers should, in the form of a « joint cross-examination », share the time used during the prosecutor's questioning, rather than each one having this amount of time. Anticipating that the defence would not be able to decide on how to divvy up a joint cross-examination, the prosecutor proposes, out of a concern for « good administration of justice, » that the chamber grant Kabiligi's defenders one day's cross-examination and two days each for the counsels representing Nsengiyumva and Ntabakuze. The defence lawyers would thus be able to conclude their cross-examination on 22 November. The remaining five days would allow the defence « without a doubt the chance to devote enough time to develop any reasonable line of questioning during these cross-examinations. » This brings the total to « 50 hours of hearings, which is well above the 35 hours given to the prosecution during its principal questioning of the witness, including the long objections raised by the defence, » said the prosecutor, in a new fit of feverish calculations.

Prosecutor Told to Face the Consequences
This was too good a chance for the defence to miss. It immediately countered the prosecutor's cavalier manoeuvre, marshalling, predictably, the argument of the violation of the accused's fundamental rights. In his motion filed on 23 October, the lawyer for Aloys Ntabakuze, counsel Tremblay, gave his version of the events, which began to resemble a lesson in law. « Equal terms should actually mean that each defence team has the right to a period of time equal to that which the prosecutor managed to obtain. » He also harshly criticised the prosecutor's scholarly calculations: « This purely technical and mathematical approach is not helpful to the tribunal because it overlooks the contents of the questions and replies. A reply is not judged by its length but by its contents. » Finally, he suggested that Barbara Mulvaney face up to her own team's failings: « The prosecutor made a strategic choice to proceed in a manner which is, to say the least, unusual with an expert witness, and as a result, he has to put up with the inconvenience caused by this strategy. » Counsel Degli, the lawyer for Aloys Ntabakuze has not yet filed his response, but counsel Ogetto, representing Anatole Nsengiyumva denounced the motion as « frivolous » and « unfounded in law...the prosecutor has introduced the concept of »equality« in her motion but in an erroneous manner. » Referring, like counsel Tremblay, to Article 82 of the rules of procedure, he argued: « the prosecutor must be reminded that each accused in a grouped trial must be accorded the same rights as if he were being tried separately. » The prosecutor appears reluctant to be bothered with this basic principle, one that unfortunately does not explain the real reasons behind the disastrous and terminal pace that the judges have accepted and encouraged since the start of the Military trial.