Mr. Aimé Kilolo Musamba

Bemba was represented in this Main Case at the ICC by Aimé Kilolo Musamba (Kilolo), a lawyer from DRC, who is also a French speaking member of the Brussels Bar.

In November of 2013, Mr. Kilolo and three other members of the Bemba defense team were arrested. Bemba was already in custody on the main case. Mr. Kilolo remained in custody in The Hague, seat of the ICC, for the next 11 months. Kilolo and the others were charged a few weeks later with offences against the administration of justice. Essentially, this case was about witness and evidence tampering.

Trial commenced in September of 2015 and concluded the following May. The judgment convicting all five accused was delivered in October 2016. Mr. Kilolo, specifically, was convicted of corruptly influencing witnesses, presenting false evidence and inducing false testimony.

At this point, Mr. Kilolo requested and received the appointment of Michael G. Karnavas as his counsel for sentencing and any potential appeal. Karnavas is a longtime friend and colleague of Popper & Yatvin partner, Alan L. Yatvin.

The two met while teaching trial advocacy at the Cardozo School of Law in New York in the late 1980’s, when Yatvin was a Philadelphia Defender and Karnavas was an Alaska Public Defender.

Michael G. Karnavas

(( Karnavas has since gone on to develop an international criminal law practice, and is considered one of the preeminent defense lawyers in the field)) In putting together the Kilolo defense team, Karnavas invited Yatvin aboard to serve as Senior Legal Consultant. Karnavas believed that Yatvin’s experience as an active and experienced trial and appellate lawyer, as well as his experience representing lawyers on matters related to ethics and professional responsibility, coupled with his international criminal law experience at the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, and the so-called Khmer Rouge Tribunal (Extraordinary Chambers in the Courts of Cambodia) in Phnom Penh, Cambodia, made him a valuable addition to the team.

Alan L. Yatvin argues before the ICTY in 2006

Sentencing was briefed and argued, and the judgment of sentence was delivered on March 22, 2017. Mr. Kilolo was sentenced to two and one-half years of imprisonment, with credit for time served and the remaining period of imprisonment suspended. He was also ordered to pay a fine of 30,000 Euros.

The Prosecutor appealed all the sentences, while the co-accused appealed their convictions. Mr. Kilolo did not appeal.

After extensive briefing, the ICC Appeals Chamber issued its judgment in March of 2018, finding that there was no authority for suspending sentence under the ICC’s legal framework and reversing certain of the grounds on which the sentences were based, but vacating one-third of the convictions. The matter was then remanded to the Trial Chamber for resentencing.

The Kilolo defense team briefed the issues on resentencing and prepared for oral argument on re-sentencing.

Then, on June 8, 2018, after a 10-year odyssey of proceedings in the main case, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Bemba was acquitted by the ICC Appeals Chamber of all charges. Simply put, the basis of the acquittal was grounded in the Prosecutor’s failures in charging and presentation of evidence.((Responding to the many critics on the soundness of the appeal judgement, Karnavas posted an analysis of it on his blog)) The ICC Prosecutor, Madam Fatou Bensouda, responded with a public statement, criticizing the Majority for departing “from the traditional model of appellate review of factual errors,” replacing it “with new, uncertain and untested standards,” and for departing “from the Appeals Chamber’s previous jurisprudence, as well as international practice, in relation to the manner in which the Prosecution ought to charge cases involving mass criminality.” The criticism by the Prosecutor was rejected by the President of the Court, who reminded the Prosecutor that:

It will continue to be the case that all judgments and decisions by the judges of the Court are taken in accordance with the fundamental principle of judicial independence, consistently with the solemn undertaking of each judge to perform his or her duties ‘honorably, faithfully, impartially and conscientiously’… When judges acquit or convict, it is because those core principles direct them to do so. And it is hoped that it is consideration of those core principles that should guide any post-judgment statements by a party or participant in the case – be it the Prosecutor, the Defence or Counsel for Victims

In a further attempt to blunt the criticism of the Prosecution in the Main Case, on the eve of the scheduled sentencing hearing, the Prosecutor made submissions in support of resentencing asserting that Bemba’s acquittal by the Appeals Chamber was a result of the witness tampering conduct. The re-sentencing hearing was held on July 4, 2018, after which Mr. Kilolo and the other convicted persons were given leave to respond to the Prosecutor’s submission.

On September 17, 2018, the Trial Chamber issued its judgment of sentence. Immediately following the re-sentencing judgment, Mr. Karnavas described how gratified he was by the sentencing judgment:

As I sat there listening to the presiding judge read a summary of the judgment, I was surprised and pleased to hear the chamber adopting many of the arguments we had made on key issues in our briefs and at oral argument.

Specifically, the Trial Chamber completely rejected the Prosecutor’s argument that Bemba\’s acquittal by the appeals chamber in the main case was a result of the witness tampering conduct, stating that the acquittal of Bemba in the main case appeal “has no impact on the sentences to be imposed” and that the “Prosecution manifestly fails to establish any causation between what the Three Convicted Persons were convicted of and the outcome of the Main Case…”¹. Additionally:

The Chamber is not persuaded by the Prosecution’s arguments to the extent that, now that the suspended sentences are not possible, none of the considerations justifying them have any further merit. The Chamber based its decision to suspend sentences on Mr Kilolo and Mr Mangenda’s individual circumstances – their personal circumstances, good behaviour throughout the proceedings, and the consequences of incarceration on their families/professional life. There is no indication that any of these individual circumstances no longer apply. The Kilolo and Mangenda Defence instead offer further proof bolstering the Chamber’s original findings.((Re-Sentencing Judgment, ¶¶ 51)).

The Trial Chamber also rejected the Prosecutor’s argument that the reversal of convictions on 14 of the charges should have no effect on the sentences because the conduct overlaps. The Trial Chamber explained:

The Chamber did not mechanistically conclude that the overlapping conduct led to the Article 70(1)(b) convictions having no impact on the joint sentence. Every conviction mattered in the Chamber’s individualised determinations.

Accordingly, the Trial Chamber found that because it had considered the cumulative effect of the convictions in imposing the original sentence, it was required to accord some weight to the fact that 14 of those convictions have been reversed.

Finally, the Trial Chamber considered the fact that even though the suspended period of incarceration no longer had any legal effect, the fact that Mr. Kilolo had been on de facto probation and had abided by all the terms of his suspended sentence, and behaved constructively and cooperatively. These, the Trial Chamber concluded required consideration as part of Mr. Kilolo’s individual circumstances, an essential element of sentencing under ICC law.

As a result, Mr. Kilolo was sentenced to the 11 months incarceration he had already served, and the same fine imposed in 2017. Time served sentences and the same fines were also imposed on the others.

The Prosecutor has 30 days from the date of the sentencing judgment to decide whether to appeal, but for now, the core rationale of the original sentence is preserved, while Mr. Kilolo, who has paid the debt for his conduct not just through incarceration, but in many other financial, personal and professional ways, is free to move on with his life.

In commenting on Yatvin’s contributions to the appeal and resentencing, Karnavas stated:

Alan is a lawyer’s lawyer. His work in testing our assumptions, insisting on clarity in our prose, and adding punch to our arguments, was an invaluable element of our success in obtaining and preserving an appropriate sentence for Mr. Kilolo.

Update 21 October 2018:  The Office of the Prosecutor allowed the deadline to pass without filing an appeal of Mr. Kilolo’s sentence.

1. Re-Sentencing Judgment, ¶¶ 22, 25

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Informal Opinion: Representing ‘Those People’ Achieves Justice

By Alan L. Yatvin

“How can you represent those people?” In three decades as a criminal defense attorney, I had heard that question many times — at cocktail parties and from prosecutors, police, victims, law students, and once even from a judge. It comes with the territory. I understand that people accused of crimes are often automatically condemned, while their lawyers are regarded with contempt. However, as I walked along that steamy January afternoon, I was shocked by the source of the question. This time it was my wife, Laura, prompted by a just completed hour-long audio tour of a former fruit orchard on the outskirts of Phnom Penh, Cambodia.

We were at Choeung Ek, the most infamous of the killing fields of the Khmer Rouge. It was there that Pol Pot’s regime executed 20,000 people. The victims were those suspected of connections with the former government or foreign governments, as well as professionals and intellectuals, members of various Cambodian ethnic groups and, in a cannibalistic frenzy, even regime members accused of some act of disloyalty. The Khmer Rouge death toll from starvation, sickness and execution has been estimated at two million. At Choeung Ek, men, women and infants were slaughtered night after night as martial music blared to cover their cries, and then they were buried in mass graves.

Initially, Laura had not wanted to go to the killing fields. We were on vacation in Southeast Asia, there were many beautiful and exotic places to see, and she knew the story of the horrors of this chapter of Cambodian history. But as we were planning our trip, a friend said, “You have to go. It would be like going to Israel and not going to the Holocaust Memorial at Yad Vashem, or skipping the Anne Frank House in Amsterdam.” I insisted that the visit was necessary to understanding Cambodia and its people today.

Yatvin takes Bar oath before the Appeal Chamber of the Court of Cambodia

This was actually my second visit to these killing fields. I had been there 18 months earlier while in Phnom Penh on business. Along with my work as a Philadelphia criminal defense lawyer, first as a public defender and then in private practice, that visit was part of the reason for Laura’s surprise question. I had been in Cambodia as appointed interim counsel for a suspect before the Extraordinary Chamber of the Court of Cambodia (ECCC), also known as the Khmer Rouge tribunal. My elderly client was a former military officer.

That was not my first war crimes case. In 2006-2007 I spent 18 months flying between Philadelphia and The Hague, where I represented an accused Bosnian Serb before the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY prosecutor had described my client as being perhaps the person most individually responsible for killings in the entire Bosnia conflict. He changed counsel before trial, where he was convicted and sentenced to life in prison.

Thus, this was no stranger at a party expressing shock and distaste for my profession. This was someone who well knew the nature of my work and had lived with it, and me, for decades. Since we were just beginning our three-week vacation in Cambodia and Laos, we had plenty of time to discuss the matter.

Criminal defense is a significant, but not exclusive, part of my practice, which also includes representing victims of police misconduct and children with disabilities. The reality of my core criminal defense practice is that some of my clients have committed a crime. Yet all too often they have been charged with crimes disproportionate to their conduct, their prosecution has been procured by illegal or unconstitutional police conduct, or overzealous prosecutors are seeking excessive or inappropriate punishment. Sometimes my clients are just plain innocent. Often, I have no idea whether they committed a crime.

But what I think about my client or the charges does not matter. I am not the jury who decides guilt, nor am I the judge who applies the law or determines punishment. My job is to do everything in my power to make sure that at the end of the process, my client has been treated fairly, the prosecution has been put to its burden of proof and the law has been followed. International criminal law expert Michael G. Karnavas has said: “The results at the end of the trial will be meaningless unless a robust defense is afforded to the accused.”

Meeting with Roosevelt and Stalin in Yalta in 1945, Winston Churchill urged summary execution of selected Nazi leaders and imprisonment of others without trial. This was rejected in favor of the first international war crimes tribunal. In his opening statement the lead Nuremberg prosecutor, U.S. Supreme Court Justice Robert Jackson, told the judges: “Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.”

I represent “those people” because all people must be ably represented by lawyers who do not judge them or decide their guilt based on their own views; otherwise there is no justice. The hushed courtrooms of the federal courthouse across from Philadelphia’s Independence Hall and the high-tech courtrooms of The Hague’s tribunals are a world away from Cambodia’s killing fields. But it would be a betrayal of the memory of those buried in that now peaceful orchard to allow a legal system, a government, or the mob to decide in advance that some are so guilty that they are unworthy of the legal protections and representation those victims were denied.

Pol Pot supposedly said: “Better to arrest 10 innocent people by mistake than free a single guilty party.” My mandate as a criminal defense lawyer is precisely the opposite, as expressed in this statement attributed in various forms to Voltaire, Benjamin Franklin, and Sir William Blackstone: “It is better that 10 guilty persons escape, than that one innocent suffer.” My wife, at least, now understands why I represent those people, even in Cambodia.

About the Author

Before entering private practice, Alan Yatvin served as an Assistant Philadelphia and Federal Defender. He concentrates his practice in criminal defense in state and federal courts, police misconduct litigation, and representation of special needs students. He is a director of the American Diabetes Association.

© 2017, National Association of Criminal Defense Lawyers™ (NACDL®), All Rights Reserved.

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In court and culture, ‘Miranda’ endures

Alan L. Yatvin is a partner at Popper & Yatvin in Philadelphia

On Jan. 31, 1976, Ernesto Arturo Miranda died of stab wounds suffered in a fight over a card game in a dive bar in Phoenix. His passing made for a few lines in papers across the country.

The mother of law professor Charles Whitebread clipped the story and sent it to her son with the note “Isn’t it a shame, after all he did for us.” What he did for us is lend his name to a landmark June 13, 1966, decision of the U.S. Supreme Court, Miranda v. Arizona.

In 1963, when Miranda was arrested in Arizona as a suspect in three rape/attempted-rape cases, suspects being questioned in police custody had the right to remain silent, and the right to an attorney even if they could not afford one. What was not so clear, though, was whether the police had to explicitly tell a suspect of those rights before questioning.

Miranda agreed to be placed in a lineup. Two witnesses identified him but were not certain. When he asked how he did after the lineup, the police allegedly told him not very well, whereupon Miranda confessed. He was convicted, and the Arizona Supreme Court upheld his 20-to-30-year sentence.

A volunteer lawyer for Miranda filed a petition for a writ of certiorari asking the Supreme Court to take the appeal. The justices agreed to hear Miranda’s case, along with cases raising the same issues from New York, California, and Missouri. Because Miranda’s appeal was listed first, the decision is known by his name. (If the court had listed the New York case first, police could be giving suspects their Vignera rights.)

The consolidated case drew more than a dozen briefs, running hundreds of pages. Ten lawyers argued for more than seven hours, over three days. Former Nuremberg prosecutor Telford Taylor argued for New York and, by special leave, for the attorneys general of 27 states, plus Puerto Rico and the Virgin Islands. Civil rights icon Anthony Amsterdam filed a brief on behalf of the ACLU.

On June 13, 1966, the second-to-last opinion day of the Supreme Court’s term, Chief Justice Earl Warren delivered the opinion of the 5-4 majority. The Miranda warnings were born. From that day forth, prior to questioning a suspect in custody, police read those now-familiar rights, containing the key elements of Warren’s decision:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

Like no other area of the law before or since, the Miranda warnings took off. They became part of standard police procedure nationwide, often routinely recited upon arrest, even when there was no intention to question. The warnings also quickly became part of the popular culture. A year later, the popular police series Dragnet featured Jack Webb’s Sgt. Joe Friday and his partner routinely reading suspects “their rights.”

In 2000, the Supreme Court considered whether to overrule Miranda. It is apparent from Chief Justice William Rehnquist’s opinion in Dickerson v. United States that he would not have sided with Warren’s 1966 opinion. However, unlike dissenters Antonin Scalia and Clarence Thomas, Rehnquist concluded that Miranda was deserving of stare decisis (Latin for “to stand by things decided”).

The chief justice noted that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” As even the National District Attorney’s Association conceded in a friend of the court brief: “[W]arnings are generally advisable when questioning criminal suspects, and should be embodied in police practices. . . .”

Certainly Miranda at 50 no longer has all of its vitality. If a suspect’s lawyer tells the police the client wishes to remain silent, police don’t have to let that lawyer into the room or stop questioning if the suspect has agreed to speak after Miranda warnings. Even if a statement is inadmissible due to a Miranda violation, some evidence obtained as a result of that statement may be admissible. A statement obtained in violation of Miranda can still be used to impeach a defendant who takes the stand in his own defense.

There is also an exception for public safety. In 2010, the Supreme Court decided a trio of cases further narrowing the rule of Miranda, declaring: A suspect’s request for a lawyer is good for only 14 days after release from custody; and police need not explicitly tell suspects they have a right to counsel during questioning. In the third case, the court stated that suspects must unambiguously announce to police that they wish to remain silent. Or, to paraphrase the irony noted in Justice Sonia Sotomayor’s dissenting opinion, a suspect must break his or her silence to invoke the right to that silence and stop police questioning.

Whitebread, the professor whose mother mourned Miranda’s passing, believed the Supreme Court would never reverse Miranda. On the 20th anniversary of Miranda, he said:
“Too many Americans watch television. Everyone knows that when they get arrested they have some rights. They might not know what they are exactly, but they know they have them. This court, no court, wants to be known as the court that took away America’s rights.”

After the conviction was reversed in 1966, the Arizona prosecutor retried Miranda with other evidence, including a confession to his live-in girlfriend. Miranda was convicted in the second trial. He served a total of 11 years in prison before being paroled. After his release, he allegedly got police officers to give him Miranda warning cards, which he supposedly autographed and sold for a few dollars each.

And the men suspected of stabbing Ernesto Miranda 40 years ago? Each was read Miranda warnings, waived his right to counsel and right to remain silent, and agreed to be interviewed by detectives.

Published: June 12, 2016 — 3:01 AM EDT The Philadelphia Inquirer

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Program attendees included ADC-ICTY members, interns and staff, as well as defence team members from the International Criminal Court (ICC) and the Special Tribunal for Lebanon (STL), staff of the ICTY/ICTR/MICT Registry, Prosecution and Chambers, and students from various universities around The Hague.

At the ADC’s General Assembly on November 9th, Alan was elected to his 5th term as chair of the ADC-ICTY Membership Committee.

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Alan shows Award to partner Howard Popper. Marshall Award recipient Alan Yatvin with Philadelphia City Solicitor Shelley Smith and partner Howard Popper. Marc Bookman, Executive Director of the Atlantic Center for Capital Representation, chats with David Rudovsky and Howard Popper.

Photo credits to Aaron Finestone.

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