The Appellate Court is located on the other side of the wooden partition placed in the middle of the room. It is a mirror image of the Primary Court. I’m told that I cannot attend the proceeding because I’m in uniform and the judges do not like a visible US military presence in the courtroom. This makes sense because it is an Afghan Court and it should have an Afghan face. The US military lawyers advising the court wear civilian attire when in the courtroom, but I was unaware of this requirement. To accommodate, I remove my uniform jacket and weapon. A US military lawyer gives me a civilian jacket and we hope the judge will not object. I’ve been yelled at by US judges, but I really don’t want to revisit this Afghan-style (visions of Judge (Col) “Midnight” Murnane begin to occupy brain matter).
Although we expect a full, three-judge panel, only two enter the room. No one is really sure why the third judge is absent as he’s been seen in the building. Both judges wear black robes with colored scarf-like material draped around their necks, hanging to the waist. The senior judge wears a white turban similar to the one worn by American Al Qaeda spokesman Adam Gadahn except that it doesn’t have a tail hanging down. It makes him look official, I think. Both judges have close-cropped beards – jet black for the younger, junior judge and salt-and-pepper style accentuating the apparent wisdom of the older judge. Yep, he definitely looks the part.
I glance at the Accused and am surprised not to feel the same visceral reaction as I did in the other court. He is dressed like the other guy I saw: tan, wrinkled jumpsuit, black sandals, white taqiyahi, chains on his ankles and a belt with straps securing his arms to his waist. The difference is his build and appearance. While the other guy looked healthy and strong, this guy is small, almost sickly looking. His face is gaunt, hair and beard more unkempt that typical – an almost scared look in his eye. As I examin him, I can’t help but think “this guy isn’t a threat.” I was pretty sure my 11 year old son could take him and positive my wife could. Then I learn of the nature of the threat he poses. He is a bomb-maker.
In the Primary Court, he was convicted, based on finger-print evidence, of making IEDs or Improvised Explosive Devices, the number one killer of Americans in Afghanistan. He received a four year sentence and was appealing, maintaining his innocence. A brief note on sentencing is in order here. While four years for making IEDs may seem low, it should be taken in context. Across Afghanistan, prosecutors (and judges) risk their lives just by doing their job. In an effort to give themselves some measure of protection, many prosecutors ask for more lenient sentences. I have no idea if this came into play in the case we’re discussing now, but the possibility is always there. Frankly, the security issue for prosecutor/judges is a very big deal and is a constant battle (more on that in the future as I’m working these issues). To provide context regarding the security threat, the judges and prosecutors at the JCIP (Justice Center in Parwan) all live in Kabul, about an hour or so drive away. Once they leave Kabul, there is one road they must drive. The chokepoint is a sharp turn about 20 minutes out from the court. This is the perfect place for the Taliban to attack them. As of now, they have no security whatsoever once they leave the JCIP compound. How was your commute today? I admire these guys.
The appellate process is similar to the primary court process in the sense that it is discussion-based, led by the judges and effectively a de novo review. A de novo review means the judges can review the primary court’s conclusions on both law and fact (see, read my blog, learn some law). During the trial, the prosecutor emphasized that the Accused had been arrested previously for bomb-making. In response, the defense attorney presented a letter from Coalition Forces indicating that he had been released the previous time without trial. This defense attorney used this letter to argue that his client was innocent the first time and, thus, it could not be used against him. The judge asked for the letter to be read in court (it was read in English and then interpreted). The letter essentially said that the Accused had been arrested based on probable cause and released due to lack of evidence – not the same as innocence. The judge has a difficult time understanding this and stops the trial to ask the Americans in the back to make sense of the letter. I was shocked to see this as I had never seen a judge invoke audience participation. I guess that’s better than not dealing with it.
The second problematic issue dealt with the fingerprints. The Accused, not his lawyer, argued that he could not be convicted because he was in jail at the time the IED was found. A flurry of activity ensues devolving into the lawyers and judges examining a calendar and court documents to determine arrest date and the date the bomb was found. None of them, including the finger-print “expert,” seems to realize that finger-prints have a pretty long shelf-life, particular when they are found on tape. This, for me, illustrated the inability to properly understand forensic evidence. The desire of the prosecutors and judges seems to be there; after all they risk their lives on a daily basis. However, training is inadequate. Despite the top-notch job being done by US military lawyers, paralegals, and other advisors, they cannot replace foundational training. Afghan prosecutors, judges and defense attorneys must develop an understanding of the various types of forensic evidence available and how to apply it in court. This must begin in law school and be reinforced through continuing education. The Afghan criminal justice system has problems, but thankfully, desire isn’t one of them.
I’m told that the JCIP is one of the better courts in the Afghan system. No doubt this is due to the work of its advisors. Judicial support, I’m told, significantly decreases the further one moves down the judicial chain from national level courts to district level courts. I’ll judge the veracity of this assumption on my visit to the Nangahar Province (east of Kabul on the Pakistani border).
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