On seeing the Accused, my reaction is visceral. I study him intently as I have apparently already convicted him in my mind. To me, he is Taliban – one of the many that have planted IEDs and taken pot shots at US soldiers and Marines. This reaction seems quite normal to me despite the fact that I’m a lawyer and have been steeped in the principle of innocent until proven guilty. My saving grace in this gut reaction is that I was a mere observer rather than a participant (although I’ve never believed this principle to apply to prosecutors as they shouldn’t bring a case unless they’re convinced that the accused is guilty).
The Accused is a man about my age. He stands about 5’9” and is of medium build, perhaps about 165 pounds or so. His skin is a brown darkened by the hot, Afghan sun. He wears the traditional, long, unkempt beard of the kind worn by the Taliban and forced upon their subjects. The calluses on his hands indicate an occupation involving manual labor. He is wearing a tan, wrinkled jumpsuit, black sandals, and a white taqiyahi or pakol, a brimless hat typically worn to express one’s belief in Islam (or so I’m told). Around his ankles he wears cuffs attached to a chain just long enough to permit him to walk. A sturdy, wide, nylon belt is locked to his waist. Nylon straps, approximately two feet long, attach his wrist cuffs to the belt while still allowing some movement of his arms. This permits him to move in and out of the courtroom and sign documents without giving him the ability to pose a physical threat to those around him. As I study him he looks at me, his dark eyes empty of feeling. He shows no shame, no remorse but neither does he show hostility. He is expressionless.
The courtroom is a small room in a fairly non-descript building. On the wall at the front of the room, is a large Afghan flag. Four polished, but somewhat distressed tables are arranged in rectangular form. The tables are barren of any material; no pens, no paper, no trial folders. A red Afghan carpet occupies the area between them. The larger of the tables is placed at the front of the room and has three chairs for the panel of judges. At the other end of the room, directly across from the judge’s table is the table for the defendant, which has chairs for him and an interpreter. The sides of the rectangle consist of tables for the prosecutor, or saranwali, and the defense attorney. The back of the room has chairs for the audience and a desk for the court interpreter. There is no court reporter.
The Afghan criminal justice system is a three-tiered court system. The primary court is where the initial trial takes place. Once a verdict has been announced, either the defense or the prosecution can appeal to the second level, the Court of Appeals. The appellate court conducts a de novo review of the case meaning it looks at the case anew and can dismiss the case and increase or decrease the sentence. Once the appellate review is finished, a case can then be appealed to the Supreme Court wherein that court’s review is limited solely to legal issues to ensure compliance with the law.
After spending quite a bit of time reading and working through the Afghan Criminal Procedure Code in preparation for submittal to the Afghan legislature, I finally got a chance to see it in action. I took a trip up to Bagram (about a 15 minute flight from Kabul) to see the Justice Center in Parwan, which is where national security cases (i.e. terrorism; insurgency) are handled. Afghanistan’s legal system is based on civil law and, therefore, will be foreign to most US attorneys. However, it is by far the most common legal system in the world. Having no real experience with civil law prior to coming here, I cannot speak to Afghanistan’s version of it as compared to others. Perhaps some of my attorney friends from civil law systems can post a comment as to how Afghanistan compares from a procedural perspective.
We stand as the three judge panel enters the room. Once seated, the senior judge opens court in the name of Allah and nods for the prosecutor to begin. The prosecutor stands and recites the indictment, periodically stopping to point to evidence in support and answer questions from the judges. During this prosecutorial presentation, the Accused is allowed to speak and, in this case, does so. In fact, the prosecutor and defendant engage in light argument. “Do you have any proof against me?” asks the Accused. “Just you wait and you’ll hear,” answers the prosecutor. As the prosecutor goes through the indictment, I’m quite surprised that (1) the Accused speaks for himself rather than through his attorney and (2) he and the prosecutor basically argue the case with the judges periodically interrupting to ask questions.
Roughly 30 minutes into the trial, the defense attorney finally speaks. He makes a brief statement that basically reiterates what the Accused has already said. The Accused uses this opportunity to complain about his poor treatment in the “black prison” (e.g. cold, little food, etc.) and the dog bites he received during his capture by US troops (okay maybe I do like dogs). The judges question him on this and then marvel as he shows them the dog bites. The questions from the judges come for another few minutes and the trial is over.
The trial lasted 45 minutes during which the defense attorney spoke for only about three. The Accused essentially argued his own case. Now this may seem strange to those familiar with common law systems, but perhaps there is more to this than meets the eye. The judges get all the documentation, evidence and the indictment prior to the actual trial. So, it seems to me that the trial is merely an opportunity for the Accused to say his piece. Here, I’m still a bit confused and I’ll need to consult more with the court’s US advisors to get a better understanding of the pre-trial procedure.
In this case, the Accused was charged with possession of various weapons (pistol, AK-47, AK-47 magazines with ammo, a mortar stand (i.e. the metal legs that attach to the tube), and 600,000 Afghanis (Afghan money, approximately $13k). He argued that the pistol was for protection and the AK-47 stuff was old and left over from the war against the Soviets; I didn’t catch what he said about the mortar stand). I thought he did a pretty decent job. However, as he got deeper into his story and provided way too much information, he began to contradict himself. His luck was holding, however, and neither the judges nor the prosecutor pointed out these inconsistencies. This is the main concern with the Afghan legal profession. Critical thinking is apparently not taught in law schools resulting in an inability to thoroughly work through legal issues.
So, was my initial reaction to the Accused accurate? Of course it was. After deliberating for approximately 20 minutes, the judges reconvened and announced a guilty verdict with a sentence of two years. Since the charges involved only possession of weapons, I thought this was fair. The State Department lawyers I attended the trial with disagreed and thought 4-6 years was a more accurate sentence. We were told afterward that the average sentence was 4.4 years. However, the sentence is really irrelevant from a rule of law perspective. What really matters is the process and, although it is much different than the common law system I am used to seeing, it does seem fair. Afghan judges and lawyers participate in trails against Afghan defendants and the process is open to all. In fact, from the perspective of the Accused, there is little room for complaint. The only persons with a complaint would be the judges and prosecutors as the literally risk their life doing their job as they currently have no protection to and from work. They are the true heroes of Afghanistan and should be admired for risking all in the name of law.
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