Trial And Error In Baghdad
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
It is jarring to watch the trial of Saddam Hussein. Even if the translation from Arabic to English were much better than it is, even if we could understand all the cultural nuances that abound inside that secured courtroom half a world away, the pace, process and decorum of the trial does not come close to comporting with our notions of what a criminal trial should look like.
Tuesday's proceedings, for example, ended with most of the major players screaming at each other in court. Saddam told the judge to "go to hell" after complaining about mundane things (his clothes) and serious things (like the court's jurisdiction).
Witnesses and defense attorneys screamed and swore at one another before the session ended and even the normally subdued chief judge, Rizgar Mohammed Amin, lost his temper and began to yell.
Think "The Three Stooges Go On Trial for Crimes Against Humanity" and you get somewhat of an idea of how chaotic things got in court today. Another few sessions like this one and even the O.J. Simpson criminal trial will seem solemn and dignified by comparison.
The judges, especially Amin, seem to have lost control of a trial they absolutely must control in order to bridge the gap between the chaotic legal system that now exists in Iraq and the dispassionate one that must emerge.
Saddam is growing increasingly belligerent in court. Defense lawyers for him and his co-defendants are growing increasingly disrespectful of the court's authority while the judges themselves seem to be increasingly unsure and indecisive about their own rulings and the extent of the law's power. Instead of the judges putting on a "show" of strength and control in this "show trial," it is Saddam and his gang who are putting on a "show" of chaos and anger.
With so much riding on public perceptions of the trial, with so much at stake legally, politically, militarily and historically, the devolving in-court dynamic is not a good sign.
It is entirely appropriate in this trial for the judges to allow the defendants and their lawyers to raise legal arguments and even to make political points about the jurisdiction of the court even to hold the trial.
As far as I am concerned, the more Saddam rants and raves now about these issues the less support he will have following the trial when he claims that he was not given his proper due in court.
But it is not appropriate for these outbursts to overcome the essence of the trial, which is what now is beginning to happen inside the courtroom inside the Green Zone inside a beleaguered Baghdad.
Saddam should get a voice, even a loud voice, in the trial process. But his loud, shrill voice should not be permitted to shout down that process. It is important for the world to see that Iraq can and will offer its former despot more justice than he was willing to mete out when he was in charge.
But it is even more important for the world to see that in the new Iraq no man, not even Saddam himself, is above the law.
When he starts screaming at them, the judges must say "no" to Saddam more often and more decisively. They must be ready and willing to use security officials to maintain decorum inside court. If that means that Saddam gets dragged out of the courtroom one day then so be it. He is entitled to respect — not deference — in this proceeding.
Besides, it won't be the end of the world if he is reminded in court that even in defiance he must abide by simple and unimposing rules of etiquette. Moreover, the judges should work more diligently with defense attorneys before the day's proceedings begin in order to minimize or even avoid the ticky-tack issues that seem to crop up more than they should.
If Saddam has a complaint about his underwear, for example, which he did on Tuesday, he ought to be required to raise the issue before the gavel comes down to start the day.
Meanwhile, the judges in this trial should absolutely prohibit defense attorneys from yelling at or cajoling witnesses and demand that the witnesses themselves talk to attorneys only through the normal give-and-take of direct and cross-examination.
If a witness in an American court were to swear at a defense attorney, which is what happened today in Baghdad when Larry, Curly and Moe finished their days in court, that witness would be fined faster than you can say "civil contempt." And if a defense attorney were to blast a witness for any reason that attorney would be disbarred faster than you can say Johnnie Cochran.
The world understands that Amin and his colleagues on the bench were not fully prepared for the task to which they have been assigned. It acknowledges that it is groundbreaking for all to see Saddam in the dock. And it is willing to put up with a certain amount of Saddam's bully shtick to get through this trial.
But none of that excuses what the judges permitted to happen in court Tuesday. None of it justifies their own losses of composure and temper. In many ways, Amin and his colleagues are on trial almost as visibly as are Saddam and his colleagues.
And, right now, the bad guys are pulling the good guys down into the chaos of legal lawlessness that was supposed to have been toppled along with Saddam's old regime.
By Andrew Cohen