CHALLENGES TO WITNESS’S CREDIBILITY CONTINUE

July 22, 2009

By Charles Jackson, Legal Intern with the Documentation Center of Cambodia
and Candidate for J.D. 2011, Northwestern University School of Law

Prak Khan, a former interrogator at Tuol Sleng prison (S-21), returned to
the witness stand today and continued to provide details about the
operations of the prison, which was run by the Accused Person, Kaing Guek
Eav (alias Duch).

The Co-Prosecutors seemed to recognize that the witness’s credibility may
have been damaged by inconsistent statements given the day before. They used
their time to clarify details of Prak’s testimony. Co-Prosecutor Tan
Senarong began by introducing a map of S-21 and asking the witness to show
the court specific locations mentioned yesterday, including where
interrogations took place, where blood was drawn from prisoners, and where
he saw a baby executed by a superior officer. At one point, Co-Prosecutor
William Smith introduced a series of film clips from the documentary “S-21:
The Khmer Rouge Killing Machine”, which highlighted an interview Prak Khan
had given previously about his experiences at S-21. To help direct the
witness’s testimony, Smith played each clip and then asked Prak if his past
statements were accurate. This tactic proved beneficial, as the prosecution
was able to develop a more consistent understanding of Prak’s testimony.
However, it seemed unclear whether Prak actually remembered the events he
testified to or whether he was confirming the statements to avoid appearing
untruthful.

After the Co-Prosecutors finished, Civil Party Lawyers began a line of
questioning that attempted to portray Duch as a leader who maintained
absolute control over the actions of his subordinates. In response to their
questions, Prak discussed how he was only allowed access to the dining hall,
prison, and interrogation rooms at S-21 because of Duch’s strict rules
limiting the staff to the areas where they worked. Prak also said that, in
the three days prior to the Vietnamese entering Phnom Penh in January 1979,
the interrogators did not receive any orders from Duch and therefore spent
their days “sitting around doing nothing”.

However, Civil Party Lawyer Martine Jacquin may have undermined the
prosecution’s efforts when she chose to use her time with the witness to
question Duch instead. When asked about Prak’s statements, Duch attacked the
witness, saying that some of the details were “fabricated”. President Nil
Nonn then stepped in and warned Duch not to “pressure the witness” and to
“behave properly”.

In the second half of the day’s proceedings, the defense counsel sought to
diminish the witness’s credibility by attacking Prak’s basis of knowledge
concerning his testimony. In response to questions from Defense Council
Francois Roux, the witness admitted that some of the details in his
testimony came from watching previous witnesses testify at Duch’s trial.
Additionally, Prak admitted that he had been hospitalized from 1978 until
the Vietnamese liberation in 1979, and, therefore had not personally
witnessed anything at S-21 during that time.

The defense used the remainder of its time to refute the notion that S-21
staff strictly adhered to Duch’s orders. Roux introduced another S-21
interrogator’s notes from one of Duch’s training sessions that stated
interrogators should rely on “political pressure” first and only use torture
as a secondary measure. Roux then contrasted this with statements made by
the witness that indicated torture was the primary method of interrogation
used by the staff. In response, the witness confirmed that Duch in fact had
instructed guards to rely first on “political pressure” and propaganda.

Procedural Dispute Interrupts the Trial Chamber

When the defense concluded, the court introduced the next witness, former
S-21 prison guard Kork Sras. In response to questions from President Nil
Nonn and Judge Thou Mony, Kork briefly outlined his experiences during the
Khmer Rouge period. Kork explained that he first joined the revolution in
1973 as a member of Division 12. After the Khmer Rouge took control of Phnom
Penh, he was moved to Ta Kamao prison and later transferred to S-21 to work
as a guard.

Kork’s testimony, however, was suspended when Co-Prosecutor William Smith
and Civil Party Lawyer Silke Studzinsky both made requests to the court
concerning the procedures for questioning witnesses. Smith addressed the
issue of whether parties to the court could question the accused in the
middle of questioning a witness and argued that such procedures allow for
the accused to intimidate and undermine the witness. Smith’s request was in
response to the decision allowing Civil Party Lawyer Martine Jacquin to
question Duch in the middle of Prak Khan’s testimony earlier in the day.
Smith requested that the court alter their procedures to prevent such
practices in the future. In response, the defense argued the prosecution was
“afraid of an interactive dialogue”.

After the prosecution’s request, Studzinsky addressed the limited time
allotted to civil parties for questioning and requested that the civil
parties be able to submit any questions they are unable to ask a witness to
the judges, who could then consider whether such questions should be put to
the witness. The defense strongly objected, with Roux accusing Studzinsky of
attempting to circumvent the judges’ decision to limit the civil parties’
time.

The court agreed to consider both requests and issue decisions on Monday,
July 27, 2009.