Trial Chamber Hears Arguments on Counsel's Request to Withdraw

In contentious proceedings, the Milosevic Trial Chamber heard argument from Steven Kay on his request to withdraw as assigned counsel for the Accused. Kay told the Court he was putting it on notice that there was a 'fundamental flaw' in the proceeding. To continue representing a client who refuses to communicate with or instruct him violates the ethical codes under which he, as defence counsel, operates, Kay said. Any new counsel appointed over Milosevic's objections will find him or herself in the same position, he concluded.

The judges were quick to see that such a construction essentially nullifies the first part of the Appeals Chamber's order, which approved the Trial Chamber's action in appointing counsel to represent Milosevic, while overturning the modalities under which counsel was to operate. The order becomes 'unimplementable,' according to Judge Robinson. Under this view, if Milosevic refuses to cooperate with counsel, counsel cannot proceed because he would violate his duty of loyalty to his or her client. Effectively, it gives Milosevic control over whether counsel will be appointed to represent him or not. That was not the Appeals Chamber's ruling, Judge Bonomy declared. The higher court upheld the authority of the Trial Court to impose counsel on an unwilling accused where the interests of justice require it.

The judges seemed to fault Kay for accepting their assignment, knowing Milosevic's noncooperation was a decided possibility, then, when it materialized, arguing that it prevented him from continuing in the role. Judge Robinson asked whether Kay was saying that his acceptance of the assigned counsel role was conditional on a good relationship with Milosevic. Kay responded that the Court's direction that Assigned Counsel would take the lead in questioning with Milosevic only allowed to question witnesses afterwards on leave of the Court came as a 'complete shock.' At which point, Judge Robinson pointed out that following the Appeals Chamber's ruling that would change. Why should he want to withdraw now?

Kay expressed his dismay over the destruction of his once cordial relationship with the Accused. 'I have not welcomed being called a prosecutor, nor that I haven't put the case properly when I have not been instructed and am trying to do my best.' A complaint filed against him by Milosevic's Dutch counsel with the Dutch Bar Association also distressed Kay. Judge Bonomy interjected that all lawyers and judges have complaints filed against them, suggesting Kay's concern was an overreaction. Kay pointed out that this complaint was filed by his client's chosen counsel. He also indicated that he'd received a letter from the Dutch Bar stating they could see no ground in the complaint, but felt the attorney should have an opportunity to raise it. Kay, as well as the Dutch Bar, appeared to misapprehend the Bar's jurisdiction, which does not extend to lawyers practicing before an international court which happens to be located in The Netherlands.

That the Dutch Bar could interfere in a trial before the ICTY caused Judge Bonomy to demand, 'Who's running this court?' He objected to a position that would allow 'any mischievous complaint' to disrupt a Tribunal proceeding.

Judge Robinson added his strong objection to Kay's argument that all professional codes of conduct require defence counsel to follow the accused's objectives, even if he says 'I don't want you to do anything.' The 'fundamental flaw' in this argument, the Judge said, is that the codes are subject to the ICTY statute and to customary international law. 'The fundamental duty is to insure a fair trial and every provision in those codes is subject to it.' Kay retorted that defence counsel's duty of loyalty is part of it, i.e. a fair trial.

Judge Bonomy also disagreed with Kay's assertion that defence counsel cannot act without instructions from the Accused. Pointing out that he had the advantage of having read the trial record recently, the Judge said he found 'loads of indications of lines [of defence] that ought to be pursued by any counsel. . . .' Kay protested that defence counsel are obligated to protect the Accused's best interests and that 'he views the case probably very differently than we would . . . and he is the guardian of his best interests.' Judge Bonomy did not agree. 'His best interests plainly can be assessed objectively.'

Kay's and the Court's positions reveal a difference in legal perspectives that reflects their differing roles but also more than that. Where Kay interprets the role of defence counsel to be that of using his legal expertise in the service of his client, whatever the client's objectives (short of criminality), the Judges place emphasis on counsel's duty as an officer of the Court to assure that the accused receives a fair trial, his wishes aside. Their positions likely also differ on what constitutes a fair trial. Is it a trial where all relevant legal defences are raised, or is it a trial which satisfies the accused's objective to present a political case to the public? An unaddressed question is how far counsel can go in presenting issues that are irrelevant to a defence against the charges?

Before the Court reached the substantive issue, it required Kay to provide legal arguments supporting its jurisdiction, i.e. its power to decide the issue of withdrawal of counsel rather than the Registrar. Ordinary issues concerning assignment and withdrawal of counsel are made by the Registrar as part of his administrative duties. In this case, Kay initially addressed his request to withdraw to the Registrar. After consultation with the Deputy Registrar, however, the issue was referred to the Trial Chamber as the more appropriate body, since it had made the initial order on assignment of counsel. Taking up the substantive issue, the Court seemed to have concluded that withdrawal of counsel in this situation affected the fairness and future conduct of the trial and so was more appropriately a matter for the Trial Chamber.

Tomorrow morning, the Trial Chamber resumes hearing argument on whether to permit Kay and Higgins to withdraw.