Presumption of Innocence Until Executed by Christopher G. Moore

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The lag between penning an editorial and breaking news can seem an eternity even when the two appear in the same edition of the newspaper. A Thai death penalty case has created a perfect journalistic storm with editors praising while reporter updates undermine and destroy the basis of such praise.

On 1st August, The Bangkok Post in an editorial titled “Sending the right Signals” supported the court decision to impose the death penalty on three cops convicted of the murder of a 17-year-old twelve years earlier.

“They clearly thought they were so far above the law that they had the power of life and death,” the editorial concluded.

On another page of the Bangkok Post we are informed the three cops sentenced to death have been released on bail. Altogether six police officers were charged with crimes related to the killing. One defendant was acquitted. Three officers were sentenced to death, one officer sentenced to life and another to seven years in prison. They are all out of jail.

A casual search of the history of the law of bail from the 18th century English and American law discloses no bail provision for someone convicted of murder and sentenced to death. The idea of someone condemned to death being set free on bail is not one that is common. Granting bail is mostly done prior to a trial. Once the accused has been convicted of the crime, the normal reasons for bail no longer apply i.e., the ability to assist defense counsel in countering the Crown’s case and accused presumption of innocence.

The presumption of innocence is lost once the court convicts the accused. While he may argue he has a continuing need to assist his legal counsel in the appellate process, that assistance is no longer one offered by a man presumed to be innocent.

A conviction by a court is the ultimate assignment of guilt and responsibility. Allowing bail for non-violent convicts might be justified but the grounds quickly vanish when the convict has been found guilty of murder.

The handing down of the death sentence upon conviction makes the granting of bail a case few lawyers will have encountered. In a bail assessment hearing, the court must assess the likelihood of the party requesting bail will jump bail and flee from prosecution. The Crown will argue (inevitably) the applicant is a high-risk case and the application should be denied. While the applicant argues that that family, community and his work history suggests that we submit to the court and not seek to escape.

It comes down to the discretion of the court to decide: what are the chances the applicant for bail will skip town and not appear at his hearing? That is a reasonable inquiry. When you ask a man who has been convicted to show up for his hanging there is a little voice inside all of us that scream—flee. Where the law of probabilities needle starts to point to one-hundred percent the question should be asked not whether the man with the death sentence will flee but when and where this will happen.

Thus once a man has been convicted and sentenced to death, it is difficult to think of a stronger case for the prisoner to run away as fast as he can. He has nothing to lose. He’s no worse off trying to escape once he’s been released from prison than if he never tried. He’s hanged in any event. As a matter of game theory, he’d be a fool not to make an attempt to escape, and he has nothing to lose trying to settle scores with those witnesses who were responsible for his conviction and death sentence.

Here’s some necessary background on the trial that led to the conviction of six police officers. The court sentenced three of the men to death, and according to news reports, granted them bail, meaning they were released from death row in prison.

The crime goes back to The War on Drugs in the early 2000s. Officially by the time the killing was called off, a body count of 2,500 people killed in extra judicial killings throughout the country. The idea of The War on Drugs was to rescue children and communities from the evil of drugs. And the best way to rescue them was to suppress and terrorize people involved in the drug business. Police were given a free hand to deal with suspected drug offenders, making no real distinction between users, dealers or petty criminals. It is never a good idea to issue 007 licenses to kill permits to law enforcement officers. Unlike a James Bond movie, the casualty rate has a way of sorting as the police fall into the routine of manning the roles of the prosecutor, judge and executioner. There were bound to be abuses.

Reports have circulated from that time (though no independent investigation was conducted) mentioning a range of number victims who were innocent (at least of drug crimes) as well as the casual drug users; these people were murdered during the dark era of the War on Drugs. The police said the deaths were the result of drug gangs going to war with each other. Others questioned the involvement of the police. Calls for an outside investigation and accounting of the actions of law enforcement officials largely went unanswered. The inability to bring to justice government officers responsible for the killings has often been cited as evidence of the culture of immunity and impunity that applies to protect government officials.

On Monday of this week (31 July 2012), a Thai criminal court took the bold step of convicting five police officers for their roles in the death of Kiattisak Thitboonskrong, a 17-year-old boy in upcountry Thailand who allegedly had stolen a motorbike. The killing of the boy for which three of the policemen were convicted and sentenced to die had no real connection with the war on drugs except perhaps to highlight mission creep that often occurs once official lawlessness is sanctioned.

During the proceedings the murder victims aunt and two other witnesses were put under a police witness protection program. With the conviction of the officers, that protection automatically lapses. In normal circumstances, that would make sense. After the conviction the criminal is not on the street and not a threat to the witnesses. The aunt and witnesses now face the prospect of going about their business without protection against the convicted police officers whose were aided by their testimony, and those death sentence convicts are now out on bail.

The court decision to convict and then to grant bail sends contradictory messages. On the one hand, the conviction suggests that the criminal court is ready to hold police officer to account for murder. That is a significant shift to rule of law and accountability, requiring institutional courage by the court. At the same time, assuming the press reports are accurate, by releasing the three police officers sentenced to death, the conviction has been undermined and the lives of witnesses placed in possible harm’s way.

In most places in the world, when an accused has been convicted of an offense punishable by death or life imprisonment, he is not eligible for bail. In the days that come, there will be explanations, justifications, and finally the usual official stonewalling over the bail decision.

The bottom line is “Sending the Right Signal” might prove to have been a premature caption for the editorial applauding the conviction of the cops implicated in the boy’s murder. At best the five convictions and grant of bail applications fall under the head of “Sending a Confused Signal” as to the way the state deal with its officials who commit murder or other serious crimes. At this juncture, it is impossible to know what conditions were attached to the bail, the reporting obligations, the restrictions on contacting witnesses, handing over of passports, attachment of electronic monitoring bracelets, etc.

What is clear is the signal that as between cops convicted of capital murder and sentenced to die for their crimes, their right to liberty exceeds their right of movement and safety of the witnesses who testified against them. On the scale of justice, that is an odd weighing of the respective interest of the parties not to mention the interest of the public. How the risks will play out in the days that follow are difficult to assess. But the people who testified against the cops in the murder case and the cops who were convicted and sentenced to death share a common bond—they want to stay alive.

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