My Unusual Attorney Experience: The Time I Trained Public Defenders in Myanmar

This article was originally published in the Bar Bench, a publication of the Salt Lake County Bar Association.

By Kate Conyers

Mingalaba! That roughly means “auspiciousness to you” or more commonly “hello” in Myanmar. Since returning from Myanmar in August of 2018 where I worked with the International Legal Foundation (ILF), I have received a lot of questions about my experience. Here are my answers to those questions.

Where is Myanmar, and how is it pronounced?
I had the same question before I moved there for three months. Myanmar is a large country formerly known as Burma in Southeast Asia, bordered by India and Bangladesh to its west, Thailand and Laos to its east, and China to its north. Roughly, it’s pronounced as “ME-an-mar” (although a better pronunciation can be found here. People who live there are also referred to as Myanmar people, the language they speak is Myanmar, and my Myanmar coworkers’ favorite beer is Myanmar (trust me: it is so much better than Budweiser!).

How did I teach law in Myanmar without knowing the language or the laws?
Myanmar’s criminal justice system is completely different than ours and while English is spoken a bit (it is taught in public schools), it isn’t commonly utilized by professionals outside of international business. Thankfully, the four main sources of law applicable to the criminal justice system-Myanmar’s Constitution, the R ules of Criminal Procedu re, the Evidence Act, and the Penal Code-are all published in both Myanmar and English with English on the left side of the page and Myanmar on the right side of the page so they easily track each other. ILF also provided me with an interpreter/translator that doubled as the office paralegal so that I could communicate with the two lawyers in each of the offices. Finally, ILF also compiles a working draft of its “Myanmar Practice Manual” that identifies common practices in the criminal justice system. ILF staff and Fellows regularly update the Manual with suggestions, wins and losses, and practical tips to improve our understanding and practice of the law. Armed with these resources and my own knowledge and experiences in the American criminal justice system, I was able to successfully train and improve the skills of the four lawyers and two paralegals (and ideally others in the legal system) as well as update the Practice Manual to the benefit of future Fellows and lawyers.

So what was the reason why I quit my awesome job at LDA and temporarily moved to Myanmar?
I know, that sounds crazy! I did it because I was offered what seemed like a once-in-a-lifetime opportunity. From April to June, 2018, I served as an International Fellow for the ILF, an international nongovernmental organization that assists post-conflict and transitional countries in establishing public defender systems that provide effective, quality criminal defense services for the poor. During my time, ILF had two offices in Myanmar: the first in the country’s largest city, Yangon, and the second in a smaller city Mandalay (yes, Mandalay Bay in Las Vegas is named after this city). Later this year, ILF will open two or three additional Myanmar offices (One will be in the Rhakine State where the Rohingya Muslim conflict is taking place).

Why did I want to do this Fellowship and how did I find it?
At the time I learned of this opportunity, I was serving as a public defender at the Salt Lake Legal Defenders (LDA) and loving my job. But for those who know me, I am always open to a new adventure. And this particular opportunity seemed to combine my passion for public defense with my educational training. In addition to my J.D., I received a Masters of Public Administration with a focus on nonprofit management. And in my undergrad I studied International Human Rights and received an Asian Studies Minor after serving four studies abroad that included India (two times) and South Korea. When I saw ILF’s fellowship announcement in an ABA public defense list serv, I realized this could be my “adult study abroad” where I would have the opportunity to train public defenders and practice international human rights. The rest is, as they say, history.

What are the biggest differences in Myanmar’s criminal justice system compared to our system?
For the most part, Myanmar is missing the “big five” (as I’ve been calling them) rights that our Constitution guarantees criminal defendants in America. In Myanmar, there is
• No presumption of innocence
• No right to counsel
• No right to remain silent
• No right to a jury trial
• No right to appeal

In addition to this, there is no designated method to bring pre-trial motions and judges rarely acquit because they believe doing so indicates that they’ve been bribed. To most (including most of the criminal defense attorneys I saw in Myanmar), the only way to succeed in this reality is to bribe the police early on with the hopes it will prevent a case from even being filed in the first place. Once a trial starts-a week or two after filing-it seems that there is nothing to do except to prepare a client for a long prison sentence. ILF, like most other legal aid offices, has a strict “no bribery” rule; instead, it utilizes Fellows to train its attorneys to fight practically everything in every single case. Doing so trains the attorneys as well as the prosecutors, judges, and even other criminal defense lawyers, about the rights defendants are entitled to and about equity. In the one year that ILF has been operating in Myanmar, it has found ways to successfully challenge evidence and judicial rulings. I even assisted in getting a case dismissed (with about 6 young men ages 18-22 who were facing 7 to 20 years in prison). On top of all of that, Myanmar’s criminal justice system doesn’t seem to be governed by generalized standards. ILF found a Myanmar Supreme Court case that has been repeatedly upheld that holds the government must prove its case “beyond a logical doubt,” but most judges and prosecutors I observed had never heard of this standard, and no standards seem to be suggested or applied.

If there is no right to an attorney, how does ILF get its cases?
Since there is no right to counsel in Myanmar, there is no public defender’s office. The closest thing to a PD is a lawyer paid by a legal aid office. Legal aid lawyers find their clients through various means, including referrals from defendants’ families, friends, other legal aid organizations, and even walking through and talking to potential clients in the holding cells while they are being held at court.

Are there any cases that demonstrate the differences between the American and Myanmar criminal justice systems?
Absolutely.

Case B

In case B, a woman in her mid-40s was arrested after allegedly stealing Nivea deodorant (valued at around ~$3) from a convenience store. She had no criminal history. Based on the allegations from the store cashier and manager, she was immediately taken into custody by the 6-8 male officers that responded. She is still in custody today. She wasn’t released during trial because all thefts are “non-bailable” offenses, which interestingly does allow release, but only in limited circumstances roughly amounting to having basically no evidence of the crime. Judges, though, strictly enforce the rule as prohibiting any release.

As with all criminal cases, within a week of being arrested, charges were filed and the defendant was presented at court where a judge informed the woman that she wasn’t eligible for release-even though she was a first time offender and the theft was minimal. The judge also asked the defendant whether she was guilty or not guilty, and when she responded she wasn’t guilty, the judge asked her for facts justifying her plea, without providing her the assistance of counsel or any information about her rights (or lack of rights). She made a statement that was fairly incriminating, but even if she hadn’t answered, the Rule provides that the court “shall” question the defendant about the case when she or he refuses to testify or provide a statement.

The trial started the very next week. At a trial, the government presents its witnesses-actual eyewitnesses (here, the store manager) and six to eight officers that will undoubtedly provide the exact same information about the investigation of the case (observing this feels a bit like the movie “Groundhog Day”). A good, trained attorney will ask the officers detailed questions that show they have absolutely no specific recollection about that event; an even better attorney will try to seek the testifying officer’s “police diary” that the witness will inevitably testify from and that is provided to the prosecution and the judge but not to the defendant/defense counsel except in a “recollection refreshed” sort of moment.

During trial, one witness is called to testify per week, and in my experience and others I’ve talked to, each witness fails to appear an average of one time. The government insists on presenting all or most of its witnesses, even if they are duplicative and it takes several times for the witness to appear. Here in this simple case, there were 8-10 witnesses, so the trial lasted at least 20 consecutive weeks. This becomes incredibly frustrating because we would arrive at court around 10:00 a.m. and not be told the witness couldn’t appear until around 4:00 p.m. Not only is this practice incredibly inefficient, courthouses also aren’t set up to provide spaces, tables/ chairs, wifi, copiers, or really anything so attorneys can get work done during the wait. (I read a lot on my phone during those long court days).

After it has presented its case, the government rests and the judge will inevitably “frame” the charges (essentially a bindover). ILF has learned that if it has a motion, the only time to bring it is between the government resting and before the charges are framed, which can be a matter of minutes and may be without any notice. Practically all motions are denied immediately. ILF also discovered a mechanism for an “interlocutory appeal” of sorts for these motions: a “revision” under the Criminal Procedure Code grants higher courts authority to hear petitions from any lower court order and to alter that order. This is not an appeal of right. Also, a revision does not stay the lower court from proceeding. In this case, we had no real grounds to bring a motion.

Once the charges are inevitably framed, the defense has an opportunity to present its case. In this case, we didn’t present much of a defense because there wasn’t one. The defendant gave a statement denying she knew the deodorant was in her pocket while she purchased several other items and she was convicted. Judges either sentence a defendant immediately after finding them guilty or set over sentencing to the following week. The court will entertain brief “final arguments” but it is not expected or anticipated. At most final arguments I’ve been to, the prosecutor (who is rarely the prosecutor who presented the government’s case) will submit on the case, and most defense attorneys will as well. ILF’s practice is to submit an extensive and detailed sentencing memorandum about the purposes of sentencing and apply it to the defendant’s life, and to also provide an oral argument summarizing the same. Over time, prosecutors came to expect this and even starting bringing the file to court and would make some sort of final argument.

In this case, the defendant was sentenced to one year in jail but was given credit for time served. ILF could have petitioned for an appeal (again, not an appeal of right), but the higher court isn’t bound by the sentence from the lower court. The judge in this case made it clear that the appellate court would likely give the maximum punishment-7 years-if we appealed, so we should be happy with one year. The defendant agreed so no appeal was filed.

Case J

In Case J, ILF wasn’t engaged until most of the government’s witnesses had already testified, including the alleged victim. Early in the case, the judge asked the defendant whether he assaulted the alleged victim, and the defendant admitted that he struck him with an iron bar. Because he didn’t have counsel and he had no experience with the court system, he didn’t explain the whole story to the judge-that he got into an argument with the man, a coworker, because the man propositioned his wife, and after being confronted about it, the man threatened the defendant with a knife. Likewise, the defendant didn’t know that he should cross examine the alleged victim, who testified only to the assault.

In March, 2018, ILF brought a 253 motion in the case, a rule in the Criminal Procedure Code that provides for dismissal if the charges are “groundless,” the same mechanism I discussed earlier. Here, the motion was based on the defendant being denied his right to recall the government’s witnesses and subject them to cross examination after the framing of the charges (this right to recall witnesses after framing of the charges is important because trials last so long, discovery is ongoing, and critical information may be discovered during the trial process). Here, the victim could not be located after he initially testified. In addition, the only other eyewitness to the case never testified and couldn’t be located.

ILF also made a motion to dismiss the case based on a February, 2018 Supreme Court Notification that encourages judges to dismiss cases if witnesses aren’t timely produced. Apparently that court also noticed that the trial process is incredibly inefficient, with witnesses failing to show up for months on end, even years, while defendants remained in custody. That motion was also brought on the grounds that the court couldn’t produce crucial witnesses for cross examination (there, it is the court’s and police’s responsibility to produce witnesses, even when they are recalled). Unfortunately, this Notification has been largely ignored, even by appellate courts that have approved ILF’s petitions for appeal on this very issue. In this case, the lower court denied both motions. ILF appealed, but its “revision” application was denied (although the higher court recognized that the defendant does have a right to recall witnesses).

As of September, 2018, the case is still in a holding pattern while the defendant remains in custody. The defense won’t rest its case beacuse to do so will absolutely result in a conviction of 20 years in prison. I truly believe that any other attorney would have given up a long time ago, but with ILF, this person still has a fighting chance.

Any other stories you want to share?
SIM card

One of ILF’s earliest “victories” may not seem like a win at all. A woman was charged with stealing a cell phone after being found with another’s SIM card in her possession. The defendant told the court that she found the SIM card in the street and that she put it in her phone. She received a call from the apparent owner of the SIM card who wanted the card back. The defendant agreed to meet with the woman at a tea shop, and when she arrived, 6-8 officers were waiting to arrest her for theft of the cell phone. It was uncontested that the cell phone was never located and there were never any allegations that the defendant actually stole the cell phone. During the eight-month trial, ILF filed a 253 motion that the charge was groundless (there was absolutely no evidence she had anything to do with the theft of the phone), a revision after its motion was denied (and the revision was likewise denied), and an extensive sentencing memorandum. ILF’s attorney Yu Yu, put everything she had into final arguments. The judge convicted the woman anyway, but of a lesser charge of theft by receiving stolen property (the SIM card). The acquittal of the main charge was a huge victory, and it was also a victory that the judge ordered the woman to serve only seven months in jail, giving her credit for the eight she already spent. The defendant did not seek appeal.

Gambling

ILF had a case where a man was accused of running a gambling operation out of his home because during a search of his home, officers located a pencil, some paper with some unintelligible notes, and about $40 cash. Notably, all tips to police in Myanmar remain anonymous and it is extraordinarily difficult to get any information about the tipster or the information provided. The man believed that a neighbor who didn’t like him called the police. What the police didn’t seem to care about is that the man didn’t have a table, chairs, or any furniture to run a gambling operation, just a small mattress on the floor.

Prostitution

ILF had two cases where two different women, on two different nights, but in the same area, were arrested for prostitution. In one case, the woman was wearing pajamas and apparently trying to catch a bus. In the other, the woman was fully dressed. The same 6-8 male officers responded in both cases, and the civilian witnesses were likewise the same. The court decided to hear these cases together (although there is a mechanism for joinder, I don’t know that there is a rule allowing for separation of cases… it should be obvious that the two cases shouldn’t be heard together). It was clear during the entire trial and at sentencing that the judge, the witnesses, and even the prosecutor couldn’t tell the two women apart. They were both sentenced to one year in prison.

Any final thoughts?
Overall, my ILF Fellowship was an amazing experience. I love that ILF does this very difficult work in Myanmar and other post conflict countries. I am also so impressed that ILF’s attorneys show up to work every day, work incredibly hard, and file motions, investigate their cases, and do everything in their power to fight every aspect of every case, knowing that their efforts will largely be fruitless. It’s rare to see passion and fight like that. I hope to channel these amazing women when the fight for my client’s rights seems too hard, because it’s clear from this experience that it could be a lot worse.

Kate Article Photos

 

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