Friday, October 30, 2009

Judge Refuses to Recuse Himself in Jackie Selebi Trial

Selebi trial: Judge Joffe stands firm


Judge Meyer Joffe has declined to recuse himself from hearing the Jackie Selebi corruption trial.

In a strongly worded ruling, read out to the South Gauteng High Court on Friday, Meyer meticulously went through each of Selebi's complaints against him, and dismissed each with phrases like "unfounded" or "unfortunate and wrong".

This means Joffe will continue to preside over the marathon trial of the former top cop, which will resume on Monday when Selebi's counsel, Jaap Cilliers, will continue his cross-examination of drug dealer Glenn Agliotti.

After reciting rulings from Constitutional Court and Supreme Court of Appeal judgements, he laid down the basis for his decision by listing all of Selebi's complaints, and finding that all of them gave no reasonable suspicion of bias, and were "without merit" or "ill-founded". He did not concede to a single complaint.

"I have considered the complaints objectively," said Joffe. "I am unable to conclude on the papers before me that any single complaint ... or all the complaints … show bias or give rise to a reasonable apprehension of bias. The application for my recusal is dismissed."

Selebi's complaints included Joffe's alleged hostility towards Cilliers, Joffe not reprimanding state prosecutor Gerrie Nel for his alleged misconduct in the trial, and accusations that Joffe "assisted" Agliotti in finding "a way out", when it appeared Agliotti had lied.

Selebi told the Mail & Guardian Online after the ruling: "I'm feeling OK, I'm good." When the M&G Online asked if he is looking forward to relating his side of the story, Selebi said: "My time will come."

'I have not been affected by the media'

Argument in the recusal application took place on Thursday. "Your lordship was to some extent hostile to the defence," said Cilliers during his argument, referring to interactions between himself and Joffe when he attempted to cross-examine Agliotti on the contents of an article in City Press newspaper.

Cilliers said that he has been in his profession for a long time, and was used to "rude remarks from the bench", to which Joffe, clearly disturbed, replied, "I take the greatest umbrage in that."

Cilliers, although taking jabs at Joffe's neutrality, insisted throughout his arguments that he was "not suggesting that your lordship is deliberately dishonest", but, rather that his actions may cause Selebi to perceive or suspect that he is biased.

State prosecutor Gerrie Nel then had his turn to speak and called Selebi's application for the judge's recusal "weak".

"There is no real merit in this application," he said, adding that the application was based on attacking the prosecution, the Scorpions and the National Prosecuting Authority.

Nel also dismissed the strength of Cilliers's earlier claim that Joffe's partiality was affected by media reports.

"The accused is not the first person to stand trial with a media campaign against him," said Nel. "I'm going to refer to ... Advocate Barbie. That case ran for about a year. The judge passed away and another judge had to take over. Are you saying that we have to ask every judge 'did you read the papers?'".

Joffe, whose mood appeared to have lifted after the lunch break, replied: "Are you asking me to pass away?" to laughter, and a sense of relief, from the courtroom.

Joffe then removed his glasses and said: "This is a very difficult application because it goes to my every essence. I consider myself a well-informed South African. I get a number of papers delivered to my home. But I do not read matters that are not fact ... I have not been affected by the media."

'How long have you been senior counsel?'

Earlier on Thursday, Cilliers listed the ways in which Selebi felt that Joffe had been biased against him. The first was that when Agliotti admitted to lying to the court Joffe did not raise the issue of the "conduct of the prosecution" who "had knowledge of the fact that their witness was lying".

Cilliers's next point was that chief prosecutor Gerrie Nel and his prosecuting team withheld important documents from the defence, which they then included in a bundle they had handed to Joffe.

"The prosecution acted with ulterior motive ... they manipulated the evidence," said Cilliers. "You did not raise how it came about that the documents were put in that bundle."

Joffe, appearing to be nearing the end of his tether, asked Cilliers: "Mr Cilliers, how long have you been senior counsel? If you felt hard done by by Mr Nel's conduct, why didn't you tell me? I would've dealt with it. Why do you put it at my door and not raise it yourself ... I'm being taken to task for not chastising Mr Nel. I'm putting it to you, why didn't you raise the objection?"

The third issue revolved around a controversial City Press article of two weeks ago, which described a video that had been leaked to the newspaper by an unknown source. Joffe had not allowed Cilliers to complete cross-examining Agliotti on the article.

Source: Mail & Guardian Online
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