Kaufman is not Darrow nor Bailey

The other day, we drove a little faster than usual from my small garden in the mountain barangay of Paril. Traffic was also unusually light. Thanks to my 56-year-old Volkswagen Beetle, we were home in a breeze and early enough to watch finally a modern equivalent of either Clarence Darrow or Francis Lee Bailey, Jr., in action.

  From the internet, I read this relevant quote attributed to Darrow “You can only protect your liberties in this world by protecting the other man's freedom.” Darrow acted as defense counsel in many dramatic American criminal trials particularly the Scopes Monkey Trials where John Scopes was accused of violating a state law that allowed the teaching of evolution. What most of us did not know though was that his father, Amirus, who studied theology, became agnostic and his skepticism apparently influenced little Clarence. I do not know if former President Rodrigo Duterte shares the agnosticism of Amirus.

Bailey, was another famous American criminal defense attorney and he wrote the book “The Defense Never Rests." He was the defense counsel in such high profile case as that of Sam Sheppard, a surgeon accused of murdering his wife, of heiress Patty Hearst, for her alleged involvement in bank robberies reportedly committed during her involvement with the Symbionese Liberation Army, and was a part of a supposed legal “Dream Team” of OJ Simpson, accused of murdering Nicole Brown Simpson and Ron Goldman.

 I and my lady Carmen, were already comfortably seated at our sofa, sipping our favorite coffee, when the confirmation of charges in the International Criminal Court began. Senior Trial Lawyer Julian Nicholls was thorough in recalling former president Duterte’s past vow to take responsibility for his administration’s drug war, (the impunity crux in this hostis humani generis case against Duterte). But, I told my lady that I witnessed a more electrifying Atty. Amadeo “Matoy” Seno, our law school dean then, in Cebu’s own high profile Abi-abi case in our short lived court room encounter. I say this even as I hold Julian Nicholls in high respect.

          In the early part of this Duterte “anti-drug war” case, there was a deluge of exciting chronicles announcing the appointment of British-Israeli lawyer Nicholas Kaufman, as Digong’s defense counsel. With his reputation preceding him, Atty Kaufman’s defense of high-profile clients at the ICC, such as Jean-Pierre Bemba and Aisha Gaddafi, somewhat made known for not working pro bono. His fees were markedly high. There were conflicting and unverified reports mentioning his professional fee for defending Duterte at somewhere in the vicinity of one hundred fifty million pesos a month. Gosh! I just thought that an attorney’s fee of over a billion pesos a year should engage a lawyer of the known caliber of Darrow and Bailey.

 In the opening statement of Kaufman, he initially alluded to the prosecutor as having engaged in “political demagoguery and xx a desire to effect regime change.” He clearly wanted to suppress the fact that it was in 2017 when the ICC began investigating the extra judicial killings and in that year Marcos was an ordinary civilian Bongbong and had nothing to do with regime change. Kaufman went on to attack (my words) President Ferdinand R Marcos Jr., of not honoring a previous commitment not to help the ICC. Despite his fame, he must be ignorant of a constitutional provision with which the Philippines adopts the generally accepted principles of international law as part of the law of the land and the ICC is. From where I sat, not only was Kaufman’s opening line irrelevant, it was pointless. His style was quite unlike Darrow who, in defending Stokes, focused heavily on the unconstitutionality of the Butler Act, arguing it violated freedom of speech and religion which was the very issue then at hand.

Kaufman, sad to say, is also far from the shadow of Bailey. I have observed that they cannot be placed on equal footing. While Kaufman opened irrelevantly with referral to his “phenomenal” client’s expletives and hyperbole, Bailey made his opening statement directly into the issue as he maintained that an intruder murdered Marilyn Sheppard and attacked Dr. Sam, and proceeded to assert that the state had failed to prove Sheppard committed the crime.

 While I believe that this case has to be tried full blown, I think that Kaufman and his team need to re-invent their defense strategy for a better representation of the former president.