Where All of the Guilty Ones Get Fair Trials
I suspect that relatively few members or staffers had time to read the long-winded written statement I submitted to the record with my September 27, 2006 congressional testimony. Starting on page Page 79, I described the many procedural and institutional reasons why American soldiers do not receive fair trials in Korean courts. I drew heavily on stories that GI Korea and USinKorea had originally linked in preparing it, along with the assistance of a good friend I asked to fact-check some of my assertions, in case they might have grown stale with time.
Marmot’s Hole guest-blogger and lawyer Brendan Carr, speaking to a reporter for the Stars and Stripes, now offers an invaluable contribution to this discussion. Brendan’s criticism of Korean society and its attitude toward the importance of truthfulness in a courtroom is blunt. At its root, the study of modern culture is a collection of generalizations about how humans in a particular society tend to behave differently from humans in other societies. Koreans tend not to react favorably to foreign criticism, and I hope the “netizens” don’t give Brendan the Gerry Bevers treatment for the crime of being direct. Interestingly, a native Korean lawyer backs him up in the report. I don’t think Brendan means to impeach the honesty of Koreans in the more general sense, and I’ve known some Koreans who were fastidiously honest (and married one), along with plenty of others who weren’t. I’ve met both kinds in the course of interviewing Korean witnesses and reading their statements. In any society, Diogenes is in for a long walk, but if he ever intends to hang up his lantern, he’d best avoid courtrooms. I’d join Brendan in saying that goes double for Korean courtrooms when an American in on trial.
I’m going to give you a long graf from that must-read article. Brendan puts his discussion into the context of a typical late-night brawl between soldiers and Koreans, the kind of thing most of us are very tired of reading about.
“And in those cases, the U.S. servicemember is at a profound disadvantage for a number of reasons, all related to culture and language,” he said. Because most servicemembers can’t speak Korean, they can have a tough time making sure police don’t get the wrong picture of what occurred.
“So being able to order two beers and ask your girlfriend if she ate dinner is not enough to explain how an altercation happened and why you’re blameless,” he said.
And lawyers say court-appointed translators often have poor English skills and spotty qualifications.
Tribalism and lying witnesses
Beyond language difficulties is the prospect that South Koreans who give testimony might feel it culturally acceptable to lie, especially if it will increase their chances of winning bigger damages, Carr said.
“This culture,” Carr said, “does not place the same value on truth or view the truth through the same prism that Americans do. There is very little social disapproval of making false official statements in order to achieve an objective for your friend or relative or for a tribemate.
“Once it breaks down to “˜those Americans’ versus “˜us Koreans,’ many, many Koreans will perceive it as their duty to make sure that the Korean is the winner of the dispute. So there’s a lot of lying when witnesses come forward,” Carr said.
“Some people,” said Seoul attorney Jin Hyo-guen, “think that it’s their duty or their job to testify in a way the GI should be punished, severely” and beyond what’s warranted by what “actually happened.
“Of course, there are some persons who think “¦ favorably and amicably” toward U.S. servicemembers, Jin said. “But sometimes not. Jin has represented numerous U.S. servicemembers in South Korean courts.
Anti-American pressure
Another potential hazard is that some U.S. military defendants are viewed as violence-prone troublemakers unwilling to admit guilt. That can work against them at sentencing, said Carr.
“Because there’s such a public bias against them and a political desire to kick the United States in the teeth by kicking a soldier “¦ “ said Carr, “we labor against this Korean domestic perception that soldiers are never punished.
But there’s also the prospect that anti-American groups might try to pressure authorities against the accused servicemember, said Jin.
About three years ago, Jin represented a soldier who, while drunk, stabbed a Korean in the neck. At first, Korean investigators concluded the assault had not involved an intent to kill, so authorities charged the soldier with battery, Jin said.
But anti-American activist groups weighed in, pressing police and prosecutors to charge the soldier with attempted murder, Jin said, and the prosecutor changed his mind.
The soldier was convicted and sentenced to two-and-a-half years in prison, Jin said. Higher courts rejected his appeals. [….]
Jin said he believes some prosecutors and judges fear they’ll be labeled “as a “˜pro-American’ or what they call “˜imperialist.'”
So much for an independent judiciary.
Compounding that problem is that some Koreans perceive that U.S. servicemembers are “more strongly protected than necessary” if they’re arrested, said Carr’s law partner, Son Doil, a lawyer who several years ago was a Gwangju District Court judge.
The U.S. military will provide the servicemember the chance to select a defense lawyer from a list of attorneys licensed to practice law in South Korea and will pay the lawyer a fixed fee.
And uniformly, my clients described those lawyers as apathetic and meek advocates. So what headline does the Stipes put on this story?
Lawyer: Americans can expect fair trial in S. Korea
Something tells me Brendan did not write this headline, and I’d be interested in knowing whether he actually believes that this is a fair summary of the situation he has just described. Based on my experience, an American soldier’s only chance of getting a fair trial in a Korean court is if he’s so dead-to-rights guilty anyway that lying witnesses, biased prosecutors, sleeping judges, and coerced statements can’t affect the outcome.
GI Korea puts all of this together with other relevant examples. All in all, Korea is not one of the better places on earth to be out on the streets as an American, particularly as a soldier, particularly at night, particularly if you’ve been drinking, and most particularly of all, if you’re behaving like a complete ass. The best advice any lawyer could give an American soldier in Korea is to stay on post at night.
But there is a broader picture, too: it’s time to get our soldiers out of South Korea. The South Koreans can defend their own country, and they’re proving my point by cutting their own military spending while they send billions in tribute to Kim Jong Il. Indirectly, we’re picking up the tab for all of this. The majority of the South Korea people either despise our soldiers or tolerate them as a necessary evil at best, and many treat them with the sort of contempt that should be a scandal. If war comes, we will find ourselves trapped in a ground war that would be incalculably bloody, in which we will be prime targets, in which large segments of the population will support our enemies, and in which we can expect terror and WMD attacks. Our presence in Korea is a tempting target for anti-American radicals, terrorists, and North Korean artillery. It is going to continue doing us grave political harm as long as young male boorishness continues to be a statistical certainty, as long as drunks can keep buying cheap drinks, and as long as Korea continues to see each individual incident through a nationalistic, anti-American lens.
Staying in Korea does not serve our national interests. The current U.S. Forces Korea structure is an anachronism. It is time to shift from a strategy of vulnerable military statis to one of flexible power projection, and of undermining Kim Jong Il’s rule at its own points of vulnerability — its palace economy and its increasingly discontented people.
I wrote this at GI Korea’s and I’ve written elsewhere before, but it is worth repeating. My first year in Korea teaching adults, 25-35 years old for the most part, I would always tie any discussion question to both cultures at some point. Sometimes, it was as simple as saying, “Well, what kind of problems do you have in Korean society?”
One thing they would frequently say was simply, “Koreans lie to much.”
Due to my American higher education, I fought hard mentally for about a year to wipe away what they meant by watering it down to something like “saving face” or not wanted to speak ill of elders yada yada yada…
Eventually, I learned what they meant was, “Koreans lie too much.”
Now, accept for hakwon owners, I didn’t find Koreans to lie to me any more than Americans or other foreigners.
But, I learned over time, Koreans are much more generous to people in their “circles” – more generous than makes good sense to me at times, and I heard plenty of stories over the years about such generousity being abused…..but Koreans are also much more indifferent-to-hostile to strangers — and I can imagine that translating to feeling free to lie in court for a friend over a stranger even another Korean.
Many of the things expats complain about in Korean society are things Koreans mention about themselves – similarly to how we complain about American society…
On the geopolitical issues – after working for a few weeks on NK human rights promotion videos…….
the only thing that keeps me from being a full advocate of using the military is the idea that I don’t think we have to go that far.
We should make a full effort to collapse the regime from within and be prepared to support South Korea in occupation duty after it falls.
And I still believe we should leave South Korea. And by that I mean don’t leave air force units or anything like that. Support Korea from outside of Korean soil if war breaks out, but no more boots on the ground.
And there are a variety of reasons for that opinion but I will leave it at that since most of you will have heard me say why several times before now already…
Korean System of ‘Justice’
Scenario 1:
The USFK mortuary at Yongsan Garrison pours 24 gallons of formalin down a drain.
MAJOR incident!
Korean headlines scream: ‘Give ‘em a fair trial … and then hang the guilty bastards!’ (That the drain’s contents actually went through a double filtration and dilution process at the waste treatment facility before being released into the Han River is pointedly ignored, don’tcha just know?)
Scenario 2:
While scenario 1 is unfolding, it is turns out that 29 timber companies are releasing 271 TONS of formalin DIRECTLY into streams feeding the Han River. (Although the companies had the financial capability to install facilities for treating the polluted water, they simply did not bother.)
Korean headlines: What headlines?
What problem? Who said there’s a problem?
Scenario #3: A large US Army tracked vehicle accidentally runs over and crushes two jay-walkers. Korean headlines scream for ROK jurisdiction over the soldiers, hundreds of thousands of people riot in front of the US Embassy every night for weeks, dozens cut through fences and run amock at several Army installations fighting with MPs, others throw bags of fecal matter and fire bombs over installation walls, burn flags, guard shacks, spray paint gates and walls, and ultimately demand repeatedly that President Bush get down on his knees and apologize to the Korean people.
Scenario #4: a Large ROK Army vehicle accidentally runs over and crushes an Iraqi jaywalker. Reaction? I bet you haven’t even heard of the incident, have you? Or how about the one where a ROK soldier playing around with his weapon accidentally shot and killed his Iraqi interpreter? Heard of that one? Neither have the Korean people. There are no political points to be scored by reporting it and the Korean press and public are all about “counting coup.”
Billy, I would REALLY like to have links to the incidents to which you refer.
Not much out there to link to, but here’s one for starters…
http://english.yna.co.kr/Engnews/20060216/410100000020060216114132E3.html
SEOUL, Feb. 16 (Yonhap) — An Iraqi local government official has been killed in a traffic accident by a Korean military truck, South Korea’s Joint Chiefs of Staff (JCS) office said Thursday.
Yangban blogged about the incident last year as well.
http://gopkorea.blogs.com/flyingyangban/korea_and_iraq/index.html
Can’t get you a link to the accidental shooting. Don’t recall ever seeing one. I got that info from a different source shortly after the incident happened. Wish I could say more. Sorry.
Here is the link to the shooting of the Kurdish Peshmerga soldier. It was a stupid but an accident:
http://english.chosun.com/w21data/html/news/200504/200504130032.html
However, using Korean logic this soldier should have been handed over to the Kurdish court system but was protected by a Korean SOFA.
I use this incident and the vehicle accident as the best examples of Korea protecting their soldiers with a SOFA. However, the Korean SOFA even protects the Koreans while off duty as well unlike the USFK SOFA in Korea.
It would be interesting to see the clauses of a ROK SOFA with nations that aren’t in crisis — if South Korea has any SOFAs with such nations. I don’t know how many Korean soldiers would be sent to places like that?
I wonder if any Korean soldiers have been sent to Cyprus over the years and if a SOFA was cut for that?
The only other examples that come to mind where more than individual soldiers were sent from Korea to another nation are places like Somolia or Iraq.
What about Lebannon? I heard an ROK peace-keeping unit was slated to be stationed there…
What is the state of the justice system there? This isn’t the 1980s-1990s: they aren’t going through what they did then, judging by the press.
So, would we say Lebannon (minus the Israel-Hezbolla conflict) a “stable” society – with a “fair” enough judicial system?
If so or if not — what kind of SOFA for these ROK soldiers being tapped to go over there would be “fair” to Lebannese sovereignty?
Korea has had a Status of Forces Agreement with Kazakstan (don’t know whether it’s still in effect), and also with Timor Leste (East Timor). Under these Korean SOFAs, Korea has reserved to itself ALL criminal jurisdiction over its nationals dispatched to the host country. There is no primary-secondary jurisdiction distinction, and no in-the-course-of-duty determination. Koreans enjoy complete immunity from prosecution when Korea dispatches them to foreign countries — except when dispatched to the United States, where under the US-ROK SOFA they enjoy the same rights America has secured for its soldiers in Korea.
Joshua, no — I wouldn’t have given that story the headline that the Stars & Stripes chose. But maybe I wasn’t the “lawyer” being quoted as saying the trials are fair; it might have been my partner Doil Son, who felt obliged to try to “paper over” some of my blunter criticisms. He thought I was factually correct but “too extreme” in my characterizations of the weaknesses in the Korean criminal-justice system.
My own personal experiences working with Korean lawyers have been mostly quite positive — with the exception of one nasty, drunken fool associate at Lee & Ko, and another guy who’s so horrible I can’t say the name of his firm (but foreign lawyers thinking about working in Korea ought to call me for the necessary warnings lest they take a job with this guy), the lawyers with whom I’ve worked have been exceptional people who have been completely honest and faithful. Sometimes, to a fault.
As for the Korean justice system, you’ve got it right: All the guilty ones get fair trials. I’m not a criminal-defense lawyer, and as a foreign legal consultant I can’t directly defend these clients anyway. But from time to time, out of personal interest, my firm has accepted certain foreigner criminal cases. With the exception of Kenzi Snider, all of our criminal clients have been guilty — even the ones we got acquitted, or convicted but released for “time served”.
Looking at the police blotter, USFK courts-martial sentencing reports, and the anecdotes you presented in your testimony to Congress, it’s easy to see that the Korean preference is to convict everyone, then hand out Mickey-Mouse sentences — except where US military is the defendant. Then public pressure doesn’t allow the judge to give out the usual Mickey-Mouse sentence lest the mob descend upon him.
That sure doesn’t feel great if you’re in fact innocent of the crime for which you’re accused.
Do you happen to have a link for this SOFA? I’ll look for one…
On Kazakstan, I don’t know about its stability or fairness or trials. With East Timor, it was in upheaval when Korea sent troops there. I’d like to check out a place where SK sent troops where the justice system is considered stable at least. The US-ROK SOFA would do that….but I don’t know of other places…
On another note, do you know of any US soldiers or USFK-connected civlians who have been acquitted in a Korean court? I haven’t found one yet (but USFK’s prosecutors have a high conviction rate too).
On Snider, I remember her lawyer (who I take it works at the same firm as you do) came to Marmot’s to defend her against bloggers saying she was probably guilty. (Her family definately got their money’s worth there, I take it…)
But, from such a great distance as I have, it still seemed like she was probably guilty – based on what came out of the press —
—- and especially since she was said to have confessed to it twice in the US……..I didn’t buy the idea that she was duped or tricked or confused into both confessions….
Brendan, Interesting you mention Kenzi Snider. At the time Jamie Penich was killed, I was told that if a soldier became a suspect, I would have been assigned to defend the case. I won’t name the CID agent who said this, but apparently, the KNP completely screwed up the crime scene for forensic purposes. They were tracking blood and smearming their greasy fingerprints all over the place like a bunch of four year olds at Chuck-e-Cheese’s. I would likely have gotten the forsensics thrown out at a court martial, but that would not likely have stopped a Korean court from convicting the defendant.
Sadly, we still really don’t know who did this, because our own FBI seems to have pushed Ms. Snider into her confession, with the Koreans in the unusual role of actually deciding that she wasn’t guilty. That one is almost too strange for life.
In any event, thanks for the straightforward assessment for the Stripes, and for your comment here.
I have never been able to get my mind wrapped around the “FBI seems to have pushed her into her confession” (twice no less). She wasn’t some teenage high school or middle schooler.
The one item that I could read about that made me think there could be someone else guilty was the report by the European girl who was staying with the victim. She said she didn’t hear the murder taking place right beside her, but she said thought she heard someone open and shut the door leaving. She was someone I definately would have wanted to question some more.
Lastly, as I remember it, the Koreans through out the confessions because in Korean law, such statements needed a Korean prosecutor present to be admitted in court.
Oh, and I also remember an interview with a US forensic specialist who ripped the Koreans a new one for their handling of the scene too..
Oh, wait……I don’t know why I didn’t think to ask Joshua before….
One of the things I found fascinating in reading the case was how they brought one GI they were looking out as a suspect out into a parking lot on base to have a 1-on-1 ID with the motel/hotel manager who told police she had seen a GI-looking male on that hall sometime during the night and he might have had a stain on his pants leg.
I thought —- a 1-on-1 lineup days or weeks after the case!!
Can they do that in the US military system or the Korean system?
As I remember it from Georgia law, you can do a 1-on-1 ID to eliminate a potential suspect — if — the person is found near the scene and close to the time of the crime. But, if any kind of significant time and distance lapse, it has to be a full line up.
I also remember another GI (or the same one) saying USFK had him in a line up for that crime and all the other foriegners they picked to stand with him were South East Asianers and others from the UN honor guard and he knew at that moment they were really gunning for him to pin the murder on….