Lawyers representing ex-president Charles Taylor have filed a motion requesting the voluntary withdrawal or disqualification of Appeals Chamber judges from his (Taylor's) appeals hearing.
Mr. Taylor's lawyers are requesting that a new appeal panel composed of judges who did not participate in the decision and sanction against Justice Sow, the alternative judge whose statement of dissent at the April 26 verdict of Taylor sparked concern.
In a motion dated July 19,2012,Taylor's lawyers argued that Taylor's notice of Appeal also arises from the statement made by Justice Sow (Ground of Appeal) and that all of the members of the Appeals Chamber voluntarily withdraw from deciding these grounds.
"It is requested that a separate appeal panel, composed of judges who did not participate in the decision and sanctions against Justice Sow, should determine those Grounds of Appeal." Taylor lawyers said.
"In the event that the Appeals Chamber Judges do not withdraw voluntarily on the basis of the present motion, they are respectfully invited to refer the present request to a separate and impartial panel of judges for a determination as a motion for disqualification.
The basis of this motion is that a reasonable observer, properly informed, would apprehend bias on the part of the Judges of the Appeal Chamber, because they have already made an adverse finding in the plenary and therefore pre-judged a critical aspect of the credibility of a source of evidence which is fundamental to the Grounds of Appeal. Thus they are precluded from deciding on these grounds."
But in response to their motion, the prosecution the defense motion is without merit, and should be dismissed.
"The Motion does not meet the "high burden" required to overcome the "presumption of impartiality which attaches to a Judge", deriving from the Judge's oath of office and qualifications for appointment? This presumption cannot easily be rebutted' and has not been rebutted," the prosecution said in response dated July 27, 2012.
The prosecution said the Defence failed t adduce reliable and sufficient evidence which "firmly establishes" a reasonable apprehension of bias by reason of prejudgement." Although the standpoint of an accused is a relevant consideration, it is not decisive. But Mr. Taylor's lawyers maintained in a response to the Prosecution that the Defence submissions are based on apprehended bias and not actual bias.
"The Defense has adduced a sufficient factual basis and applied the correct legal test to demonstrate that there is a reasonable apprehension of bias in the circumstances," the defense said.
The defense countered that "Firstly, the Motion sets out Justice Sow's statement in open court on 26 April 2012 ("Justice Sow's Statement" or "Statement")" and explains its fundamental importance to the Grounds of Appeal.
The defense wonders why Justice Sow's statement was deliberately removed from the court's record arguing that the Statement was considered significant enough to form the factual basis for the finding and sanction against Justice Sow for judicial misconduct, but was not considered important enough to be maintained in the official trial transcripts in the interests of accuracy and transparency.