LESS THAN 2 MONTHS BEFORE TRIAL: Digong makes first public appearance in over a year

After skipping proceedings in the past, former president Rodrigo Duterte marked his first public appearance in one year and six months after attending the last status conference for his crimes against humanity case at the International Criminal Court on Wednesday, before he stands trial on 30 November.

Unlike his first court appearance on 14 March last year, which was virtual, Duterte was present in the courtroom alongside ICC prosecutors, his defense team, counsel for the victims, and the three judges of the Trial Chamber III.

The 81-year-old Duterte was clad in a white button-down polo and a black collared jacket, with his face framed by a white thin beard and eyebrows. He was seated at the back with his lawyers.

Presiding Judge Joanna Korner acknowledged Duterte’s presence at the outset of proceedings, advising him that he could leave the courtroom if he wished.

Duterte, however, stayed until the conference was finished. The proceedings lasted a little over an hour.

Wednesday’s proceedings marked the third status conference in Duterte’s case; the first two were held on 27 May and 24 June, which the former president also skipped, similar to past proceedings, including the confirmation of charges hearing in February.

During the proceedings on Wednesday, defense lead counsel Peter Haynes protested the alleged excessive volume of evidence that the prosecution intends to present against Duterte.

According to Haynes, the evidence has grown to almost 20,000 in the main list, on top of 62,500 exhibits, totaling 324,000 pages of evidence. They are in addition to “over a thousand video and audio files, which run to many thousands of hours,” Haynes stressed.

Haynes deemed it “unworkable” and “impossible” for the defense to process them effectively, given that the trial is less than two months away.

“They are in a terrible mess. Of the disclosure, this case has been awful,” the British lawyer lamented. “Notwithstanding your imploring them to be focused in economical in May, the list of exhibits has quadrupled.”

Although Korner acknowledged the concerns raised by Haynes, she noted that digital tools could assist in managing large datasets.

On the contrary, Korner advised ICC prosecutors to reduce the number of their witnesses so that they could conclude the case as “quickly as possible.”

Prosecutor Edward Jeremy, however, countered that their proposed 193 hours to present their case was already the trimmed version of their initial target.

Previously, Korner instructed the prosecution to limit the presentation of evidence to speed up proceedings, citing Duterte’s advanced age and supposed frail condition.

She also ordered ICC prosecutors to avoid redundancies and restrict video, audio, and testimonial evidence to the strict minimum required. During the previous conference, she took issue with the prosecution’s plan to submit 197 speeches of Duterte as part of their evidence.

In a filing two days before the latest status conference, Haynes claimed that Duterte still suffers from significant memory impairment, preventing him from retaining recent information and reliably accessing memories.

Duterte’s condition, he alleged, makes it challenging for his lawyers to engage him meaningfully with the charges, the alleged incidents, and thousands of disclosed items of evidence.

Haynes claimed that Duterte could barely recognize him as his counsel, as well as his family, and that there were instances that he thinks “he is living in 2007 or 2008.”

“The Trial Chamber cannot be expected to treat these severe limitations in his abilities as mere underperformance on the part of the accused – particularly where none of the experts has suggested that such underperformance was deliberate – without first being fully apprised of the existence of any underlying pathological condition capable of explaining the impairments identified,” Haynes said in the filing.

As a result, the defense urged the chamber to conduct another round of medical examinations allowing a neurologist and other medical experts to assess Duterte’s health anew and determine whether he remains physically and mentally capable of attending the trial.

Korner confirmed that the chamber will address the defense’s pending motions before the trial.

The ICC Trial Chamber III had already ordered a new set of court-appointed experts to reevaluate whether Duterte is fit to stand trial.

In January, a separate panel of experts found that Duterte is still capable of attending the proceedings, contradicting the defense’s claims of cognitive impairment and unexplained weight loss due to aging.

Duterte faces three counts of crimes against humanity of murder for the killings of 78 individuals, including six children, allegedly suspected of drug dealings from 2013 to 2018, spanning his tenure as Davao mayor and as president.

It also covered the summary killings purportedly committed by the so-called Davao Death Squad, which was founded and headed by Duterte, as alleged by ICC prosecutors.