M. Bakri Musa
The revelations from the coroner's inquest into the death of DAP political
activist Teoh Beng Hock eerily reminded me of a similar tragic death of
the CIA bio-scientist Frank Olson in 1953. Olson was found dead sprawled
on the street outside a <?xml:namespace prefix = st1 ns =
"urn:schemas-microsoft-com:office:smarttags" />New York high-rise hotel
where he had spent the night with his colleagues.
The official report was that it was a suicide. Two decades
later, as a result of disclosures from the Rockefeller Commission,
President Ford apologized to the deceased's family, accompanied by a
sizeable monetary settlement, over the 'tragic accident' of Mr. Olson.
Still not satisfied, the family secured a court-ordered
reexamination and Olson's body was exhumed in 1994. Despite being over
four decades later, through expert independent forensic examination the
gruesome truth was finally revealed. His death was neither an accident
nor a suicide; it was plain cold-blooded premeditated homicide. His
colleagues murdered him. They did it by knocking him unconscious and
then threw his body out.
The lead investigator, James Starrs, recounted the details in
his book, A Voice for the Dead: A Forensic Investigator's Pursuit of the
Truth in the Grave. More significantly, prior to Starrs' investigation
the Olson case was celebrated in the annals of the CIA, as well as the
Israeli Mossad, as the example of how to execute (pardon the morbid
double entendre) the "perfect murder" so as to be seen as either an
accident or suicide.
I do not imply that this is the case with Teoh's death. I
doubt whether MACC's officials have heard of the Olson case or read
Starrs' book. However, we have seen many 'accidental' deaths involving
Third World opposition leaders. Locally, Anwar Ibrahim's notorious
bludgeoned face was initially dismissed as "self-inflicted!"
As Starrs stated, forensic science can be superior to a
confession and even eyewitness accounts. It is the most empirical and
objective of all judicial methods in finding the truth.
That notwithstanding, if Teoh was murdered, the murderer would
not likely leave obvious clues around unless he (or she) was unbelievably
stupid, or very brazen and thus wish to make a point. Meaning, there
would not likely be any dramatic revelations or Perry Mason moment during
the inquest. That however would not necessarily discourage the Perry
Mason pretenders from among the many participating lawyers.
The path to the truth in this case, as with Olson's, will be
long and arduous, with many twists and turns as well as false passages.
We may never know what really transpired. Nonetheless that does not
discourage many amateur 'forensic scientists' especially in the local
blogosphere. Their exuberantly confident analyses suggest that they have
been reading too many medically-related articles from Reader's Digest and
viewing too many CSI series.
Also as with the Olson case, the pivotal clues (at least
initially) would not necessarily come from the autopsy table but from
careful interviews of the involved personnel, examining their phone
records, and carefully accounting for their activities on that fateful
day.
Wise Move to Videotape the Proceedings
The Attorney-General has been much criticized lately, and deservedly so.
However in this instance I compliment him for videotaping and then
posting the tapes unedited on the web. This singular move does more to
demonstrate the government's commitment to transparency than all the
ministerial speeches and assertions.
I would have gone further and put all the exhibits including
the victim's photographs (subject to the next-of-kin's consent) on the
web.
I was impressed with the professionalism of the coroner, Azmil
Mustapha Abas, and lead counsel Tan Hock Chuan. I was less so with the
other lawyers representing the various interested parties. Azmil's calm
demeanor reassured the various witnesses, a key to getting the most out
of them. Tan skillfully led the expert witnesses, in particular forensic
pathologist Khairul Azman Ibrahim, to describe the clinical findings in
understandable layman's terms and to consider each of the three possible
causes of death – accident, suicide or homicide – despite the pathologist
being under the weather. I hope he was screened for H1N1 before his court
appearance!
There was a brief digression in court on the National Language
Act. It served no purpose except that I wished our language nationalists
were present to witness how inadequate our national language still is
even in a relatively non-technical court setting. Imagine litigations
involving complex finance!
I brought up this language issue for another reason. It is
obvious that even highly educated Malaysians (like lawyers) are unable to
string simple sentences in either complete English or Malay. Thus,
counsel for Teoh's family, "Can you beri tahu kami maana Perunding Kanan
…."
There was nothing technical there, just simple ideas, yet they
could not coherently articulate them using a single language, confirming
that 'rojak Malay' and 'pidgin English' are our two official languages.
Apparently the counsel for Teoh's family confuses an inquest
with a criminal trial. In the former you want your witnesses to agree
(or at least not disagree) with your interpretations of the evidences.
With the latter you want to chip away at the credibility of your
adversary's witnesses. Badgering and belittling an expert witness may
make you look smart to the gallery but would not advance your cause.
Teoh's counsel's suggestion that the government provides
pathologists with tape measures so they could hang themselves
precariously outside windows to measure the height of buildings is simply
laughable. If you want to know the height, get the architect's drawings!
Besides, after you have fallen through 13 stories, what is the difference
of a few feet? Precision without meaning! Such precise measurements
would be relevant if you had fallen from a tree.
A key to undermining or at least challenging an expert
witness's testimony would be through careful questioning of his or her
credentials and experiences. Teoh's counsel tried this, but not very
effectively. He asked how many such similar forensic cases Dr. Khairul
had done. More appropriate would be to ask when was his last similar
case, and the effect of his findings on the final verdict.
I am never impressed with credentials and titles, especially
the Third World variety. When I was in GHKL, there was a Sikh surgeon
with the imposing title of "Director of Casualty Department." He also
had the prestigious (I assume) "Senior Consulting Surgeon" appellation.
All he did was sit in his office and never saw a patient; he was waiting
out his "medical board" (disability retirement).
Similarly you may have an imposing title of Professor of
Surgery, but if the only 'cutting' you had done recently is carving your
wife's turkey dinner, that fact could only be established through a
careful cross-examination.
I was an expert witness once when the opposing attorney tried
to undermine my credibility by asking whether I was being paid to
testify. I unhesitatingly replied, "Definitely!" and then quickly added,
"But not enough to compensate for my being away from the operating room!"
His attempt to portray me as a professional armchair 'expert' backfired.
He had obviously not learned what skilled trial lawyers intuitively know,
that is, never ask your witness a question you do not know the answer
ahead of time!
Having once been a government doctor in Malaysia, I have great
sympathy and empathy for the government's expert witnesses. I am certain
that when Drs. Seah and Khairul left the courtroom, they had a mountain
of work waiting for them at their respective labs. They have other
pressing priorities than to appear slick and confident in court. And
especially with Dr. Kahirul, as he was feeling miserable! Besides, they
do not have the luxury of time or resources to prepare for such
appearances; nor are they paid extra to do so.
What the seekers of truth and justice for Teoh should have
done was not to demand an inquest or a royal commission but the right to
a court-approved independent and independently-funded forensic
investigation, a qui tam inquest as it were. Such investigations are not
cheap, and the government rightly has other priorities. So it would not
be fair to ask them to devote its scant resources to that pursuit.
However there should be sufficient support from NGOs, friends and
supporters of Teoh as well as those who seek truth and justice to fund
such an endeavor.
Short of that, we should not expect a Perdana quality on a
Perodua budget.
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