Lebanon News

STL judge asks ‘Why now?’ as defense seeks to disallow witness

BEIRUT: Two defense teams made their case to the Special Tribunal for Lebanon Trial Chamber Wednesday on a motion filed April 29 that sought to disallow witness Andrew Donaldson from testifying on the grounds he lacked needed expertise. Donaldson, a cellular networks expert, is a former analyst for the Office of the Prosecutor. Although he has appeared to give testimony to the STL multiple times in previous years, the prosecution’s recent decision to call Donaldson to the stand has suddenly raised opposition from the defense.

In Wednesday’s session, defense teams for Hassan Merhi and Salim Ayyash – two of the five indicted over the assassination of former Prime Minister Rafik Hariri and 21 others in 2005 – gave their reasoning behind the April 29 motion.

“The issue of Mr. Donaldson’s purported expertise was never litigated and there is no decision of this Trial Chamber declaring Mr. Donaldson to be an expert in any area,” Article 3 of the motion read.

In the fourth article of the motion, the defense pointed to the limitations to Donaldson’s knowledge of so-called co-location evidence – an aspect of the cellular data used extensively by the prosecution to identify and track the five thought to be behind the assassination. Co-location data, used throughout the trial, denotes instances in which multiple cellphones attributed to a single individual made calls from the same area of cellular network coverage within a short time period.

“The prosecution has not sought to prove that Mr. Donaldson has the requisite specialized knowledge [in co-location] necessary to provide the expert evidence in the attribution reports,” the motion read.

In the most recent hearing on May 9, Donaldson appeared before the Trial Chamber to defend his qualifications. He maintained he was qualified to provide expert analysis on co-location evidence.

“There is no [university] degree in co-location or specific training. Mr. Donaldson’s experience was developed on the job ... We cannot disregard 10 years [of experience],” prosecution counselor Laurence Carrier-Desjardins argued at the time.

Donaldson has been involved as an expert on cellular data in numerous other trials over many years.

At Wednesday’s hearing, Judge Re, president of the Trial Chamber, repeatedly questioned why the defense had raised this issue recently rather than object to Donaldson’s expertise in previous appearances.

“It doesn’t seem like the defense has [prioritized the] expedience of the trial when filing motions [on] the eve of a crucial witness’s testimony,” Re contended. Defense counselor Dorothee Le Fraper du Hellen responded, claiming Re was implying the defense deliberately waited to file the motion to bog down the tribunal’s progress. “The fact that we waited has a connotation – it seems to suggest this was done deliberately, which is by no means the case,” she said. “You know well, before Mr. Donaldson appeared, other important witnesses also appeared. A lot of work was done on our part to prepare for evidence ... To suggest we did this deliberately, I must confess I would challenge that position.”

Re, unsatisfied with the explanation, stated he was “still no wiser” as to why the defense chose to make the motion so late, when Donaldson’s appearance before the court was scheduled months in advance.

“Three years back, we had a number of things to deal with. There were also six months of political witnesses who came and went. So we have to work through the witnesses that come,” Le Fraper du Hellen said.

A final decision on whether Donaldson will testify was not made.

A version of this article appeared in the print edition of The Daily Star on May 18, 2017, on page 2.




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