[Decision with No Mention of the Tablet PC]
Extending her arrest, onerous trial schedule, live broadcast of the the sentencing...The Judge Kim Se-yoon, the name which will live in infamy.....
The court not only failed to mention the "tablet PC" in the 2-hour long broadcast of the district court sentencing on the 6th from 2:10 pm. It also made no reference to it in the press release distributed to legal reporters.
Prosecutors have argued that the tablet PC which was submitted by JTBC is the central evidence that proves the charge that Park Geun-hye leaked state secrets. However, according to the results from the National Forensic Service (NFS), the tablet PC was used by more than one user and there was no document editing program for speeches. Also, the photo of Ms. Choi Soon-sil's nephew had been planted improperly.
The public had a great interest in whether the court would admit the tablet PC as evidence. Defence counsel Lee Kyung-jae's written statement was announced when the court ended the live broadcast without mentioning the tablet PC at all. By the way, it was discovered that the tablet PC was mentioned in the court opinion in an exclusive report by JTBC in the evening that day.
Presiding Judge Kim Se-yoon chose the approach of excluding all the media except JTBC in order to admit the tablet PC which was allegedly owned by Choi Soon-sil, but with little evidence to prove it, so that Ms. Park could be charged with revealing state secrets. - Notes by Editor
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Defence counsel for Choe Seo-won (aka Choe Soon-sil), Lee Kyung-jae, criticized Judge Kim Se-yoon by quoting a maxim, Yuchuimannyun (유취만년 A bad name will live in infamy for thousands of years.)
On the 6th, Lee Kyung-jae, told Judge Kim Se-yoon, who sentenced Park Geun-hye to a lengthy, 24-year imprisonment, that "I fear that the name of the judge will live in infamy for thousands of years because of this ruling and his live TV broadcast."
▲ Defence counsel Lee Kyung-jae commented on the 6th that he is worried that Kim Se-yoon's 'name will live on in infamy.' Photo = YTN Capture
Mr. Lee strongly criticized the court for not mentioning the tablet PC that was submitted by JTBC as evidence, even though the court found Ms. Park guilty of disclosure of state secrets in the course of official duty.
Mr. Lee pointed out that, "The trial court delayed for nearly a year the verification and testimony of the JTBC's tablet PC, which is the central evidence for the fabricated allegations for interference with the state affairs, and later the court failed to mention the tablet PC even though it admitted into evidence the forensic report from the National Forensic Service (NFS). These make the court's decision grossly unjust."
With regard to this, Mr. Byeon Hee-jae, CEO of Media Watch, said the Evidence of Impeachment motion put by the National Assembly on December 8, 2016 only included 21 unverified news reports written by JTBC and other newspapers. He also stressed that it was the planting of false evidence in the tablet PC that led to the search and confiscation of The Blue K, and the detention of Jeong Ho-seong and Ahn Jong-beom, which were a fraud and this was a politically orchestrated impeachment.
Mr. Byeon said if the forensic report on the tablet PC by the National Forensic Service (NFS), admitted as evidence by Kim Se-yoon, says that JTBC has not planted or doctored anything in the tablet PC and the tablet PC scientifically belongs to Choi Soon-sil as alleged by Son Seok-hee and JTBC, there would be no reason not to admit it as evidence for this trial. He also asked why the part that "She edited the speech on the tablet PC" was missing if the JTBC reports were true.
The following is the full transcript of the statement by defence counsel Lee Kyung-jae in response to the district court ruling.
On the grave errors related to the sentencing by the district court of former president Park
April 6 2018. Lee Kyung-jae, esq., Dongbukah LLP
1. The 22nd criminal department of the Seoul Central District Court (Judge Kim Seo-yeon) sentenced former president Park to 24 years in prison and a fine of 18 billion won for her alleged interference in state affairs.
· As this sentencing was already anticipated when presiding judge Kim Se-yoon sentenced Choi Seo-won to 20 years in prison with a fine of 18 billion won in February 13, 2018, there is nothing new.
· The legal ground for this sentencing by judge Kim Se-yoon was mere reference to the reasons for the related cases such as Choi Seo-won and defendants Kim Jong and Cha Eun-taek.
· If there is a conspicuous point in this sentencing, it would be the exaggerated and harsh rebuke for former president Park stated in the reasons for sentencing.
2. A major error in the course of proceedings and sentences up to the sentencing of this case.
(1) Prolonged, Arbitrary Arrest and Improper Interrogation
· In this case former president Park was sentenced on March 31, 2017 after almost one year in detention after her arrest.
· From the beginning, the interrogation was not feasible within the six month period given by the arrest warrant.The court then unlawfully issued a new arrest warrant at the end of six months, before the old warrant had expired. Such unlawful extension of detention violates the principle against arbitrary prolonged detention under UN Human Rights rules.
· Former president Park refused to appear in court for the presiding judge's sentencing based on the erroneous application of law, leading to the trial being crippled. Such a crippled trial was entirely due to Judge Kim Se-yoon's fault. He followed only the superficial formalities of procedural due process, and turned a blind eye to the principle of protecting human rights laws relating to the arrest and detention period in criminal procedures.
(2) Proceedings that Amount to Physical Pain
Presiding Judge Kim Se-yoon pressed on with three to four trials a week as he was running out of time in the detention period, during the trial of former president Park. The defendant's life and health were not his interest. Judge Kim's trial conduct shows that he treated Park as simply an object to be judged or a means to achieve his objective of trial. Although she stands before the court as a defendant, the defendant is a subject of criminal procedure, and her proper rights, dignity and honor as a human should be respected. However, none of the proceedings in this trial were based on such principles.
(3) Conspiracy with Choi Seo-won and the Evidence for it
· There is no direct evidence that Park conspired with the defendant, Choi Seo-won (particularly in regard to bribery).
· In addition, the court and the prosecution acknowledged that Park received no gain in relation to this. If it accepts this, the court had to look at whether there was a significant motive for Park to commit the crime of bribery for Choi Seo-won or her daughter despite impeachment, arrest, and harsh punishment, but the court didn't consider this at all. There is no serious crime without a criminal motive. Moreover, bribery is not an impulsive or heat-of-the-moment crime.
· As in the case of Choi Seo-won, the evidence of conspiracy only includes ① number of phone calls and ② some words scribbled in former Senior Presidential Secretary Ahn's notebook. Other points are nothing but conjectures and speculations. In fact, there were evidentiary documents and facts which are more persuasive, proving they were not bribes. However, when there was uncertainty, the ruling was in favor of the prosecution and not the defendant.
3. Illegality of the Live TV Broadcast of the Sentencing by the Court
(1) Judge Kim Seo-yoon flatly denied Park's refusal to participate in live broadcasts, and broadcast the hearing live, giving the reason of "being in the public interest".
(2) The judge justified this by citing the "public interest" of satisfying the "people's right to know." However, this was a public trial, and even if it was not covered live on TV, reporters from the press reported the entire trial process and its news, inside and outside Korea, in real time. In that sense, " the people's right to know" is not the same as live TV broadcasts, and satisfaction of "the people's right to know" is not a just reason for this.
(3) The areas of public interest that the judge should serve are that ① the defendant's human rights are respected in criminal proceedings and the principle of presumption of innocence is observed and ② the trial was not held in camera by a presiding judge or a public prosecutor, in order to administrate judicial justice through a fair trial.
· The reason for not broadcasting the running of prisons is to respect the basic human dignity of the prisoners, rather than the general deterrence effect.
· As this is the case for the convicted defendant, it is abhorrent for the district court trial of a political case in which the innocence of the defendant is highly contested, to be commented on by the presiding judge on TV, with his comments then being aired in Korea and abroad. Given the mass media's ripple effect and sensational impact, presumption of innocence for former president Park and her accomplices was no longer available in the public's view.
· Thus, the presiding judge failed to secure the following principles of criminal procedure and thereby hurt the public interest of justice:
① Respect for the human rights of defendants
② Principles of presumption of innocence
· In other trials relating to interference in state affairs, the judge himself or other court judges have never broadcast the trials for the reason of public interest, without the consent of the defendant, and the media did not raise any objection to this. Even in this case, the media made no request to the court to broadcast the trial live without the defendant's consent.
(4) Eventually, this TV live broadcast was a measure to unilaterally proclaim the presiding judge's rationale for the sentencing for his benefit only, and it has the effect of making it a matter of fact by impressing the district court trial on people's mind and condemning former president Park and her sentence to harsh punishment, even though her guilt or innocence had not yet been decided.
4. Final Words
· The fact that the authentication of JTBC's Tablet PC evidence was delayed for nearly a year, though it was the central evidence of the allegation of the fabricated interference of state affairs, and the fact that the court failed to mention the tablet even though its forensic report was admitted as evidence, show that the sentencing was unjust.
· It is expected that this case against Park will become a model of a "mis-trial" that will go down in history, contrary to the intent of the judge, for all the wrong reasons.
· The judge speaks in and is responsible for the sentencing. I am very concerned that this sentencing by the judge and the live broadcast on TV may have brought infamy onto the judge.
Lee Woo-hee, Reporter
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Related article: Choi Soon-sil - Transcript of key points from Attorney Lee Kyung-jae’s Final Oral Argument
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