Article Criminal Defense in Crisis: Training Public Defenders in Myanmar, 0219 UTBJ, Vol. 32, No. 1. 28

Author:by Kate Conyers.
Position:Vol. 32 1 Pg. 28
 
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Article Criminal Defense in Crisis: Training Public Defenders in Myanmar

Vol. 32, No. 1 Pg. 28

Utah Bar Journal

February, 2019

January,

2019

by

Kate Conyers.

EDITOR'S

NOTE: A previous version of this article appeared in

the Bar and Bench. See Kate Conyers, My

Unusual' Attorney Experience: The Time I Trained Public

Defenders in Myanmar, Bar and Bench, Fall 2018, at

11-16, available at http://slcba.net/wp-content/

uploads/2018/10/Bar-Bench-Fall-2018.pdf (last visited Dec.

14, 2018). Ms. Conyers has expanded upon her experience in

Myanmar for publication in the Utah Bar Journal.

From

March to July 2018,1 had a unique experience that has forever

changed my perception of our American criminal justice

system. During that time, I volunteered as a Fellow for the

International Legal Foundation (ILF) and was tasked with

training new public defenders in Myanmar. ILF is an

international nongovernmental organization that assists

post-conflict and transitional countries in establishing

public defender systems that provide effective, quality

criminal defense services for the poor. During my time, ILF

had two offices in Myanmar: the first in the country's

largest city, Yangon, and the second in a smaller city,

Mandalay It has since opened three more offices around the

country, including in the Rakhine State, where the atrocities

involving the Rohingya Muslims took place. I spent most of my

time in Mandalay.

I

learned about the opportunity to serve as an International

Fellow through a weekly listserv sent from the American Bar

Association's Standing Committee on Legal Aid and

Indigent Defense. My interest in the fellowship stemmed from

my practice as a public defender for eight years at Salt Lake

Legal Defenders and my undergraduate education in

International Relations, Asian Studies, and Human Rights Law.

I chose to apply because I needed a new challenge and I

sought a greater appreciation of our criminal justice system

by comparing it to others.

Myanmar

is a large country formerly known as Burma in Southeast Asia,

bordered by India and Bangladesh to its west, Thailand and

Laos to its east, and China to its north. Roughly, it is

pronounced as "ME-an-mar." People who live there

are also referred to as Myanmar people, and the language they

speak is Myanmar. While the people in Myanmar do speak some

English (it is taught in public schools), it is not commonly

utilized by professionals outside of international business.

Without

knowing the language, I was still able to train public

defenders with the resources ILF provided to me. Thankfully,

the four main sources of law applicable to its criminal

justice system – Myanmar’s Constitution, the

Rules of Criminal Procedure, the Evidence Act, and the Penal

Code – are all published in both Myanmar and English

with English on the left side of the page and Myanmar on the

right side of the page so they easily track each other. ILF

also provided me with an interpreter/translator that doubled

as the office paralegal so that I could communicate with the

two lawyers in each of the offices. To further assist its

Fellows, ILF also compiles a working draft of its

“Myanmar Practice Manual” (the Manual or Practice

Manual) that identifies common practices in the criminal

justice system. ILF staff and Fellows regularly update the

Manual with suggestions, wins and losses, and practical tips

to improve our understanding and practice of the law. Armed

with these resources and my own knowledge and experiences in

the American criminal justice system, I was able to

successfully train and improve the skills of the four lawyers

and two paralegals (and ideally others in the legal system)

as well as update the Practice Manual to the benefit of

future Fellows and lawyers.

After a

few days of reviewing the laws and the Practice Manual and

watching the attorneys in court, I came to realize that for

the most part, Myanmar is missing the “big five”

rights (as I have been calling them) that our American

Constitution guarantees criminal defendants. In Myanmar,

there is:

• no presumption of innocence

• no right to counsel

• no right to remain silent

• no right to a jury trial

• no right to appeal

In

addition to this, there is no designated method to bring

pre-trial motions and judges rarely acquit because they

believe doing so indicates that the judge has been bribed. To

most (including most of the criminal defense attorneys I saw

in Myanmar), the only way to succeed in this reality is to

bribe the police early on with the hopes it will prevent a

case from even being filed in the first place. Once a trial

starts – a week or two after filing – it seems

that there is nothing to do except to prepare a client for a

long prison sentence. ILF, like most other legal aid offices,

has a strict “no bribery” rule; instead, it

utilizes fellows to train its attorneys to fight practically

everything in every single case. Doing so trains the

attorneys as well as the prosecutors, judges, and even other

criminal defense lawyers about the rights defendants have or

should have. In the one year that ILF has been operating in

Myanmar, it has found ways to successfully challenge evidence

and judicial rulings. I even assisted in getting a case

dismissed (which involved about six male defendants ages

eighteen to twenty-two facing seven to twenty years in

prison).

On top

of all of that, Myanmar’s criminal justice system does

not seem to be governed by generalized standards. ILF found a

Myanmar Supreme Court case that has been repeatedly upheld

that holds the government must prove its case “beyond a

logical doubt,” but...

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