[Adamanta]

THE POINTING ROOM - Go directly to jail, do not pass lawyers and do not collect advice

Bangkok Post, 24th February 2008

Suspects in criminal cases in Thailand are routinely asked to make a decision on which their entire future hinges with no access to legal counsel, and under very intimidating circumstances, writes FRANK LOMBARD

It is called Hong Chi, or the Pointing Room in English. Readers may have never heard of it. It is not in law textbooks, nor does it appear in the judges' qualifying exam. But it does exist at every criminal court in the country- and it is off-limits to the public and lawyers of any type.

This is where the accused first face the judiciary. Those without bail and lawyers have a particularly difficult time. They are asked to stand in front of two judges and plead guilty or not-guilty to a set of accusations they have only heard just a couple of hours before.

In small cases in which the maximum jail term is five years, if the suspect pleads guilty, he is immediately sentenced. If he pleads not-guilty, the case is set aside for trial and a lawyer or public defender will be required.

All those not on bail in Bangkok take turns being bussed to the various municipal courthouses from the Klong Prem Central Prison every workday morning. Some of the parties may be innocent but they, indeed, look very guilty. The men are in leg irons, short pants and T-shirts. The women are in brown prison uniforms but without chains.

Upon arrival, the final indictment (or kum fong in Thai) from the prosecutor is passed out, giving them an hour or two to decide their plea. No telephone calls are allowed. The Corrections Department does not announce prisoner transfers because of escape attempts so lawyers and relatives might well miss the event.

With no attorney, the defendants cannot talk to the judge once inside the Pointing Room. They answer only yes or no. With a court-ordered delay, the accused could return more properly prepared. However, delays require serious legal coaching and risk a harsher sentence.

The bailed-out privileged class also go to the same Pointing Room. They enter through the front door marked Entrance Strictly Prohibited, the only restricted courtroom in the building. They might have a look at their chained compatriots who enter wall cages from a rear entrance. Indictments for the more affluent would be available in advance, giving sufficient time to consult lawyers.

In Thailand, the police, prosecutor, defence and the courts all act independently. There are no pre-trial hearings. At the Pointing Room, the judge and the defendant are in the same boat, neither has seen any police evidence. There is no discovery method, as practised in the West, where law enforcement must reveal its case before a plea is entered.

Thais look upon plea-entering as a normal bureaucratic routine. It is not. It is quite likely the most important decision of the suspect's life.

The system here does not imitate the West. A judge in the US might be suspicious of a guilty plea and cross-examine the defendant, with or without a lawyer, to make sure he understands what he is doing and is not being coerced. If the judge still has doubts, he might order a sanity test.

A young lawyer from the Lawyers Council of Thailand summed up the Thai attitude: "By the time you get to the Pointing Room you should well know whether you are guilty or not."

However, the question is not the moral one of guilt but the legal one of : Can you fight the case? There are cases an angel could not fight. In preparation, you need to study the situation with an attorney and have time to prepare the plea. Thailand may be the only country in the world that does things in such a hurried fashion.

For the Thai scene, a lawyer is even more critical. Plea bargaining takes the form of a 50 percent reduction for confessing to the court. Fifty percent of what is not clear. This must be weighed against running a lengthy trial and the enormous penalty associated with losing.

We know many an innocent man will irrationally plead guilty. There are some very practical reasons as well. The accused or his family may be confronted with threats or sweeteners. Running a trial means blaming someone else. Lengthy trials can also be expensive in hiring special investigators to recruit witnesses.

If you win your case, you are free and given 200 baht per day for your time locked-up. The tendency is to plead guilty.

The Mouse's case

I learned about the Pointing Room as a result of my attempts to assist a former student. She is very young lady, so let's call her the Mouse.

Shortly after high-school graduation the Mouse was arrested with a small, but serious amount of amphetamine (yaa baa) pills in her room. Under extreme duress she signed a confession at the local police station - well aware that it could be denied in court. She did so without the presence of a lawyer.

She was then held for 48 hours before being taken for a bail hearing. The bond was unaffordable and like all criminal cases in Bangkok she was moved to the Klong Prem Women's Central Prison where she waited her court hearing for 72 days.

Shortly after the arrest, I went to my usual international law firm, one of the finest in town, and three young attorneys agreed to take the case. The defence team was of tremendous therapeutic value but had little legal role to play. Before a trial, the government just about ignores the defence.

I should remind the reader at this point that this is a Thai-Thai story and I am the only foreigner involved. Overseas inmates at Klong Prem Central Prison have embassy privileges, like uncensored mail and face-to-face lawyer contacts.

We could not even find out what the charge was. The arresting police officer told our lawyers that the case was out of his hands.

Inmates, unashamedly, wear their crimes and sentence around their necks. So it was only during a prison visit that the family read the charge from the Mouse's new ID card. She was furious that she faced the more serious offence of amphetamine distribution. The penalty is a mandatory minimum of four years up to death, all depending on the judge.

The familiar maxim "Justice delayed is justice denied" does not apply. Police, with court permission, can unilaterally extend the preliminary court date up to 84 days. After that, the defence normally has only a couple of hours to respond to the final indictment.

Lastly, despite two personal trips to the public prosecutor by our attorneys, officials would not or could not release the final indictment.

That indictment passed out just prior to entering the Pointing Room, reads like a carbon copy of the original police confession except for the weight of the pills. This is done in a police laboratory and the results go unchallenged.

Invitation to a guilty plea

The Mouse's indictment said, stripped of boiler-plate legalese: "Police have seized xx amphetamine pills in an area under your dominion and control. The total weight of the pills was x,xxx milligrammes. The active substance was xxx milligrammes. This was over the 375 milligramme standard, classifying you as a distributor."

The dominion and control phrase cleverly gets around police search warrant violations. The defendant and witnesses to the noisy affair firmly testify that the arrest was made inside her private dwelling.

The clincher is in the last line, which amounts to an invitation to plead guilty. It says: "The defendant is not to be permitted bail because she might flee." This means she would have to fight a time-consuming, hyper-tension filled trial from inside Klong Prem.

Imagine waiting your court sessions every month or two, for a year or two, sleeping on your side body-to-body, packed in like sardines to save space. A nocturnal trip to the toilet can involve a 20-minute wait. It also means tripping over limbs and curses from the sleeping.

You have unlimited weekday visits from your lawyer who talks to you though a microphone. However, you are not allowed writing materials to take down notes. There is no physical contact so he cannot even pass you a name card. The Mouse only knows her lawyer by nickname, no surname, no telephone number or affiliation.

Prisoners, unlike judges, are cut off from all current events and would not have immediate news on their own case. For example, in the past several months, inmates knew nothing about the rioting in Burma, the King's illness or the Thai general election on Dec 23. Come January, they did not know we had a new prime minister.

So, back at the criminal court, the Mouse had to make a decision based on the prosecutor's indictment and our lawyer was of no help. He read the indictment and fled the scene after telling us that lawyers were not allowed in the Pointing Room.

That was news to him and shocking news to me but it was not news to the Mouse. She just failed to inform her defence team. From tales of returning convicts, everyone at the prison knows that they are going into a room off-limits to lawyers.

Lawyers? The day I was at the Ratchadapisek Criminal Court there were about 150 queuing up for the Pointing Room and my lawyer was the only one on the floor. You spot these guys by their neckties.

I can also say, and I welcome any challenge, that my lawyer was the first in the entire history of Klong Prem Women's Central Prison to actively participate in pre-trial interviews. I have heard of others with private attorneys, but they did not meet their clients until the trial was underway. Thais think lawyers are for trials only. Pleas you do on your own.

Women's Central Prison inmates are pretty well advised and much of it comes from library books and free seminars sponsored by the Corrections Department. The sessions are led by female inmates, with experience in prosecution and defence, who have unfortunately fallen foul of the law.

The trouble is that these inside experts, without personal consultations, are encouraging fellow prisoners to fight their cases. This may not always be the wise thing to do.

The Mouse went into the Pointing Room and decided on her own to plead guilty. She imitated the girl ahead of her in the queue who pleaded guilty and got a death penalty reduced to life.

The Mouse ended up with a two-year sentence and a 200,000 baht fine, the lowest mandatory for a first-offence amphetamine distributor, a lucky mouse indeed. If she had lost at a full trial, it could have been ten years.

The arrest

Let's go back to the arrest. The Mouse was evicted from a government housing project and temporarily located herself in an adjoining slum. Four plainclothes policemen burst into her rented room without a search warrant and three of them were familiar to her because of their gambling surveillance.

So who planted the dope? The room, generally unlocked, was in an environment replete with blaring TVs, screaming kids, roaring motorcycles, beggars, gamblers, drunks, dope addicts, undercover cops, mosquitoes and occasional whiffs of untreated sewerage.

After a short time at the police station, the Mouse signed the confession with full awareness that it could be retracted in court. No copies allowed. As a bonus for signing, the police took away 1/3 of the amphetamine pills from the charge. With one more pill, she would have had affordable bail. If she did not sign, they threatened to add more pills to the pile.

On arrest day, she was not allowed to use the telephone or to receive visitors. In addition, the police took away most of her pocket cash, a CD player and Buddha amulets of no value to anyone but the Mouse.

It is not generally known, but you have Miranda rights at police stations as far back as the Thai Criminal Procedures Code of 1984.

This is the equivalent of what the Thai police are required to read to anyone in custody, not necessarily even arrested: "You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning."

There are no lawyers at any police station in Thailand, which means that everything that goes on there can be thrown out by a judge. All is not lost, however. Law enforcement would then have the more difficult task of putting the case together from witnesses.

It is ironical that the rights you have at a police station are lost once you get to the courthouse.

This is the second part of a series on the lack of due process in the Thai criminal justice system. The first part, by TUNYA SUKPANICH, was published on Feb 17, 2008.

OFFENCES OF FEMALE INMATES NOT OUT ON BAIL

Several dozen women from the Central Women's Prison are bussed to court for hearings each workday morning. Their names and criminal charges are listed on the visitors bulletin board.

The following data was taken from the board and applies only to felonies of women who could not afford or were denied bail. While unofficial, it may give some idea of the offences involved.

Of 523 cases tabulated randomly between 19 October and 23 November 2007, the breakdown is as follows:

1. Amphetamines or yaa baa 59%

2. Other narcotics 6%

3. Non-violent thievery 7%

4. Murder and assault 3%

5. Prostitution less than 1%

6. The other 24% were white-collar crimes: bad cheques, embezzlement, forgery, immigration violations, money laundering and swindling.

Note the absence of violent crimes. The preponderance of amphetamines is typically attributed to persuasion from boyfriends. Other narcotics were dominated by ice. Heroin, opium and marijuana offences were negligible.

There were two incidents of an amphetamine pill and one would think the bail affordable. The prostitution offences were more likely brothel owners and pimps. Interestingly enough, there was one case of tax evasion and another called electronic crime, probably an ATM.