Skadden Arps Report Vindicates Ukraine, Demolishes Tymoshenko

Some time ago, the government of Ukraine hired Skadden, Arps, Slate, Meagher & Flom LLP, an AmLaw 100 law firm (that is, one of the largest and most expensive in the United States and the world), to undertake a systematic review of the trial of Yulia Tymoshenko, to identify any shortcomings by the prosecution and the court, and to determine the merits of Tymoshenko’s allegations against the government.

In a report released Thursday morning (a copy of which may be obtained here), the firm entirely debunked Tymoshenko’s allegations of selective prosecution, spent an enormous amount of time on Tymoshenko’s contempt of court and efforts to make her own case a farce (and the effect on her trial), and examined the court’s efforts during the trial.

To their immense credit, Skadden Arps insisted on complete independence in their investigation and full access to all relevant materials and witnesses. Based on their statements and the report, it would appear that they got everything for which they asked.

The result is a report that leaves no doubt about and outlines in exacting detail the factual underpinnings of Tymoshenko’s wrongdoing, examines each of Tymoshenko’s claims for why she should not have to face prison time for breaking the law, and largely exonerates Ukraine of wrongdoing in her trial and subsequent conviction.

Turning to the largest issue in the case, Tymoshenko’s claim that her prosecution is not merely selective but politically motivated, Skadden Arps notes that she has adduced not even a scintilla of evidence for this other than mere accusations. So complete is the absence of any evidence of wrongdoing, as Skadden Arps recounts, that even Tymoshenko’s appeal to the European Court of Human Rights is totally bereft of any sort of evidence. In a report that goes to extraordinary lengths to be even-handed, the final verdict on the allegation of selective prosecution is damning. “Based on the record, Tymoshenko has not provided clear and specific evidence of political motivation that would be sufficient to overturn her conviction under American standards.”

It is no wonder that the Ukrainian opposition is currently squealing.

The report also recounts in extraordinary detail behavior that would have a defendant held in summary contempt – arguably criminal contempt, which is the hardest sort to obtain – in an American court. Just to take a smattering of examples from the report, Tymoshenko took the opportunity of the trial to publicly insult government officials present in the courtroom; to refer to the prosecution as hired thugs for a natural gas company; and to call the judge, over the course of her lengthy trial, “worse than the Nazis,” “executioner,” “fascist,” “monster,” and “puppet.” Never one for understatement, Tymoshenko at one point demanded that the judge provide her a loaded firearm so she could simply kill herself rather than bother with the courtroom.

As courtroom practitioners are aware, in this country, pro se defendants are given extra leeway that would never be afforded attorneys. However, not only does this level of abuse pass far beyond what any judge would tolerate in his courtroom, but many of these outbursts came while Tymoshenko’s attorneys were present. Indeed, taking a cue from their client, Tymoshenko’s attorneys developed an unhealthy habit of moving to recuse the judge every time he denied one of their motions. That particular behavior in the United States would likely end up with the attorneys being referred to their Bar for discipline.

Proving that Skadden Arps was indeed independent, the report identifies a handful of shortcomings by a judge and prosecutors clearly tired of dealing with Tymoshenko’s insistence on turning her trial into a giant publicity stunt.

The only failing of any significant merit is the detention that the court imposed on her – at first to allay the not-unreasonable fear that she would make the proceedings even more a farce – that continued even after he trial was concluded, before a sentence was even handed down. However, that error has no obvious effect on the legitimacy of Tymoshenko’s conviction.

The other two shortcomings – not allowing Tymoshenko to call witnesses she waited too late to identify and a brief absence of counsel during the examination of some witnesses – are direct and proximate results of what appears to be legal malpractice by her then-counsel, and Tymoshenko’s own decision to play musical attorney and refusal to stand to address the court when petitioning for new counsel, as Ukrainian law requires.

It is especially here that the report errs. In the United States, while one might appeal a conviction because of ineffective assistance of counsel, the error by the attorney must be truly beyond the pale for the conviction to be reversed. Requesting additional witnesses after the deadline to do so does not reach that standard.

As far as an absence of counsel, it appears that Tymoshenko hired and fired (and then attempted to re-hire) numerous attorneys in order to stall the case, a tactic the trial court indulged repeatedly but not eternally. In the United States, while it is true that a defendant is entitled to counsel, she is not entitled to endlessly recycle attorneys and refuse to follow courtroom procedure in an effort to endlessly delay the trial. Any right may be waived, and many courts in this country would find that Tymoshenko waived her right to counsel by using it as a bludgeon to indefinitely delay her trial.

Two details largely lost on the press coverage of the report – presumably because everyone raced ahead to the parts that interested them – are the structure and tone of the report. Skadden Arps is not best-known as a firm of trial attorneys, but they fairly clearly applied a law school-type IRAC approach to the issues before them in a format obviously modeled on a reviewing American appellate court.

This is important because of what the report buries: the strong suggestion that Tymoshenko would be in prison even if the trial judge had simply ignored her grandstanding contempt and performed flawlessly. As the report notes, again and again but in passing, the due process violations Skadden Arps identified would not be sufficient to retry the case in most American jurisdictions.

Finally, it is worth noting that the report uses U.S. federal law as the largest part of its measuring stick for due process. The choice of federal law as a stand-in for “U.S. Law” is understandable – federal law is essentially the final arbiter of due process in our system and even were it not so, a state-by-state review would make this report thousands of pages long – but because Supreme Court precedent is relatively scarce, it tends to leave a reader with a much different view of the law than how it is practiced. It would seem that this is why Skadden Arps sees due process violations in not allowing Tymoshenko an indefinite time to expand her witness list and change attorneys; in American courtrooms, every day, convictions are handed down over worse and stand on appeal.

The Skadden Arps report does not completely vindicate Ukraine and its handling of Yulia Tymoshenko’s trial, but on the critical questions of selective prosecution, Tymoshenko’s outlandish behavior, and her factual guilt, her arguments lie in tatters.

Matthew Lina contributed to this report.

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