Going Global

After 10 consecutive murder trials, Wichita criminal defense lawyer Kurt Kerns was feeling burned out. 

He’d spent the ’90s and early 2000s fighting on behalf of some of the highest profile defendants in Kansas, like Stan Naramore—a doctor eventually acquitted of premeditated first-degree and attempted murder in the deaths of two patients—and a business owner charged with attempted murder for shooting an employee who attacked him with a knife.

“I had tried everything there was to try on American soil,” Kerns says. “I was looking for something new.”

That’s when his friend Chris Meek, “an old hippie lawyer out of Baxter Springs,” suggested the two of them look into defending war criminals being prosecuted at the then-fledgling International Criminal Court in The Hague, Netherlands. Meek and his wife were world travelers, and Kerns had studied international law in London while earning his J.D. from Topeka’s Washburn University.

“We decided, ‘Hey, let’s fly to Amsterdam and see what it takes to get involved,’” says Kerns. “We took the train to The Hague and literally just started watching trials.”

In addition to the International Criminal Court, the duo visited the International Criminal Tribunal for the former Yugoslavia. At each trial, Kerns would knock on the bulletproof glass separating the gallery to introduce himself and ask the lawyers to dinner. “They’d look at me a little funny,” he says, “and then they’d say, ‘Sure.’”

Since the attorneys were mostly from Serbia, Croatia and Bosnia, they had limited experience in common law. “When it came to cross-examination, they didn’t really know how to ask a leading question,” Kerns says. “In their systems of justice, the judges did a lot of the questioning.”

Kerns let them know he thought he could lend that experience to the international defense teams. And when no offer came after the first two-week trip in 2005, he planned another. “By the seventh trip, everybody around here is laughing and going, ‘Well, what are you going to do? Corner the market on Wichita, Kansas, war crimes?’”

It was during that seventh trip that attorney Zelimir Par asked Kerns if he planned to keep coming until he got hired. He then offered Kerns an opening on the team defending Croatian commander Vinko Martinović, who had been sentenced to 18 years for murder, plunder and inhumane acts against Bosnian Muslims.

Though Kerns wrote the response brief and delivered oral arguments for the defense, the appeal was unsuccessful. But he remembers the experience fondly, because his parents, both teachers in Kansas, came to watch. His dad thought the black robe and white neckpiece Kerns wore meant he had become a judge. It was his dad, in fact, who first suggested law school to Kerns when he called home, devastated, after his University of Kansas football coach told him he’d never go pro. “He said, ‘In the law, you’re always going to be fighting for somebody, and there’s going to be a clear winner and a clear loser,’” remembers Kerns.

A few years later, in 2010, an unlikely international case fell into Kerns’ lap: The first-ever genocide charge on American soil had been filed against Lazare Kobagaya, an 82-year-old Burundian immigrant living in Topeka. “He was actually charged out of Wichita,” Kerns says, “and guess who was the only lawyer with any experience in that kind of case?”

Kobagaya was charged with immigration fraud due to not disclosing his alleged involvement in the Rwandan genocide; the government would have to prove his involvement in order to deport him, following 10 years of federal imprisonment. What followed was two years of Kerns and his team, co-led by Melanie Morgan, traveling to eight countries across Africa to find witnesses who could attest to Kobagaya’s innocence.

“Every witness we were finding would literally look at us confused and go, ‘Kobagaya, the old man? What are you talking about? He was never involved in anything,’” says Kerns.

At that time, in Rwanda, the only way to get out of jail was to accuse someone else of a crime. Kerns and the defense team found a witness at a refugee camp in the Congo—a former prisoner of a Rwandan jail, still with the torture scars on his back—who described for them the prosecutor’s visit that initiated the conspiracy to falsely accuse Kobagaya.

In April 2011, Kobagaya’s five-week federal court trial began, and 50 witnesses were brought from Africa to Wichita. While the jury deadlocked on whether Kobagaya took part in genocide, it found him guilty on one count of lying to officials about being in Rwanda, and not Burundi, in 1994. Months after the verdict, however, the charges were dismissed when it was discovered that the prosecution had failed to disclose a witness favorable to the defense: The woman who had processed Kobagaya’s visa application had said it wouldn’t have changed her decision that he wrote that he left Rwanda in ’94 instead of ’93.

“Eventually we were able to get the charges dismissed altogether,” Kerns says. “Lazare was able to go on with his life.”

The victory solidified Kerns’ place in the international legal community. He soon returned to The Hague to serve on the defense team for the genocide case against Ratko Mladić, “The Butcher of Bosnia.” At that time, he was one of only 26 attorneys from the U.S. authorized to appear in the International Criminal Court.

Defending clients in a system with three-judge panels instead of juries—and completely different rules of evidence, like admissible hearsay—proved to be the challenge Kerns had been looking for when he took that first flight to Amsterdam.

“The judges basically let everything in,” he says. “We loved it, because if you could come up with a case from anywhere in the world that supported your position, you could argue it. For example, a government wanted to take DNA from a client. We found this obscure case, out of this obscure country, that said that that violated the right to remain silent. The court found our client didn’t have to provide DNA. So, if you could find any kind of authority anywhere, you could at least argue it. You could get really inventive.”

One downside for Kerns is the political nature of the tribunals, which he says are designed for conviction. For example, in a case before the International Residual Mechanism for Criminal Tribunals in Arusha, Tanzania, his client was acquitted. But the appellate court reversed that decision, with a sentence of time-served. “I think, politically,  it was a little bit too much for them to have an acquittal on their record,” he says.

In a case involving Yugoslavia, Kerns’ client was accused of setting a house on fire and charged with killing the people that had died in the blaze. “My colleague went out and actually found three of those dead people, living in Austria,” he says. “We brought them into court and said, ‘Hey, clearly you’re not dead.’ We thought that would be a huge reasonable doubt.”

His client was still convicted for the deaths of the people they couldn’t find. “That was a little bit frustrating, that you can literally bring in ‘dead’ people to testify, and it still makes no impact on the ultimate decision,” Kerns says.

While Kerns sees the International Criminal Court as a young system that is “striving” toward justice, he says injustice is much more prevalent than in the United States’ jury system. “Once you see other systems of justice in action, you gain a greater appreciation for the rights that we have here. I heard a lawyer once say, ‘Our system of justice is the worst in the world—except for all the others.’ It may have its faults, but the ability to have 12 people from your community stand in the gap between an accusation and a judgment is the best system of justice I think mankind can conceive of.”

Kerns has continued to try murder cases in Kansas as he builds the international side of his practice, boasting a record of 10 acquittals in the 14 trials he’s taken to verdict in the state. What he finds compelling about criminal defense hasn’t changed since college, when his dad gave him Gunning for Justice, the book that made him want to be a lawyer. In it, his hero Gerry Spence describes the stakes of it all, knowing that he has someone’s life in his hands—and that, if he does well, that person gets to go on living.

“There’s no such thing as a presumption of innocence,” Kerns says. “That’s just an intellectual exercise where everybody agrees to pretend. The reality is, you start with a false accusation where the jury does not like you. The normal human condition is, ‘Well, I’ve never been charged with a murder and I’ve never been charged with a drug conspiracy.’ To take those 12 people from a place of uncomfortability and judgment to a place of love and caring for your client is the ultimate blessing.”