Last Friday defense lawyer Moszkowicz again requested for substitution of the court. His request is supported by an argumentation that could be split-up into two main arguments: first, the failure of the court to react to a request of the defense and second the courts rejection of a perjury inquiry into a witness that made inconsistent statements in which the witness kept persisting even after been confronted with the inconsistency of his own statements.
The first part of the argument, the failure to respond to a request of the defense, was also the reason for the first court in the Wilders trial to get substituted. Amazingly, this time again Mr. Moszkowicz could use a identical argumentation against the court as he had successfully used against the earlier substituted court. Again the court had failed to respond to a defense request for hearing Mr. Hans Jansen and by doing that the court had again deprived the defense of its rights.
But the argumentation was not identical, as the current court had not rejected to hear Mr. Hans Jansen, nor did it rejected to hear the new witness judge Schalken. But the court simply did not honor the defense request because they made it the courts sovereign decision to hear these witnesses. Also took the court the liberty to add an extra (hostile) witness. This in itself is a strange decision, as these witnesses are pre-trial witnesses, they are not part of the trial itself (they are only heard to determine the legality of this trial) and they were on the request of the defense only, the prosecution had no interest in hearing any of these witnesses.
By not honoring the defense request and making it the courts sovereign decision in hearing the witnesses it has deprived the defense of certain rights. Most importantly the defense lost the right to take the lead in the questioning of the witnesses. But key in this argument seems to be, that the court failed to respond at all on the request and thus never brought any arguments for their decision.
The second half of the argument, that gained it straight from the first half, was that the witness the court introduced was lying and that the court has rejected a perjury inquiry without sufficient argumentation. Salient detail is that the witness in question, Bertus Hendrix, has during his testimony on his own initiative declared to be a friend of Amsterdam judge Schalken (this is an Amsterdam court). He also declared that he would never tell things about Schalken that could reflect badly on him, if he was not bound by the oath. He made those statements after he had already told the court that the self-incriminating testimony of Schalken earlier that week was just not true and a result of the long questioning. But the reason for the perjury inquiry was that Hendriks had declared repeatedly in court that he had invited court witness Hans Jansen for a dinner with the Amsterdam judges for speaking about Islam in general and certainly not for talking about the Wilders trial. But that lead to inconsistencies with earlier press remarks by him, in which he had said that he had invited Hans Jansen because he was a witness in the Wilders trial. But during the questioning by Mr. Moszkowicz he kept persisting that both statements were truthful.
After Moszkowicz presented his case in substitution court, the president of the court, Marcel van Oosten, responded with these words (video):
“Dear president, I first like to note that we, all three of us, feel used and we don’t rest and that’s why we here. I also notice a considerable inequality of arms at this moment, I have to sit down because I have a fixed microphone although the defense lawyer can do his plea standing, as it should be, so I request the court if I can stay seated as otherwise I don’t have a microphone.”
The body langue of the court president didn’t make his statements any better and he continues his plea with praising Moszkowicz because he often needs weeks of preparation for a plea and that he had prepared this elaborated plea in no time at all. He also told the court that in his “humble opinion” Moszkowicz took a too wide a scope of argumentation for requesting the rejection of his court, but nevertheless requested elaborate preparation time for giving a response. The substitition court rejected that request.
The substitution court will rule this Monday. But it seems quite difficult for the substitution court to still rule that Marcel van Oosten his court is still an impartial court for Mr. Wilders after van Oosten has claimed his court has hurt feelings because they “feel used” by the defense.