Myanmar Suspects Convicted of Thailand Backpacker Murders in Flawed Trial

A Thai court on Samui Island today, Dec. 24, found two Myanmar workers guilty of killing two British backpackers on a tropical island in southern Thailand, sentencing them to death in a case that to outsiders looks fatally flawed and designed to protect unnamed powerful figures who actually killed the two and raped the woman.

The verdict has drawn widespread criticism from human rights groups given the long list of flaws. Although the two defendants, Htun Zaw Ln and Wai Phyo, confessed to killing David Miller and Hannah Witheridge in September 2014, there is widespread suspicion that the two were made scapegoats for unnamed powerful individuals on the island of Koh Tao, where the murders took place.

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Miller, Etheridge

After being given access to human rights organizations, the two immediately recanted their confessions and described in graphic detail how the admissions were beaten out of them and that they had been scalded, tortured and threatened with electrocution.

“In a trial where torture allegations by the two accused were left uninvestigated and DNA evidence was called into question by Thailand’s most prominent forensic pathologist, both the verdict and these death sentences are profoundly disturbing, and need to be reviewed in a transparent and fair appeal process,” said Phil Robertson, deputy director of the Asia Division of Human Rights Watch. “While the Thai police and judiciary may feel that justice has been done, the wider international community is far from convinced.”

Fumbling Spotlights Incompetent Force

The fumbling involved in the case represents yet another black mark on a police force that in recent weeks has been found to be almost unimaginably corrupt. The investigative chief probing a ring of police trafficking Rohingya refugees fled for his life earlier this month, charging from safety in Australia that powerful individuals within the force were impeding his investigation.

The trafficking trial involves 91 defendants, including high-level government officials accused of trafficking more than 100 ethnic Rohingya Muslims and Bangladeshis through illicit camps in Thailand, according to the NGO Fortify Rights. “Members of Thailand’s state security forces as well as suspected members of a transnational criminal syndicate have threatened or intimidated witnesses, investigators, and other individuals involved in the case.”

At least two witnesses have gone into hiding out of fear for their lives, and others said they are considering doing so over security concerns. Only 12 of the 500 witnesses scheduled to testify are receiving formal protection.

Thai Police Becoming a Laughing Stock

“With their shoddy handling of cases like the Koh Tao murder case and the Bangkok bombing, the Thai police are rapidly becoming laughingstocks in international justice circles. At this rate, is it a wonder that tourists from around the world are asking a new question - 'is it really safe to go to Thailand?' asked a representative for a western NGO. “When are the powers that be in Bangkok going to figure out that jailing scapegoats while real culprits go free is not a persuasive answer to that question?"

In the Koh Tao case, Pornthip Rojanasunand, chief of the Central Institute of Forensic Science, told the court her agency’s inspection of the weapon used to kill the backpackers actually contained traces of DNA from unknown individuals, and that the agency didn’t find any from the two accused. There were neither fingerprints nor other evidence that tied the two to the murders. Nonetheless, the prosecution came up with DNA samples that did match.

“Police investigators are solely relying on their claim that the DNA in the sperm found on Hanna Witheridge is that of the two Burmese defendants but they have not produced any independent corroborative evidence linking them to the murder,” said the NGO Thai Justice. “Thai police had no proper and adequate chain of custody documents for the court; no photos of any of the DNA analysis processes, no case notes, no written description of testing processes. Originally they just had charts of DNA profiles. No DNA information was presented at all on the cigarette butts (found near the bodies), just a piece of paper saying they matched. The defense further highlighted the fact that the DNA sperm data was written, crossed out, and revised and dates and times were clearly wrong.”

Police Under Pressure to find Scapegoats

Htun Zaw Lin and Wai Phyo were collected up by Thailand’s notoriously corrupt and inept police two weeks after the murders were committed. Critics have said the suspects were arrested because the police, under enormous international pressure to solve a heinous crime, had to find killers and picked out the two youths, who had migrated from Rakhine state in Myanmar to work in the tourist trade.

The police investigation was a mess, with media and onlookers allowed to trample the murder scene and with a wide range of suspects targeted before the police settled on Htun Zaw Lin and Wye Pho. While the two might actually have committed the crime, it has long been a Thai police practice to collect up the usual luckless suspects, usually foreigners, and charge one or two, especially if a politically powerful figure or his relatives had actually committed the crime instead. Police initiated blanket DNA testing of the migrant community living on Koh Tao, leading to well-justified fears that migrants would be arrested.

The procedural problems connected to police incompetence are just too many to count, said an observer with a Thailand-based NGO.

“First they let dozens of people traipse through the crime scene, and then sent in a bunch of incompetents to collect DNA evidence. Then they shut out Pornthip, the foremost expert on DNA evidence in the country, from involvement in analyzing the results. And when the two defendants' confessions fell apart because they said they were tortured, the police and the prosecutors didn't show any interest in investigating those claims.”

‘Farce from Day 1’

He termed the investigation “a farce from the day they arrested these two Burmese scapegoats and Prime Minister Prayuth immediately shot his mouth off by saying that he was sure the police had the right men and that they had done a superb job."

Zaw Lin and Wai Phyo have been held at a prison on Samui island since their arrests. Additionally Wai Phyo, 22, was charged with entering the kingdom illegally and the theft of Miller's phone.

Activist Andy Hall, who worked with the defense lawyers, said they plan to appeal the guilty verdict. Defense lawyer, Nakon Chompuchart, said he will appeal at the Supreme Court.

"What Burmese migrants see from this trial is that any of them can be framed at any time for any crime by the Thai police and judiciary,” said a representative for a migrant support group in Thailand. “In their eyes, the reality is the Thai government and judges see migrants as lesser beings, certainly much less than human, and this means that they can never get a fair trial in Thailand. And looking at what happened in this case, you know what - those migrants are absolutely right. There is no justice for migrants in Thailand."

Nonetheless, Michael Miller, the older brother of David Miller read a statement to behalf of his family in which he said the family believed that the verdict was "correct" and that the family had kept an open mind throughout the trial.

Lin and Wai Phyo are expected to be moved to provincial prisons while their appeal process, expected to take six months to a year, moves forward.

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