Tribunal Criminal Tribunal for the Former Yugoslavia

Page 725

1 Tuesday, 14th July, 1998

2 (Open session)

3 (The accused entered court)

4 --- Upon commencing at 9.03 a.m.

5 JUDGE MUMBA: Good morning. Will the

6 registrar please call the case.

7 THE REGISTRAR: Good morning, Your Honours.

8 Case number IT-95-17/1-T, Prosecutor versus Anto

9 Furundzija.

10 JUDGE MUMBA: Can the accused hear me in a

11 language you understand?

12 THE ACCUSED: Yes, Your Honour.

13 JUDGE MUMBA: This morning we are dealing

14 with a motion raised by the Defence as a result of

15 disclosure of documents by the Prosecution after the

16 close of the proceedings.

17 Now, I would like to state to both parties

18 that the Trial Chamber has considered the motion and

19 the arguments by the Defence and also considered the

20 Prosecution response.

21 At this stage, we do not find it necessary

22 for further addresses except perhaps to give Defence

23 counsel an opportunity for a very brief reply.

24 Mr. Misetic?

25 MR. MISETIC: May I have just one moment to

Page 726

1 consult with counsel then? Thank you.

2 Thank you, Your Honour. Our reply, we have

3 read the Prosecutor's response brief. We obviously

4 dispute almost the entire brief in its entirety, but in

5 particular we make a strong objection to continuous

6 factual statements in the response brief, particularly

7 statements with respect to Witness A's mental

8 condition, whether -- some of those include whether

9 she -- let me find it in particular. They include

10 statements like Witness A is not a schizophrenic, she

11 is not delusional, she has no hallucinations. These

12 are all factual statements. There is no affidavit

13 attached to the brief, there is no reference in the

14 record to any evidence to that effect, and so we would

15 object to factual allegations or factual statements

16 such as those in the brief that have no support through

17 witness testimony at trial or any affidavit attached to

18 the document.

19 Our second and perhaps more important

20 objection to the brief is that it fails to identify a

21 single Prosecutor by name in the brief. We assume that

22 the reference to a senior trial attorney and the use of

23 a feminine pronoun to describe that attorney was a

24 reference to Ms. Sellers. There is no affidavit from

25 Ms. Sellers with respect to what her position was, why

Page 727

1 she apparently made the decision she chose to make, the

2 document is not signed by Ms. Sellers, and I notice in

3 court today Ms. Sellers is not present to answer any of

4 those questions. We object to her failure to appear in

5 court today on such a serious matter. That is our

6 reply in short, Your Honours. Thank you.

7 JUDGE MUMBA: Thank you very much. I notice

8 that the Prosecution is different today. Who is

9 appearing for the Prosecution, and may we also have an

10 explanation as to why Ms. Sellers is not here.

11 MS. HOLLIS: Yes, Your Honour, Brenda Hollis

12 and Michael Blaxill for the Prosecution today.

13 Ms. Sellers is not here today. There was no

14 instruction that a particular attorney be here today to

15 represent the Prosecution, and I am here to present any

16 oral argument or explanation that the Court may

17 request.

18 JUDGE MAY: Well, Ms. Hollis, we see you are

19 here and Mr. Blaxill is here. However, there are

20 clearly serious matters to deal with here, and one

21 would have expected somebody responsible to be here and

22 present before the Chamber to answer to these matters.

23 MS. HOLLIS: Your Honour, if I could note on

24 that as well that Ms. Sellers had scheduled a leave

25 time after the conclusion of the case and had actually

Page 728

1 undertaken that leave prior to the filing of the

2 Defence motion.

3 JUDGE MUMBA: Thank you. However, in future,

4 the Trial Chamber expects that when serious matters of

5 this nature, particularly regarding procedural issues

6 in a criminal trial, particular trial attorneys should

7 attend.

8 You may be seated, Ms. Hollis.

9 The Trial Chamber has observed that there was

10 a serious misdirection on the part of the Prosecution

11 in this case, in particular that Rule 66(C) does afford

12 the Prosecution the opportunity to seek leave and

13 advice of the Trial Chamber in camera in any matter

14 where they have evidence or a document or anything that

15 is relevant to the Prosecution of the case before the

16 Trial Chamber where they are doubtful as to whether or

17 not it is open to disclosure and that the Trial Chamber

18 has got the authority to take a decision after

19 inspecting the said document or examining the evidence

20 which is relevant.

21 In this trial, it is obvious that Witness A

22 did receive either counselling or treatment as a result

23 of the allegations which are the subject matter of the

24 indictment against the accused before the Trial

25 Chamber. So there was no question of the treatment or

Page 729

1 counselling not being relevant. It is clearly

2 relevant.

3 So the Trial Chamber feels that the

4 Prosecution did not fulfil their mandate on disclosure,

5 they failed in this regard, and the Trial Chamber is of

6 the view that that did prejudice the right of the

7 accused to prepare fully his defence, in particular in

8 matters relating to a witness whose evidence more or

9 less deals with the allegations, the subject matter of

10 the indictment.

11 Although the Defence in their motion are

12 appealing to the Trial Chamber to strike out the

13 evidence of Witness A or to order a new trial, on the

14 second point, this Trial Chamber does not have

15 jurisdiction to order a new trial. That is the premise

16 of the Appeals Chamber.

17 On the first point, on the first request that

18 the evidence of Witness A be struck off, the Trial

19 Chamber is of the view that this is a procedural error

20 specifically in the hands of the Prosecution. It has

21 nothing to do with an error committed by a witness.

22 Therefore, the witness, in the view of this Trial

23 Chamber, cannot be made to suffer as a consequence.

24 The Trial Chamber is of the view that the

25 best procedure under the circumstances and in

Page 730

1 particular considering the indictment in this case is

2 to reopen the proceedings, allow Witness A to come

3 forward for further cross-examination by the Defence,

4 strictly limited to the documents in issue, the

5 statement recorded by the Prosecution in 1995, for that

6 matter, the Certificate attached, to allow the Defence

7 further to call relevant evidence restricted to the

8 issues regarding psychological or medical treatment

9 received by Witness A as disclosed in these two

10 documents. If they wish to recall Dr. Loftus, they are

11 free to do so. If they wish to call any other

12 specialist medical doctor, for instance a psychologist

13 in this case, to deal with the matters raised in these

14 two documents, they are free to do so.

15 However, I must point out that the Trial

16 Chamber is specifically limiting this reopening of

17 these proceedings to the issues raised in these two

18 documents. It is not an attempt to have a new trial,

19 it is not an attempt to allow any party, either the

20 Prosecution or the Defence, to call evidence which was

21 not called at the time the trial proceedings were still

22 proceeding.

23 That being the view of the Trial Chamber, I

24 would like to ask the parties if they have any

25 objection or any further suggestions.

Page 731

1 MR. MISETIC: Your Honours, perhaps I should

2 have discussed that in my reply because it was in their

3 response brief.

4 I cannot state, I guess, strongly enough how

5 strenuously we object to the reopening of the

6 proceedings for the simple reason that this was not a

7 mistake made at trial, this was a mistake made well

8 before the trial ever began. This statement was in

9 existence since July of 1995. Mr. Furundzija came to

10 the Tribunal, as you well know, in December of 1997,

11 and the Rule says, Rule 68, "as soon as practicable."

12 This is not simply, if you look at our

13 motion, a matter of cross-examination of Witness A.

14 The Defence made certain decisions which is what the

15 whole Pre-Trial discovery process is for, to evaluate

16 the Prosecution's evidence. That is why there is a

17 sixty day limit in Rule 66(A) to provide the Defence

18 with 60 days to prepare for trial, review the

19 statements that are produced pursuant to Rule 66, and

20 anything pursuant to 68, and then make your decisions

21 as to, for example, Dr. Mujezinovic. Had we had this

22 statement, his cross-examination can go into further

23 detail. My questioning of him, let's say, what he

24 knew, may be evidence that he could have given forward

25 that would then have been relevant to any expert that

Page 732

1 we call is now out the window.

2 In effect, it would be like trying to unring

3 a bell. The bell has been rung, we made decisions at

4 trial, we've made opening and closing statements, and

5 in effect, to make a reference to poker, we put our

6 cards on the table and now we're trying to go back and

7 piecemeal as to how to reconstruct this.

8 As you well know, a trial is not a piecemeal

9 effort, it is one big picture --

10 JUDGE MUMBA: Mr. Misetic, the Trial Chamber

11 has taken all those points into consideration.

12 MR. MISETIC: You asked if we had an

13 objection. That is our objection. I don't know that

14 we can go back now and piecemeal try to reconstruct a

15 case out of this. Secondly, the relevance of the

16 statement is not just the statement itself, it is any

17 evidence that we could have then, through

18 investigation, have uncovered as a result of being made

19 aware that she had a diagnosis as suffering from post

20 traumatic stress disorder.

21 JUDGE MUMBA: Mr. Misetic, what would you

22 suggest, because the Trial Chamber has decided there

23 will be a reopening of the case. So if you wish to

24 recall, to have any of the Prosecution witnesses

25 recalled, you should say so.

Page 733

1 MR. MISETIC: We haven't had time to discuss

2 what we wanted to do with that because we didn't

3 foresee that as a -- I mean, that was going to be part

4 of an argument today as to -- we didn't foresee that as

5 a fair or a possible solution to this because, as I

6 stated, a reopening -- I hate to repeat myself, but a

7 reopening puts us in a terribly awkward position now of

8 doing things in reverse, in effect.

9 JUDGE MUMBA: All right. In that case then,

10 you will be given time to reconsider the decision of

11 the Chamber. It will be delivered in writing, and then

12 you will be free to make any applications by motion --

13 MR. MISETIC: May I make an oral application

14 that in the meantime, to reconsider the ruling, since

15 we didn't file a reply brief, didn't have an

16 opportunity to file a reply, that would have been a

17 significant part of a reply brief that we would file.

18 I would ask the Court orally to reconsider the motion

19 in lieu of what our stated position is and the problems

20 that we are going to have in a reopening of the case.

21 I stand here before you today unable to make

22 a judgment as to this because I have to now look

23 through the entire trial testimony, see how we can

24 reconstruct this, but even at this point then, a

25 reopening to us has created a sequence that is clearly

Page 734

1 out of joint and we have to see now what the effects

2 are on the accused and his rights because we're

3 conducting a cross of a Prosecution witness,

4 potentially a reopening of the Defence's case in

5 chief. Some of the witnesses, particularly

6 Dr. Mujezinovic, may be relevant to us since he was a

7 physician who examined her, he's the only physician

8 whose name we have. We don't have the name of the

9 witness who gave this statement. That has also been

10 precluded from the Defence.

11 JUDGE MUMBA: If I may ask the Prosecution --

12 MR. MISETIC: I have one other comment that

13 was given in a footnote that is particularly

14 objectionable.

15 JUDGE MUMBA: Before you conclude the

16 psychologist known isn't it, from the submission by the

17 Prosecutor . The one whose statement was taken by the

18 Prosecutor's Office.

19 MS. HOLLIS: Is known to us; is that the

20 question?


22 MS. HOLLIS: Yes.

23 JUDGE MUMBA: So the name and address can be

24 given to the Defence counsel?

25 MS. HOLLIS: We have not talked to the

Page 735

1 psychologist as to whether she would agree to that, so

2 that was the reason that that was taken out at that

3 time. It was felt that it was the substance of the

4 information that was being disclosed at that time.

5 MR. MISETIC: Again, Your Honours, if I may

6 reiterate, it is not simply this witness that was, from

7 our perspective, the violation of Rule 68. It is the

8 Pre-Trial failure to disclose the issue that is the

9 violation of Rule 68. It is the Pre-Trial failure to

10 disclose the diagnosis, it is the Pre-Trial failure to

11 disclose that she was having problems with memory. The

12 fact of the matter is, at trial, we, if I may say so,

13 basically had Dr. Mujezinovic not voluntarily offered

14 that, we had no idea that Dr. Mujezinovic was a

15 treating physician. We would have been entirely

16 precluded from that entire area of questioning.

17 Again, I draw the reference to unringing the

18 bell. We can't tell you what we would have done had we

19 known 60 days prior at least, but I say that Rule 68

20 imposes an even stricter requirement, what other

21 avenues of discovery we would have pursued, what maybe

22 would be different from my opening statement, my

23 closing argument. It's not just a question of a

24 particular witness, it's a question of trial strategy.

25 It's a question of decisions made by counsel as a

Page 736

1 result of the evidence disclosed by the Prosecution.

2 As you will recall in our last Status Conference,

3 Ms. Sellers made on the record a statement that the

4 Prosecution has fulfilled its obligations under the

5 Rules of Procedure and Evidence.

6 We were entitled then to say, "That is the

7 entire Prosecution case, and we can then, as counsel to

8 the accused, make decisions regarding trial strategy.

9 So those decisions permeate the entire case,

10 and again, I would ask the Trial Chamber to orally

11 reconsider, if there is an alternative -- I mean, our

12 belief is, at least under the common law, that striking

13 the testimony is proper. It is not a punishment of the

14 witness, it is a punishment of the Prosecution.

15 The other point I would like to make is this

16 is not the first time this is up. This is the fifth or

17 sixth time I have been before you complaining about a

18 misconduct on the part of the Prosecution. In my

19 statement, in my argument, I was going to say: You, to

20 your credit, have bent over backwards in this case to

21 make sure that Mr. Furundzija gets a fair trial with

22 respect to the issues previously presented, and yet to

23 provide the Prosecution an opportunity to put on a case

24 as pled in the indictment. We had the complaint filed

25 by the Trial Chamber, then during trial, they tried to

Page 737

1 deviate from the indictment and we needed relief from

2 the Trial Chamber to protect us from that. Now post

3 trial we have even more problems.

4 My position is, if this was the first time

5 that this had occurred, perhaps the Prosecution should

6 be given the benefit of the doubt. But on the fifth or

7 sixth time, how many times must Mr. Furundzija come

8 before you and say, "I have yet another example of

9 misconduct on the part of the Prosecution." And as we

10 go forward, rather than being smaller violations,

11 they're greater violations.

12 With all due respect to Witness A, her

13 problem would not be with the Trial Chamber or with

14 Defence counsel, her problem would be with the

15 Prosecutors in this case and how they conducted

16 themselves, and it's not -- shouldn't be a burden on

17 Mr. Furundzija now to have to not have a trial as any

18 other Defendant before the Tribunal would have a

19 trial. Sixty day disclosure, time to prepare, here are

20 the witnesses, put on your opening statement,

21 cross-examine the Prosecution's witness, put on your

22 case in chief, make a closing argument, and wait for

23 the Trial Chamber to make a decision.

24 Now because of their misconduct, he has to

25 have a trial where the issues directly relevant to the

Page 738

1 case are now brought, in effect, post-trial, even

2 though the Trial Chamber is opening up the proceedings

3 again, disjointed, and in a way that I don't think --

4 I'm younger than Mr. Davidson but I would suspect that

5 Mr. Davidson has never had to go through something like

6 this in his 35 years and I certainly haven't had to

7 experience a trial where we go out of order.

8 JUDGE MAY: Well, I have 35 years. It's not

9 uncommon in the United Kingdom if evidence emerges at

10 the last minute, and after speeches, for the matter to

11 be reopened. That is so. It seems to me that that is

12 not necessarily an injustice or an unfairness to do

13 that.

14 While I am, as it were, speaking, perhaps you

15 can help me with this: If you have the opportunity to

16 cross-examine Witness A about the statement, if you

17 have the opportunity to call any evidence about the

18 matter or to have another witness recalled, if you

19 wanted that other doctor recalled for the Prosecution,

20 does that not cure any possible injustice or

21 unfairness? I'm trying to understand the rest of the

22 argument about your strategy. How do you foresee, how

23 do you say that you're put at a disadvantage if the

24 matter is reopened in that way?

25 MR. MISETIC: Because, Your Honours, first,

Page 739

1 to get to what I was saying earlier, we're not arguing

2 alone that it's the statement or this particular

3 witness that should have been disclosed, it's the

4 information Pre-Trial i.e., this is a significant area

5 that could have been and should have been developed by

6 the Defence. That would have included witnesses that I

7 can certainly say at this point in time, standing

8 before you this morning, I don't even know their

9 identities. So I can't say that calling

10 Dr. Mujezinovic and calling Witness A back would cure

11 the problem because it wouldn't cure the problem

12 because a Rule 68 disclosure is an entire area. That's

13 what I'm saying. The only reason we knew that she had

14 psychiatric or psychological disorders, and I'm not

15 sure that the distinction is that relevant at the

16 moment, is because Dr. Mujezinovic testified as such.

17 Now, the Prosecution states that in her 1995

18 statement, she stated she was suffering. She stated

19 that she had physical problems, she suffered physical

20 problems, she had rashes, et cetera, but there was no

21 statement that "I have had psychological or psychiatric

22 disorders," and indeed at the time she gave the

23 statement apparently she was still going to Medica to

24 receive treatment, not counselling as the Prosecution

25 put it in their brief, it is treatment that she

Page 740

1 received.

2 So, no, that wasn't disclosed to us. It

3 should have been disclosed to us. We don't feel that

4 it is a remedy to call one witness back or two

5 witnesses back.

6 On the second problem, which is, we've

7 already put on a case before you. I can't say at this

8 moment that maybe we would have made some other

9 decisions that we wouldn't have called a particular

10 witness or we wouldn't have pursued a specific area of

11 questioning or we would have pursued a specific area of

12 questioning with a particular witness.

13 JUDGE MUMBA: Mr. Misetic, it does not do us

14 any good going over what was not done, what was

15 supposed to be done. We have reached the stage where

16 there is a point, a good valid reason why the Trial

17 Chamber has decided that it will reopen these

18 proceedings, and that is a decision you have to comply

19 with. When the written decision is handed to you, you

20 are free to appeal.

21 MR. MISETIC: I understand that, but it's

22 been our policy to try to go through the Trial Chamber

23 to seek a redress before we go into an Appellate Court.

24 JUDGE MUMBA: After due consideration of what

25 the Defence counsel has submitted, the Trial Chamber is

Page 741

1 still of the view that the trial can be reopened, and

2 that the Trial Chamber cannot order a new trial.

3 However, in the reopening of the trial, the Defence

4 will be free to recall any Prosecution witnesses, to

5 call any Defence witnesses they feel like calling in

6 order to deal with the procedural matter that has

7 occurred in this case.

8 At this juncture, I would like to ask the

9 Prosecution what their views are, if they would need to

10 do anything.

11 MS. HOLLIS: Thank you, Your Honour.

12 Your Honour, in terms of remedial action that

13 would be appropriate in this case, we believe that the

14 remedial action that has been stated by the Trial

15 Chamber is the appropriate remedial action because it

16 allows fundamental rights to the accused to confront

17 evidence but it also enhances the overlying purpose for

18 which the Trial Chamber is here, and that is the

19 truth-seeking process, and does not punish the witness.

20 Our opposition to the decision does not have

21 to do with the remedial action, it has to do with the

22 analysis leading to a decision that the late disclosure

23 was prejudicial to the accused. The reason that we

24 object to that is as follows: We believe that in

25 making this determination, one cannot look to the

Page 742

1 documents disclosed themselves. Instead, those

2 documents have to be put into context. And we believe

3 that the context here includes the following facts:

4 The statement that was taken by the OTP on which the

5 Defence has relied in great part was taken in July of

6 1995, and in that statement, contrary to Defence

7 counsel's assertions, this witness does indicate

8 ongoing problems, effects, from what had happened to

9 her, and she includes such things as the inability to

10 sleep, the fact that she has bad dreams, she doesn't

11 want to sleep. So she's not just talking about

12 physical symptoms, she's talking about the

13 psychological impact of the trauma.

14 The disclosed documents are in July of 1995

15 and in September of 1995. So they are talking about

16 the same time frame. They do not add anything

17 significant to what is in the OTP statement. The fact

18 that they add a label to the symptoms that are in the

19 OTP statement do not give greater validity or concern

20 to those symptoms, and the Defence was fully aware of

21 the OTP statement and her description in that statement

22 of psychological as well as physical effects of what

23 had happened to her.

24 In addition to that, Your Honour, the Defence

25 was aware that this witness had gone to Medica and had

Page 743

1 received counselling, and we suggest it is a

2 distinction with no difference to say it was

3 counselling, not treatment, because counselling, for

4 most purposes, in fact perhaps for all purposes, is

5 treatment. And if we look at the Defence submission

6 itself, we suggest it becomes clear that there was, in

7 fact, no prejudice for this late disclosure. If you

8 look at the discussion by the Defence where they say

9 that the late disclosure --

10 JUDGE MUMBA: Ms. Hollis, may I interrupt

11 you? It is not the intention of this Trial Chamber to

12 ask you to repeat what has been submitted in writing

13 already. I was just asking the Prosecution that, in

14 view of the order by the Trial Chamber to reopen, is

15 there anything the Prosecution wishes to say?

16 MS. HOLLIS: I'm sorry, Your Honour, I

17 thought you also asked if we had any opposition.


19 MS. HOLLIS: Then if we're not allowed to

20 state any further our opposition, we have nothing

21 further to add.

22 JUDGE MUMBA: Thank you. Mr. Misetic, you

23 have understood the order of the Trial Chamber as to

24 the reopening.

25 MR. MISETIC: Yes, we have, Your Honour.

Page 744

1 JUDGE MUMBA: A written decision will be

2 issued, and you are free to take your decisions.

3 MR. MISETIC: Thank you.

4 JUDGE MUMBA: The Trial Chamber has got other

5 ongoing trials, and it is our view that in reopening

6 this trial, we are looking at six weeks' time. We

7 would be happy to schedule the first hearing on the

8 31st August, which is a Monday, and perhaps going to

9 the second day, which is the 1st of September. So

10 those are the dates the Trial Chamber is looking at,

11 and the Trial Chamber believes that both parties have

12 sufficient time to prepare their cases soon after the

13 written decision of the Trial Chamber has been issued.

14 MR. MISETIC: Your Honour, may I ask for the

15 following remedy also in the order?


17 MR. MISETIC: That the Prosecution be

18 required to disclose any additional information with

19 respect to psychological or psychiatric care or

20 treatment? The brief they filed is very --

21 JUDGE MUMBA: It only answers the Defence

22 motion.

23 MR. MISETIC: It uses terms like there is no

24 evidence that she underwent psychiatric treatment at

25 Medica. It never comes out and says there is no

Page 745

1 evidence that she underwent psychiatric treatment or

2 had any disorders, period. What I am concerned with is

3 I don't feel like coming back in the middle of

4 September when potentially more evidence is disclosed

5 even after this, so if we could, to use the phrase, an

6 ounce of prevention -- whatever. You know the

7 statement. I would prefer to know that in advance if

8 the Trial Chamber agrees with the Defence that in light

9 of your ruling today, that it is a relevant area and if

10 they do have more in their files with respect to this

11 area, perhaps it might expedite our investigative

12 efforts. Thank you.

13 JUDGE MUMBA: Ms. Hollis?

14 MS. HOLLIS: Yes, Your Honour.

15 JUDGE MUMBA: You have understood what

16 Mr. Misetic is talking about.

17 MS. HOLLIS: The reference to psychiatric

18 care by Medica was a direct response to the Defence

19 pleading, it was not an attempt to, if you will, use

20 fine distinctions to hide any sort of evidence.

21 JUDGE MUMBA: May I ask this question then:

22 Is there any other evidence that the Prosecution have

23 regarding treatment, psychological or medical or

24 counselling, on Witness A as a result of the trauma she

25 underwent as a result of the allegations, the subject

Page 746

1 matter of the indictment against the accused?

2 MS. HOLLIS: May I consult for a moment, Your

3 Honour?


5 Yes, Ms. Hollis?

6 MS. HOLLIS: Yes, Your Honour. After

7 consultation with co-counsel, the Prosecutor at this

8 time is not aware of additional evidence. Because of

9 the sensitivity of this issue, we will certainly

10 undertake yet another search to ensure that, but at

11 this time, we are not aware of additional evidence.

12 JUDGE MUMBA: Thank you. I think we have

13 come to the end of our proceedings in this matter. We

14 shall adjourn.

15 --- Whereupon proceedings adjourned

16 sine die at 9.37 a.m.