Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3772

 1                           Tuesday, 9 December 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 8.53 a.m.

 5             JUDGE VAN DER WYNGAERT:  Good morning to you all.  Welcome back,

 6     Mr. Alarid.

 7             I just wanted to start by saying that Judge Robinson is unable to

 8     sit this week, so Judge David and myself will be sitting under the rules

 9     for the whole of the week.

10             Before we start, I wanted to raise a number of issues for a

11     number of housekeeping matters to start with.  Then I would want to

12     address the number of witnesses to be called.  Then I would want to

13     address the delay in the start of the Milan Lukic case.  And finally, I

14     would want to address the testimony of the accused.

15             First, the housekeeping matters.  On the updated list of Milan

16     Lukic, there is still no clarity regarding the mode of testimony of the

17     witnesses.  For witnesses that Defence wishes to hear pursuant to Rule 92

18     ter, the Trial Chamber expects the Defence to file motions in compliance

19     with that rule.  However, for the witnesses to be heard this week, there

20     has been no such motion, so we will proceed under the normal viva voce

21     way of hearing the witnesses.

22             Another housekeeping matter deals with protective measures.  On

23     the 1st of December, we ordered that the rule is that written

24     applications must be made for protective measures.  We will, however,

25     exceptionally allow all applications for protected witnesses for

Page 3773

 1     witnesses to be heard before the Christmas recess.  This should be done

 2     at the earliest opportunity.  Applications for protective witnesses --

 3     for protective measures for witnesses to be heard after the recess are

 4     also to be made in writing at least two weeks prior to testimony.

 5             There is also the outstanding motion on contact details.  The

 6     Trial Chamber will soon decide on this motion, the motion to obtain the

 7     contact details of certain Prosecution witnesses.  However, we believe

 8     that it needs to be stressed that this shall not impact on the start or

 9     conduct of the Defence case.

10             The second number of points I want to raise relate to the number

11     of witnesses to be called.  On the 4th of December, the Trial Chamber

12     denied Milan Lukic's motion to exclude custodial and statement witnesses

13     from the total amount of witnesses allotted.  The Trial Chamber further

14     confirmed that the total allotment is 45 witnesses to be heard within 60

15     hours of examination-in-chief.  The Milan Lukic Defence case is expected

16     to end no later than 6 March 2009.

17             The Trial Chamber, the majority, that is, also ordered the

18     Defence to file lists of witnesses to be called before the recess and

19     after the recess respectively, each list to be in compliance with Rule 65

20     ter [G].  In particular, we want to draw the attention to Rule 65 ter [G]

21     [F], which required the Defence to provide estimates for the length of

22     the testimony for each witness.  The Milan Lukic Defence has not done so

23     yet in any of its submitted lists.

24             We want to draw the attention to the fact that this Trial Chamber

25     intends to watch not only over the fairness of the proceedings but also

Page 3774

 1     over the expeditiousness of the proceedings in accordance with our duties

 2     under Article 20 of the statute, which means that we expect the Defence

 3     to call witnesses without gaps in the court schedule.

 4             The Trial Chamber is aware of the difficulties in preparation

 5     encountered by the Milan Lukic Defence.  However, we consider that we

 6     have taken measures on several occasions to give due considerations to

 7     these difficulties encountered.

 8             On basis of the requests filed by the Milan Lukic Defence, we

 9     have granted delays in the trial proceedings.  We've made a little

10     calculation, and these delays totaled five full weeks, or in other words,

11     25 court days.  As a comparison, we have only granted nine days of delays

12     to the Prosecution case, also based on Prosecution requests.

13             I now turn to the delay of the start of the Milan Lukic case.  We

14     wish to express our concern over the late start of the Milan Lukic case.

15     As you may remember, we ordered on the 18th of November that the Defence

16     of Milan Lukic be ready to present its case immediately following the

17     start of that of Sredoje Lukic.  Actually, the start of the Sredoje Lukic

18     case, which was originally to be one week earlier, only took place last

19     week, so as a result of this, the Milan Lukic Defence had one week extra.

20     But as we found last week at the close of the Sredoje Lukic case on the

21     2nd of December, there were no witnesses to be brought before us, and

22     Mr. Alarid was absent.

23             We are now on the 9th of December, and we have lost more than

24     with two full days of court last week.  We wish to remind counsel that

25     they are under the obligation to meet high standards of professional

Page 3775

 1     competence and ethics in the performance of their duties.  In short, we

 2     will not accept any further delays unless exceptional circumstances can

 3     be shown by the Defence.

 4             As announced by Judge Robinson on the 2nd of December, the

 5     Chamber will take measures if the Milan Lukic Defence does not comply

 6     with the obligations.  This may entail reductions of the number of

 7     witnesses or the time allotted to the presentation of evidence.

 8             The last point I wish to turn to is Milan Lukic's testimony.  We

 9     have seen, Mr. Alarid, that you have included Milan Lukic on the witness

10     list, and we were wondering whether Mr. Lukic is going to give evidence,

11     and if, so at what moment in time?

12             MR. ALARID:  Good morning, Your Honours.  I've prepared a

13     statement today that I hope will address many of the concerns that you

14     raised initially, including the potential of sanctions being taken

15     against Defence team, be it the reduction of time and the reduction of

16     number of witnesses and so forth.  I hope I will address your concerns

17     and my relationship to those concerns and my perspective.

18             To go straight, though, to Mr. Milan Lukic, he probably most

19     likely will testify.  It is at his great urging that he wants to.  I've

20     been researching kind of the pattern of practical with this Tribunal and

21     how that's come about, and one thing that gives me concern, I know

22     Mr. Vasiljevic's, because that was the transcripts we had available,

23     spent 21 hours total on the stand between cross-examination, direct

24     examination, re-cross, and so forth over several days.  I can only

25     anticipate that Mr. Groome will have a similar desire to cross-examine

Page 3776

 1     Mr. Lukic over a period of time, considering all the counts of the

 2     indictment, all this testimony, and we would need an equal amount of real

 3     preparation with the witness.  We're figuring at least 20 working hours

 4     with the witness before he would testify.  I'm not sure when we're going

 5     to get that.  Of course, the most we can spend at a particular day at the

 6     gaol is four hours, and so we would want the week or two weeks before

 7     that testimony vacated so for purposes of just simple with-the-client

 8     preparation because we have a big file to go through and I can only

 9     anticipate that Mr. Groome will use points from all over the place in

10     order to cross-examine Mr. Lukic.

11             So as for the actual timing, no, it will not be at the beginning

12     of the case similar to Mitar Vasiljevic.  I saw the credit given to that,

13     but I don't believe it's outweighed by the need to adequately prepare the

14     defendant.

15             As you're aware, one of the complicating factors of this case is

16     that we did not -- I did not get a lot of opportunity to spend with Milan

17     Lukic, and all of a sudden we're thrust into trial.  So a lot of the

18     meetings dealt with the witness tomorrow, what they said, did you read

19     the B/C/S statement, what kind of questions do you think are appropriate,

20     and as you saw, that really wasn't as helpful because Mr. Lukic was

21     forced to pass notes over and over again to my case managers in the past,

22     and we had to do this.  So I can't tell you that I have done fact-by-fact

23     defence preparation with my client for purposes of his testimony.  The

24     time limits given by the Court as well as funded by the Registry and the

25     totality of the circumstances simply have not allowed that.

Page 3777

 1             If you would allow me to read my statement, I think there's some

 2     more issues, and I know I'm going to disappoint the Court but I do have

 3     solutions because I will not be giving my opening statement today.  I

 4     also will not be presenting witnesses today under the multiple issues

 5     present in the case.  I'm really actually very sorry the President was

 6     not available this week, and I have no doubt that it was important, but I

 7     hate that this will be read by transcript only as opposed to dealing with

 8     the issues.  But we will be raising multiple issues regarding our ability

 9     to prepare, but under the spectre of the allegations of the Prosecution

10     that's come to light regarding Mr. Vilic and so forth and the

11     investigations that's gone back for quite some time, it changes the tempo

12     of this case.  It changes our ability to present witnesses, and if I

13     might begin at your leave, Your Honour, I would -- like I said I have

14     prepared a statement which I believe addresses every single one of your

15     initial points.

16             JUDGE VAN DER WYNGAERT:  Please go ahead, Mr. Alarid.

17             MR. ALARID:  Assuming he will read this, Your Honour, I entitled

18     it -- this is the Milan Lukic preliminary matters for today, December

19     9th, 2008.

20             Dear Mr. President --

21             THE INTERPRETER:  Please read slowly for the interpreters.

22             JUDGE VAN DER WYNGAERT:  Can you be a bit slower, Mr. Alarid?

23             MR. ALARID:  Yes, Your Honour, of course.  And I probably should

24     listen to this then.

25             It is with great dismay, sadness, and some trepidation that I

Page 3778

 1     inform the Chamber that I will not be giving an opening statement or

 2     presenting evidence this week or the next as anticipated, if not

 3     directed, by the Court.

 4             There comes a point in one's life as much as a career when

 5     something was demanded that was so compromised his or her beliefs and

 6     principles, and to do so without protest and attempt to reconcile would

 7     forever taint everything to follow.

 8             I understand my actions without prior discretion or input from

 9     the Court may have consequences.

10             THE INTERPRETER:  Could the counsel please read slowly.

11             MR. ALARID:  [Previous translation continues] ... stand by our

12     personal and professional convictions.

13             THE INTERPRETER:  Your Honour, this is a written text, and the

14     interpreters have not received it, so the counsel will really have to

15     read it more slowly.  Thank you.

16             MR. ALARID:  I understand my actions without prior direction or

17     input from the Court may have consequences.  We as the Defence counsel

18     for Milan Lukic stand by our personal and professional convictions and

19     accept full responsibility.  All we ask is that you calmly listen to our

20     rationale and keep an open mind as I explain our reasoning, potential

21     avenues, and solutions.

22             Beginning with the most basic principle, Milan Lukic's

23     inalienable right to a fair trial, is beyond the point of at risk.  I

24     believe that under a totality of the circumstances, the system has failed

25     Milan Lukic and his right to a fair trial has and will continue to be

Page 3779

 1     compromised under the current conditions.  We, again, respectfully

 2     request that this Court understand our plight and allow the Milan Lukic

 3     team the necessary time to catch up for purposes of putting on an

 4     efficient, collective, and cohesive and full defence.  The collision of

 5     unrealistic and unreasonable expectations put in place by the Court,

 6     unrealistic and inadequate resources provided by the Registry, and an

 7     absolute assault by the methods and manners by the Prosecution and its

 8     agents has in total culminated in what at least amounts to engineered

 9     ineffective assistance to counsel at best.  At worst, it represents an

10     instance of compromise of the legal process that breaks the most basic

11     tenements of a civilised legal system.

12             As trial counsel, I am duty-bound by the tenants of zealous

13     representation to continue to correct any apparent deficiencies of the

14     process to the best of my ability.  I am overwhelmed and feel defeated.

15     Yet where I stand will not allow me to concede my principles.  I

16     reiterate that I was only lured into this case last March, made lead

17     counsel under difficult and reviewable circumstances in mid-June, and

18     forced to trial in July under what amounts to duress.  I did not believe

19     that the system could or would take us to trial in this manner.  The

20     record is replete with pleas for understanding and assistance to no

21     avail, and I say the system because I believe whether intended or

22     unintended consequences, the separate entities of this respected Tribunal

23     have acted in concert to deprive my client of his right to fair due

24     process and effective preparation for trial of a Defence through a lawyer

25     of his own choosing.

Page 3780

 1             When anyone says Mr. Lukic -- when anyone says Mr. Lukic had

 2     counsel for three years, that does not mean that he had this counsel

 3     preparing for trial and doing requisite due diligence for those three

 4     years.  At best, you can say he had a single attorney working alone with

 5     skeleton resources until October with, co-counsel only have been accepted

 6     as of October 23rd, 2008.

 7             I believe, Your Honours, that I've reiterated enough the details

 8     of the three years as represented in the Registry decisions and what-not,

 9     but I have prepared an addendum that we could go through this, but I

10     think that that would be unnecessary unless directed by the Court.

11             We dealt with putting together a team that had to run right out

12     of the womb, collating the voluminous early disclosures, reviewing,

13     replying and/or generating an inordinate amount of submissions, further

14     absorbing a cacophony of voluminous, haphazard, and tardy OTP disclosures

15     and all the while during the presentation of the Prosecution --

16             THE INTERPRETER:  Slow down, please, for the benefit of the

17     interpreters.  Thank you.

18             MR. ALARID:  And all the while during the presentation of the

19     Prosecution case, all members of the Defence teem are under a cloud of

20     suspicion and accusation that is a Court-sanctioned criminal

21     investigation, a criminal investigation instigated against the accused,

22     his Defence team, and his witnesses, a criminal investigation instigated

23     by the Prosecution in an -- without adequate due diligence.  Excuse me.

24     In an -- sorry, that's my typo, Your Honour.  That was requested directly

25     by the Prosecution to this sitting Trial Chamber during our trial.  The

Page 3781

 1     Prosecution sought to place us all under a secret ex parte investigation

 2     with no safeguards for protection against prejudice or the appearance of

 3     impropriety or the conflict of interest.  The manner of inserting such a

 4     procedure at this threshold to the same Trial Chamber hearing the case

 5     almost forces the Defence to instruct all witnesses and all Defence

 6     members to seek counsel of independent attorneys so they can properly

 7     defend themselves from the Prosecution's strategic accusations and

 8     allegations.

 9             We have hardly been able to keep up, yet we were supposed to,

10     while in trial, also be conducting all required Defence case preparations

11     and investigation, all for 150-plus victim murder case.  It is an

12     impossible request; yet we did the best we could.  We produced a hastily

13     conceived 65 ter list for notice that was pared down.  We produced a

14     hastily conceived 65 ter list for notice that was pared down around a

15     core group of witnesses.  These difficult preparations had to account for

16     serious unindicted allegations such as rape, murder and torture to be

17     produced to the OTP as a method of alibi rebuttal that has created

18     virtual trials within trials.  And we really needed a year to effectively

19     prepare while an investigation proceeded, but all I asked for was five

20     months to get all affairs in order.  Quite frankly, now that I understand

21     that we have for virtually the entire case been under a cloud of criminal

22     contempt investigation throughout the trial our denied requests by the

23     Defence to the Court raised suspicions in my mind.  You cannot say that

24     the stigma of this ongoing criminal investigation has not impacted the

25     credibility of the entire Defence presentation.

Page 3782

 1             I now have supposed that all parties, now including the Chamber,

 2     simply do not think we have a Defence.  Your problem is how to get past

 3     our right to present a Defence.  We say we deserve the right to present

 4     an adequate Defence free of prejudice or threat of predetermination.

 5             I also note that in this particular case, Your Honour, consisting

 6     of 21 counts in the indictment, there was only one week between 65 ter

 7     and the scheduled start of the Defence case.  By way of comparison, the

 8     Milutinovic case with a 5-count indictment received three months between

 9     the filing of the Defence Rule 65 ter list and the commencement of the

10     Defence case.  The Popovic case with an eight-count indictment received

11     four months between the filing of the Defence Rule 65 ter list and the

12     commencement of the Defence case.

13             THE INTERPRETER:  Slow down, please, slow down.  Slow down.

14     Thank you.

15             MR. ALARID:  The Boskoski case with a 3-count indictment received

16     two months between the filing --

17                           [Defence counsel and usher confer.]

18             MR. ALARID:  The Boskoski case with a 3-count indictment received

19     two months between the filing of the Defence rule 65 ter list and the

20     commencement of the Defence case.  The Hadzihasanovic case with a 3-count

21     indictment received two months between the filing of the Defence Rule 65

22     ter list and the commencement of the Defence case.  The Hadzihasanovic

23     case with a 7-count indictment received three months between the filing

24     of the Defence Rule 65 ter list and the commencement of the Defence case.

25     The Delic case received 1.5 months in preparation after Rule 65 ter

Page 3783

 1     filings.  The Limaj case received one month of preparation after Rule 65

 2     ter filings.  The Oric case received one month of preparation after the

 3     Rule 65 ter filings, and the Mrksic case received two months between the

 4     end of the Prosecution case and the start of the Defence case.

 5             Note the Vasiljevic case had two to three weeks prep time, but

 6     all time up front.

 7             The foregoing are almost all of the recent cases at this

 8     Tribunal, and why a start picture is drawn, why is this case being rushed

 9     to judgement so much?  Why?  Why is Milan Lukic not entitled to the same

10     safeguards, the same right as other accused in this Tribunal, including

11     the right to prepare and the right to present a Defence?  Why is this

12     Trial Chamber declining to listen to our arguments, presenting the facts

13     that we need time, a fair and reasonable amount of time, to prepare for

14     and discharge our duties to defend Milan Lukic and ensure he gets a fair

15     trial promised to him, indeed, enshrined for him in the statute and the

16     rules?

17             The requirement by the Court means that each and every witness

18     will be brought to trial never having met officially by an actual

19     attorney representing the accused before the Tribunal.  The Court has not

20     allowed any attorney adequate opportunity to travel to the region and do

21     any preliminary investigation and screening of materials and evidence to

22     be presented under the watchful eyes of the Prosecution and the Chamber.

23     Having reviewed the tactic of the Prosecution against the co-accused,

24     especially in light of the ex parte and criminal investigation, the team

25     and its witnesses, I know we would be exposed at a great disadvantage.

Page 3784

 1     This would be a new definition of trial by ambush.  Accordingly, we will

 2     not present the witness in good faith that we are meeting for the first

 3     time at a hotel here in The Hague.

 4             Under these circumstances, it is unacceptable to have to have me

 5     take professional responsibility for such a circus.  We have a core group

 6     of Defense witnesses that also have been subject of a Court-sanctioned ex

 7     parte criminal investigation that cannot and will not be presented with

 8     proper due diligence and circumspection by an attorney that will present

 9     that evidence, just like the Prosecution was allowed to do.  And we will

10     be prepared, Your Honour, to show by breakdown and chart the exact amount

11     of time that the Prosecution was -- received and was able to utilize in

12     order to interview, take statements for 92 ter, and then offer proofing

13     over the lifetime of their presentation of this case in contrast to our

14     ability to do the same.

15             Otherwise, our witnesses will become exposed and our Defence will

16     be unable to protect the witnesses and the core rights to a fair

17     presentation of our Defence.

18             Yet the spectre and taint of the Prosecution's ex parte endeavors

19     with the siting Trial Chamber also cannot be ignored, and the legal

20     ramifications must be explored before we proceed.  We must proceed with

21     caution.  The reluctance of the Chamber to release all documents of this

22     unfounded criminal investigation of the accused, his witnesses and

23     members of his Defence team implies that some part of the investigation

24     is pending, and the Court is still seized by the OTP posture.  We believe

25     the tactics of the Prosecution were in reckless disregard of the

Page 3785

 1     potential to contaminate our process.

 2             Your Honours, one of the things that we have a duty and

 3     obligation to bring to the attention of this Trial Chamber is when there

 4     is evidence of persons interfering with witnesses and intimidating

 5     witnesses and trying to pressure witnesses.  As an aside, I'm assuming

 6     that is the basis of the Prosecution's earlier filings.  We have told you

 7     about intimidations and threats that our staff have received when going

 8     out into the field to try and locate and interview witnesses.  We have

 9     told you about threats received from unknown parties by way of telephonic

10     messages.  We will be working on a submission formally setting forth

11     those claims with specific facts to these occurrences including

12     intimidation of our witnesses.  But we can tell you that in addition to

13     the unknown, we have good-faith information belief as to known persons

14     that the Bosnian SIPA police as well as elements of the Republika Srpska

15     and Serbia have an interest in our proceedings and have an interest in

16     bringing about the conviction of Milan Lukic and to do so by thwarting

17     the Defence efforts at all costs.

18             Already we have had a situation reported to us by our staff in

19     the field, so again, we are operating on information and belief because

20     neither counsel has been able to go out into the field where critical

21     witnesses have been interviewed by our staff and made appointments to

22     meet and sign sworn statements to testify for the Defence, only to have

23     SIPA raid their homes and then lose contact for a time, only to

24     re-establish contact to mysteriously recant their earlier agreements to

25     meet or testify.

Page 3786

 1             If you want some proof of this, some good indication has already

 2     been in front of you for some time.  Unknown to us because of its part of

 3     a secret filing by the Prosecution, a secret ex parte campaign waged to

 4     smear and slander the reputation of our Defence team on the part of the

 5     OTP.

 6             I am talking of the ex parte contempt proceedings that we were

 7     only made aware of recently, the ones by which the Prosecution went after

 8     almost every member of our team behind our backs, out of the public eye

 9     and we submit with the absence of good faith.  Despite the requirements

10     and safeguards of Rule 91, an independent amicus curie Prosecutor was

11     neither sought nor appointed to deal with those matters.  We believe that

12     was all and is necessary.

13             To our knowledge, two filings remain ex parte filed by the

14     Prosecution on 13 August 2008 and 29 August 2008 and relating to the

15     contempt investigations.  We see no reason why those ought not be

16     disclosed to us in order to shed light on this matter and permit us to

17     clear our names.  Albeit without a complete picture of the proceedings

18     because we are still lacking disclosure of the initial filings, the 24th

19     of September, 2008, Prosecutor's Report and Submission, which the trial

20     did give to us, identifies that in fact the Prosecution's "source" for

21     these very serious and very damaging allegations is the Prosecution's own

22     staff in Sarajevo working together with the Secret Police of the Bosnian

23     Government, relying on a Prosecution witness who said nothing about these

24     claims when he came to testify, an unknown third-party Bosnian who

25     declines to be a witness, but arrives at meetings with his handler, who

Page 3787

 1     is in the Bosnian Secret Police.  What is a handler in this context?

 2     What is the Prosecution really doing, and was it acting with the required

 3     good faith needed for such a sensitive matter?  We believe the close

 4     involvement of Prosecutors Groome, Sartorio, and Cole to these secret

 5     investigations make them conflicted witnesses and disqualify them as

 6     counsel.

 7             MR. GROOME:  Your Honour, just a brief note, whether --

 8             JUDGE VAN DER WYNGAERT:  Yes, Mr. Groome.

 9             MR. GROOME:  Just briefly whether we should be in open session.

10     The Chamber removed the ex parte status of these proceedings but didn't

11     make them confidential.  While in principle I have no objection to

12     further disclosure being made of this, it has caused quite considerable

13     security concerns for the witness who came forward confidentially, and

14     I'm concerned that -- whether or not Mr. Alarid is providing so much

15     detail about this person and the organizations that he brought his

16     information to that we might be further jeopardising this particular

17     gentleman.

18             MR. ALARID:  Your Honour, we would object to any of this being in

19     closed session.  We feel that that is part of the complexity and

20     complicity of the process in bringing the innuendo of improper dealings.

21     It is only through the public trial system, and I of course would concede

22     that we should protect the identity of anyone that needs protection, but

23     that is our witnesses as well.  But I think at this point in time, we

24     would ask that this entire conversation be made public, and I will take

25     due care not to expose the identity of any witness.

Page 3788

 1             JUDGE VAN DER WYNGAERT:  Please proceed, Mr. Alarid, but be very

 2     cautious.

 3             MR. ALARID:  Of course, of course.

 4             The rationale to file this in front of the same Trial Chamber

 5     where we appear also presents a question of conflict and extreme

 6     prejudice, and as a threat to our witnesses, the Prosecution apparently

 7     revealed to Bosnian authorities the identities of some of our witnesses

 8     who have already been granted protective measures.  They revealed the

 9     identity of one to Mr. Vilic, the fear of whom was the basis of

10     protective measures already granted.  How do you remedy that, Your

11     Honours?  But look at the -- let us look at the chronology, as it is

12     quite telling.

13             Before I go too far, I would be remiss if I did not also give the

14     Prosecutors full credit of their evidence in addition to the

15     aforementioned sources, including trip indirect hearsay.  They also

16     brought Mr. Vilic, a convicted killer who killed multiple persons and

17     maimed dozens of others by throwing multiple hand grenades

18     in "self-defence" and blowing off -- and blowing off his own arm with the

19     second consecutive "self-defence" grenade in a crowded nightclub.

20             So the beginning of August, we have the Prosecutor and the

21     Bosnian Secret Police, the reluctant indirect witness, who can't talk

22     without his Secret Police handler.  We don't know all the details, but it

23     would appear that this is the birth of the plot to blacklist the Defence.

24             We have the 13th and 29th August filings by the OTP.  We don't

25     know what they are -- excuse me.  We don't have the 13 and 29 August

Page 3789

 1     filings by the OTP.  We don't know what they are, but they must relate to

 2     the joint efforts of the OTP and the Bosnian Secret Police.

 3             Now, while this is going on, a witness here, VG-11, a witness

 4     that had a long statement, that didn't mention Milan Lukic back in 1992

 5     but then meets with one of attorneys in the contempt investigation,

 6     Ms. Sartorio, and miraculously after being in the control of the

 7     Prosecution August 22nd, 23rd, and 24th to be proofed, he presents a

 8     proofing statement into evidence, one that was late disclosed to the

 9     Defence and thus objected to, a proofing statement that was witnessed by

10     Ms. Sartorio and signed by the witness and Ms. Sartorio where Milan Lukic

11     is now inserted, again, out of the blue where he had not existed before.

12             I believe Ms. Sartorio made herself a witness in this way, and

13     more interestingly, we can look at the dramatic changes in this witness

14     testimony, VG-11.

15             But what is most interesting is that the witness is silent about

16     any knowledge of contempt or bribery, but within days of leaving The

17     Hague after his testimony, he is all of a sudden being contacted 1

18     September 2008 by the OTP to allege indirect third-degree hearsay of

19     bribery allegations that eventually leads to Mr. Vilic.

20             The secret ex parte filings are follows:  4 September 2008,

21     urgent motion -- the 4 September 2008 urgent motion to force Registry to

22     provide info on support staff and members of Defence team.

23             9 September 2008, order granting partial access to files of

24     Defence team support staff.

25             12 September 2008, urgent OTP motion to amend charges to include

Page 3790

 1     Vilic allegations.

 2             16 September 2008, urgent motion to seek to initiate

 3     investigation and gain Registry file on Dragan Ivetic, my co-counsel.

 4     This ultimately was held to be unfounded and a misrepresentation of facts

 5     and the transcripts of proceeding to claim that Mr. Ivetic was in Bosnia

 6     with Mr. Vilic.

 7             The 22nd of September, 2008, the third urgent OTP motion for

 8     telephonic records from UNDU.

 9             23rd September 2008, order as to Vilic allegations being added.

10             24 September 2008, order denying probable cause to institute

11     contempt investigation of Dragan Ivetic.

12             24 September 2008, Prosecution submission and report.

13             And the 6th of October, 2008, decision on outstanding matters.

14             The sheer number of filings and their very sensitive nature being

15     presented to and read by the Trial Chamber for so long without Defence

16     having notice of or the ability to respond and refute the same as grossly

17     prejudicial to the Defence and how it is viewed by the Trial Chamber.

18             Upon Mr. Ivetic's appointment as full co-counsel on Thursday,

19     October 23rd, 2008, at 5 p.m., he has had to fight a constant battle,

20     treated with suspicion by UNDU even a full month after the Trial Chamber

21     denied the contempt investigation of the Prosecution by pointing out how

22     baseless it was.  At UNDU, they would not let him meet alone with

23     Mr. Lukic and have interfered with his ability to have privileged phone

24     communications.  Now with the disclosure of the ex parte filings, it is

25     clear to us why, and it is clear to us what the goal of the OTP was, and

Page 3791

 1     they have been successful.

 2             We feel strongly that research and motions practice must be

 3     completed and we are just beginning our response investigation.  We turn

 4     to insight provided by Judge Patricia Wald, the judge of the

 5     International Criminal Tribunal for the former Yugoslavia from 1999 to

 6     2001; a judge on the United States Court of Appeals for the District of

 7     Columbia; and an LLB from Yale Law School.

 8             Commenting on her experience in the ICTY, your human instincts

 9     don't go away.  They shouldn't.  You inevitably feel compassion or

10     empathy for victims you believe, but at some point your judicial

11     instincts take over and you start thinking in terms of evidence,

12     credibility, opportunity for observation, the same as trials in domestic

13     courts.  I did hear some horrible things, but like a doctor who deals

14     with tragic illnesses, you do the best you can to sort the real story

15     out.  You function as a judge, not as a counsellor or a therapist.

16             "But in my time, ICTY case law has put a judicial gloss on those

17     terms that required indicia of credibility and reliability prior to

18     admission.  It is simply not true, in my opinion, that only juries, not

19     judges, need such restrictions.  Donning a robe does not enshroud its

20     occupant with a 7th sense of whether something written on paper is true

21     or false.  In that sense, the judge is on par with the juror, who must

22     rely on his or her human instincts in evaluating the person doing the

23     testifying to permit critical material to be admitted without the ability

24     to directly view and question the witness goes to the heart of the

25     process and threatens to squander the ICTY's most precious asset:  Its

Page 3792

 1     reputation for fairness and truth seeking."

 2             I will also quote Judge Hunt, who presided over the Vasiljevic

 3     matter.

 4             Judge David Hunt, who previously served as a Supreme Court

 5     justice in Australia and is now an appeals judge here, recently vented

 6     his frustrations in an uncommonly strong dissent.  He argued that the

 7     Tribunal would not be judged by the number of its convictions or the

 8     speed at which it completed its mandate, "but by the fairness of its

 9     trials."

10             Judge Hunt objected strongly to several recent appeals decisions

11     because he said they favored the Prosecution rather than the rights of

12     the accused.  Those decisions, he warned, "will leave a spreading stain

13     on this Tribunal's reputation."

14             Such language is unusual in the polite quarters of this Court of

15     16 permanent judges, but Judge Hunt before retiring told colleagues he

16     felt obliged to warn against an unfortunate "new trend" in which some

17     judges seemed eager to assist the Prosecution in order the speed up

18     cases."

19             In terms, Your Honours, of dealing with the actual scheduling

20     problems and preparing for witnesses, we cannot underscore the

21     difficulties of doing this right before the Christmas break.  Scheduling

22     problems are enshrouded with the witness and victims units, where they

23     need necessary time periods before we request their presence to clear up

24     visa matters and passport matters.  They need a good lead time, really

25     much more than the Court does or requires for our Thursday

Page 3793

 1     afternoon submissions for the next week witnesses.  Witness and victims

 2     unit actually need it much before that.  It is for that reason that I did

 3     not start last week or this week because there was simply no time to do

 4     that, and if you give the Prosecution's allegations between us and our

 5     witnesses, how can I bring a witness before you if I have not judged that

 6     witness's credibility myself?

 7             What it allows is it allows the Prosecution to have the only

 8     voice, and all I can tell you is, I don't know, or I'm not sure, because

 9     I have a duty of candor to this Tribunal.  If I were to give you an

10     opening statement, Your Honour, the duty of my opening statement is to

11     tell you what the evidence will show.  What the evidence will show should

12     be based on my personal knowledge, not on a scattering of summaries

13     provided by an untrained investigator in the field doing the best she can

14     while trial is commencing and both attorneys are required to be in court

15     because Mr. Ivetic at that moment became my sole translator and ability

16     to communicate with my client.  I can't tell you how difficult it is, but

17     what I will not do, if my witnesses are going to be accused of perjury in

18     any aspect of this Court, my failure to do due diligence by comission is

19     suborning of perjury and not allowing me to talk to these people and

20     compare them and scrutinise them and give them a little bit of

21     cross-examination that they might experience from Mr. Groome, gives me,

22     as I think -- because, Your Honour, I think I came into this process as

23     objective as I could because I did not know the region.  I was only

24     tacitly familiar with the history.  I had no prior contact with the

25     Serbian Bar, much less Mr. Lukic.  And so I came in here a brand new baby

Page 3794

 1     and was thrown into the deep end of the pool and told to learn to swim.

 2             Now I can do that on the Prosecution side of the case only

 3     because in my practice I get up and try cases every day on a moment's

 4     notice, and they're not as voluminous as this, so I tend to have my

 5     up-front investigation and comfort level with the facts of the case well

 6     under way by the time a judge says, Today's your day, Jason.  But in this

 7     setting, I could not do that, and it would have been difficult, your

 8     request, if we were in Bosnia and all our witnesses were just a stone's

 9     throw away to try and coordinate the number I gave you on that 65 ter

10     list, either first or second chance.  What my hopes is, Your Honours, is

11     what we are going to do, is Mr. Ivetic is going to spend the next few

12     days in Bosnia, and we're going to talk to as many of these witnesses as

13     we can.  It is at that point that we can comply with your request to make

14     decisions on 92 ter versus viva voce.  We can't do that until we actually

15     have a statement, and I'm not going to present a statement under any

16     atmosphere that's this scrutinised, especially with the criminal contempt

17     in the background.

18             We will be raising the ability of the Court to proceed under

19     these circumstances, but we have not done the proper research, and I do

20     not want to speak before I should, but we think that the uncommon and

21     unusual circumstances of how this case developed, how this side issue,

22     this trial within a trial involving Mr. Vilic actually brings some very

23     difficult positions for our President to deal with because of his

24     election to the President of the Tribunal.

25             As I go to the rules on disqualification of a judge and what it

Page 3795

 1     would entail to raise that, the President himself is the last bastion of

 2     decision, and then it goes to the Vice President, but the problem with

 3     that is the Vice President and the President here of course have a

 4     long-standing relationship.  And with the completion strategy so hanging

 5     over all of our heads, it's hard to figure out where that is the main

 6     focal point, or to be honest, Your Honour, I can't tell you how many

 7     times I have felt in my heart that nobody in this room even thinks we

 8     have a defence despite actually brought up good-faith contradictions

 9     simply within the Prosecution's own witnesses.

10             If you think of other scheduling issues that we have to deal

11     with, Your Honour, we have to deal with Bajram, which started 8th of

12     December, 2008, and many Bosnian witnesses would be unavailable to meet

13     even at this time.

14             Of course we have our own Christmas holiday, 24th and 25th of

15     December and the Christmas breaks on the 20th, and you must understand,

16     Your Honour, the Registry cuts our pay as if we work nothing during this

17     time.  The Registry pays us for 150 hours of work a month, as if that's

18     what we really do.  You can see that it grossly should exceed that if

19     you're an attorney in trial presenting your case or responding to the

20     Prosecution's case.  We have all doubled that.  We work at half-pay as it

21     is.  We have Ms. Jelena Rasic who technically is under the suspicion of

22     this Tribunal, and she is my lone investigator, but guess what?  The

23     Registry will not appoint her or authorise her to be my "investigator"

24     because she does not have the right qualifications or certifications.

25     Mr. Ivetic and myself, because we are only a level 1, have agreed to

Page 3796

 1     split her salary.  Now we are paying for the Milan Defence out of our own

 2     pockets, regardless of hourly wage arguments.  We are now having to cut

 3     to attempt to meet the Court's requirements.  You cannot let an engine

 4     run on half oil.  You either need the time to get to your destination or

 5     you fill it up all the way and then run it full speed.  I believe we

 6     could have done this had we had two full-time paid investigators or

 7     what-not throughout this, and maybe we would have had your requirement,

 8     but that still would not have substituted for an attorney's travel to the

 9     region.  And the problem, is Your Honour, I can't travel by myself.  I

10     need someone who speaks the language.  It limits our about to cover

11     people in a reasonable amount of time.

12             I would be absolutely pleased if we were able to talk and comply

13     with witness-gathering and summaries of two witnesses a day.  If you look

14     at the cover sheets of each and every Prosecution statement that's been

15     introduced into evidence, it documents the dates a witness has been seen,

16     the number of personnel it's been seen by, the Prosecutors present, the

17     investigator present, the interpreter present, and it shows the necessary

18     resources that it really takes to present their case.  I ask for only

19     some of the consideration in presenting ours.

20             The difficulties with religious holidays for our witnesses also

21     include the 31st of December, 1st of January, which is, of course, the

22     popular new year's holiday, but you also have the 6th and 7th of January,

23     which is the orthodox Serbian Christmas holiday, and the 12th of 13th of

24     January is the Serbian new year.

25             And citing to President Martti Ahtisaari, the former president of

Page 3797

 1     the Republic of Finland:  "All trials must contain an element of risk,

 2     namely the risk that the accused is freed.  If this aspect is missing,

 3     what we have is a show trial, a symbolic process that merely ratifies a

 4     conclusion already reached by other considerations."

 5             We also have the complicating preparatory factors surrounding the

 6     most recent cut-off of our client's ability to prepare.  The cut-off of

 7     phone privileges that was ruled unfounded by our Vice President.  My

 8     client was forced to make a handwritten plea to the President because

 9     Mr. Ivetic, although just having left a meeting, the authorities wait

10     until he leaves, and by the way, they do this every time to give

11     Mr. Lukic some very important legal documents that could affect his

12     rights.  I mean, is this calculated, when an attorney leaves and then

13     shortly thereafter they give you something that cuts off your phone?

14             That is what we've been dealing with, and that is why when you

15     involve the Registry and UNDU in this spectre of criminal activity,

16     everyone has by human nature gotten involved.  I think everyone has by

17     human nature offered their own personal judgement, and we have felt that

18     judgement.  It has had a chilling effect on our Defence.

19             Your Honours, these very serious irregularities have already been

20     brought to your attention by Mr. Lukic and Mr. Ivetic while I was out of

21     town, as to matters undertaken by the Prosecution through UNDU and the

22     Registry that we believe was meant to obstruct the Milan Lukic Defence

23     before it even began.  Vice President Kwon has already determined and

24     ruled that these actions have impacted upon and hindered the Defence

25     preparations.  You are bound by that.  You've been exposed to it.  That

Page 3798

 1     bullet cannot be returned to the gun, and now we must examine what the

 2     nature was.  Unfortunately, the media storm caused by the Prosecution and

 3     Registry has run its course unabated and gone throughout the Balkans,

 4     making work much more difficult, if not impossible.

 5             We have an ethical and professional obligation to uncover the

 6     truth of these accusations and stigma that the Prosecution has chosen to

 7     utilize to impact the ability of the Defence.  We have a duty to our

 8     client to try and salvage the good name of the team and get usable

 9     information and try and salvage his Defence.  We thus have to take

10     matters into our own hands and launch our own investigation as the

11     Registry itself has implicated in the events in question.

12             I would like to update you -- or excuse me, take the opportunity

13     to update you on what has been done as of today.  Today, Your Honours, we

14     have served and propounded upon various parties a substantial amount of

15     discovery.  This morning, courtesy copies were sent by e-mail and

16     certificates of service were filed and will be a record shortly for the

17     following.  As to the matter of the destruction of critical evidence by

18     the UNDU unit related to disproving the allegations of Vilic, the bribery

19     allegations against the team.  We have propounded a comprehensive first

20     set of 13 interrogatories, not including subparts, to be answered under

21    oath or under verification by the Registry.  Those were sent to (redacted)

22     the Registry officer who responded to the original Trial Chamber's

23     inquiry.  That packet also contains an additional 11 requests for

24     production to try and understand why it took the officials of this

25     Tribunal over a month to respond to our requests for access to the

Page 3799

 1     exculpatory telephone recordings by saying they had already been

 2     destroyed.

 3             We have requested the Registry to respond within five days.

 4     Normally it wouldn't be that short, Your Honour, but we feel we are all

 5     under the time pressures to get this case moving along, but normally in

 6     the States, of course, that would be 20 to 30 days to answer ordinary

 7     interrogatories.

 8             As part of that process, we hope to gain usable witnesses and

 9     testimony as to the contents of the telephone calls and verification that

10     insofar as they were deemed innocuous and destroyed, Mr. Vilic's

11     assertions of attempted bribery in those conversations are unsustainable.

12             At that point it would be up to Your Honours to consider pursuing

13     contempt against Mr. Vilic and anyone else for presenting such false

14     testimony.

15             With regard to the Prosecution, Registry and UNDO actions to ban

16     Mr. Lukic's telephonic privileges in the middle of Defense preparations

17     we will be seeking for Judge Kwon's order to be made public and try and

18     reverse the damage caused --

19             THE INTERPRETER:  Slow down, please.  Thank you.

20             MR. ALARID:  We will try to reverse the damage caused by the rush

21     to the media by the organs of the Tribunal with again incorrect

22     assertions and allegations.  We want the transcripts of these

23     conversations also to be released publicly so that the assertions made by

24     the Registry and the Prosecution in the media can be put to the test so

25     the world can see that Milan Lukic was not intimidating any Prosecution

Page 3800

 1     witness but rather to locate a Defence witness essential to uncovering

 2     the truth.

 3             We have also caused interrogatories to be served upon Mr. Groome

 4     of the Office of the Prosecutor.  In addition, nine requests for

 5     production have been propounded to Mr. Groome.

 6             Similarly a separate passage was served upon deputy registrar Don

 7     Hocking consisting of 21 interrogatories to be answered under oath and 10

 8     production requests.  As part of this, we have separately served upon

 9     acting commander officer of UNDU, Fraser Gilmor a passage consisting of

10     22 separate interrogatories and 10 production requests.

11             Again the respective parties have been given only five days to

12     respond so we can illuminate what happened, why it happened, and what the

13     potential malfeasance is at issue and whether good faith was employed.

14             Again, understand this is a short time.  We would entertain

15     allowing extensions of that in hopes that also we could simply stay

16     working while we get to the bottom of this, simply spending time in

17     Bosnia and meeting the people that we're going to be bringing here, but

18     I'm very hesitant to bring anyone here, meet them last night for the

19     first time and then set them in this chair to be answer open target for

20     cross-examination without prior due diligence.

21             We're also anticipating a number of other legal issues to be

22     raised by the Court.  I am going to ask you to revisit the 98 bis as to

23     Bikavac.  The reason I'm doing this, Your Honour, and doing it as a

24     simple single count is this:  I feel that, although written in good

25     faith, the statute in and of itself causes a legal quandary that cannot

Page 3801

 1     be resolved, because the 98 bis rule was written so similar to an

 2     American directed verdict, it anticipates that all the Court has to

 3     decide is, is there sufficient evidence to move what to a jury.  But the

 4     problem, is Your Honours, is you all have the ability to decide a case

 5     upon reasonable doubt as if the Defence put on no evidence, so if you

 6     pass it on to yourself, what implications does that have if you choose

 7     not to look at each count without entertaining reasonable doubt in

 8     absence of a Defence case?  The reason we are going to do it on Bikavac

 9     is we believe we can focus quickly on transcript excerpts and/or

10     statement excerpts.  We can include photos, and we're willing to do it

11     almost like a short closing argument as if we had put on no Defence.

12             The reason we ask this, Your Honour, is really simple and goes to

13     the efficiency of the Court.  We feel a full 30 per cent of our witnesses

14     will be fighting against Bikavac, and you -- and I have made no bones

15     about believing that I don't believe this incident happened the way it

16     was charged.  I believe that even as it stands, it falls short on many

17     principles.

18             In reviewing the Court's decision on 98 bis, I will be also

19     asking you to revisit the Chapeaux arguments.  The reason I will be doing

20     that, Your Honour, is that in noting that the only evidence of

21     Mr. Lukic's involvement in a common scheme plan from a position of being

22     part of the system, per se, the police, the army, the chain of command,

23     the first reference to his involvement was following the interview upon

24     his arrest in November of 1992.  There is no reference date to when he

25     began in the military, only an affirmance in November that he was a

Page 3802

 1     soldier in a group called the Avengers.  Not White Eagles.  The Avengers.

 2     The interesting quandary I think you have, Your Honour, is with the war

 3     starting only April 6th and the relevant periods of the indictment only

 4     flowing really through July 27th -- June 27th with the exception, of

 5     course, of Uzamnica, I think you need under Chapeaux to decide whether or

 6     not the OTP has proved beyond a reasonable doubt the Chapeaux element of

 7     Mr. Lukic's actual involvement --

 8             JUDGE VAN DER WYNGAERT:  May I interrupt you, Mr. Alarid.

 9             MR. ALARID:  Of course, Your Honour.

10             JUDGE VAN DER WYNGAERT:  You are getting into the substance of

11     what you want to discuss now.

12             MR. ALARID:  Yes -- no.

13             JUDGE VAN DER WYNGAERT:  We can raise that --

14             MR. ALARID:  That was just the motion.  I'm literally that far.

15             JUDGE VAN DER WYNGAERT:  Okay.  Thank you very much.

16             MR. ALARID:  So that is something, again, we will be filing -- we

17     will also be asking the Court and invoking Rule 15 -- we will be invoking

18     or exploring the invocation of Rule 15, and unfortunately, the potential

19     disqualification of the presiding judge or Trial Chamber based on the

20     co-mingling of this internal criminal investigation and its impact on the

21     nature of fair trail.  We feel that there would have been other remedies

22     that could have been sought within the system, such as filing the

23     allegations under a miscellaneous number, seeking an amicus curiae

24     Prosecutor and/or another Trial Chamber to hear the allegations so that

25     this Court could have proceeded without having to second-guess the

Page 3803

 1     Defence or any witness or cross-examination we presented during the

 2     course of trial.  The issue surrounding the President simply also are not

 3     just compounded by the fact that he is now the Registry President and

 4     most avenues of review fall to him.  Will this -- but I think it's fair

 5     to anticipate but could this result in maybe the unprecedented motion for

 6     a mistrial in this case?

 7             We must look to, also, and I think it's very pointed in VG-11 and

 8     the fact that VG-11 himself is integrally related to the contempt

 9     proceedings against this team, is by signing and attending multiple

10     statements without safeguards of recording and especially while actually

11     participating in the questioning and investigation of witnesses for new

12     facts and then reducing those to statements and then those statements

13     changing over time, do attending Prosecutors make them themselves

14     witnesses?  Prosecutors do not enjoy privilege such as we do, and absent

15     to safeguards, for instance, Your Honour, I take a tape recorder to every

16     witness interview that I do -- I take a tape recorder to every witness

17     interview that I do, and the best case scenario is having both attorneys

18     present.  When an attorney participates in the generation of an affidavit

19     or a statement and there's no one else to verify, there always runs the

20     risk that the attorney can be called as to the truth or veracity of the

21     statement unless the safeguards are taken.  The simplest way is normally

22     the investigating officers or the investigators do all the questioning.

23     Then the attorney is only a bump on a log in the corner but is not

24     intimately tied to the statement.

25             In this particular case, for instance in VG-11, and the ongoing

Page 3804

 1     investigation and participation in these contempt proceedings,

 2     Ms. Sartorio was present at the witness's statements before the

 3     allegations came to light.

 4             JUDGE VAN DER WYNGAERT:  May I ask you to finish, Mr. Alarid.

 5             MR. ALARID:  Yes, Your Honour, of course.  And there's a great

 6     deal of jurisprudence on moments when Prosecutors inadvertently make

 7     themselves witnesses in a criminal proceeding.  The sad thing is, Your

 8     Honour, in my jurisdiction that's easily cured.  Simply get the

 9     Prosecutor from the next county to cover the case and take over, but in

10     this particular case and with the co-mingling of the system, I don't even

11     have any idea what solutions to raise to these problems.  When a Court is

12     disqualified, it's easy to go down the hall and get a new judge, but

13     this, I don't even know what to do.

14             And so the fact, is Your Honours, I hope you take leave that we

15     will be diligently narrowing and focussing and really learning our

16     witnesses during what I hope is a break.  I will give you time sheets and

17     status reports as often as you want, but what I didn't want to happen,

18     Your Honour, is come in every day to court and the Court dissatisfied.

19     Like you said, we have a duty to do a good job, and I would otherwise be

20     lying to the Court, and I cannot do that in good faith.

21             I ask for your understanding.  But the legal issues on top of

22     this, I also think should be looked at with such careful consideration

23     because I don't think there is any precedent for this situation.  I could

24     be wrong, but I don't think there is.  Thank you.

25             JUDGE VAN DER WYNGAERT:  Thank you, Mr. Alarid.  You are not

Page 3805

 1     going to give an opening statement, but you have given a long statement

 2     instead in which you have raised a number of issues.

 3             The bottom line as I see it is that you are not ready to start

 4     with your case and that you are not clear about when you will be able to

 5     proceed.  From that, I conclude that you were not able to comply with our

 6     order which we gave after due consideration of your request some time ago

 7     to have a break of, if I remember, two months.  We took all your

 8     arguments then into consideration, and as far as I can see, there are a

 9     number of new elements but basically the situation is as it was just

10     after the 98 bis ruling, and that is that you are not ready with your

11     case and you have not made the progress that one would have anticipated

12     which have been by this moment in time.

13             MR. ALARID:  That is true, Your Honour.  For instance, we were

14     going to make a stab.  We've given victims and witness two names of

15     people to bring to the court.  The problem was is they weren't sure they

16     were going to be able to give us anyone before tomorrow and Thursday, so

17     that's all I would have been offering you.

18             Now, from a viva voce perspective, Your Honour, that might not

19     have been so bad, but we were really having a hard time coordinating

20     people because of problems of staffing, ability to get there, who are --

21     may I call her an investigator but she's been rejected by this Registry,

22     and she is technically not part of the payment plan, but we're doing it

23     anyway.

24             JUDGE VAN DER WYNGAERT:  May I interrupt you, Mr. Alarid.

25             MR. ALARID:  Of course.

Page 3806

 1             JUDGE VAN DER WYNGAERT:  You have been raising these kind of

 2     problems throughout most of the case, and we are aware of the problems,

 3     but we have also given you a number of facilities that haven't been given

 4     to other Defence teams in other cases.  I note that the cases that you

 5     were referring to, the Milutinovic, Popovic, Boskoski, and Hadzihasanovic

 6     cases where they break may have been longer between the Prosecution case

 7     and the Defence cases, but you mustn't forget that these were

 8     multi-accused cases.  Not all of them.  Not Boskoski and Hadzihasanovic,

 9     but Milutinovic and Popovic were.  In many of these cases, the Courts

10     have not been -- only have been sitting five days a week.  We have been

11     sitting four days a week, but they have been sitting five days a week and

12     very often they have been sitting full days.  So the pace of the cases

13     were much higher than what we have done in this case, so I don't think

14     that you have been disadvantaged as counsel in this case in comparison to

15     other counsel.  So I can only note that are you not ready to start with

16     your case.

17             MR. ALARID:  May I make a comment to that comment, Your Honour.

18             JUDGE VAN DER WYNGAERT:  Yes.

19             MR. ALARID:  I think a multi-defendant case makes it easier.

20     See, the issue is, Your Honour, is maybe if the Cepic team had had more

21     witnesses, it may have been easier.  Giving us that break didn't because

22     of course I left to talk to experts, but Mr. Ivetic was here.  Had the

23     Cepic case been a month, we would have had that month.  And that is the

24     quandary because with such a small staff, because Milutinovic, not only

25     do they have -- but they also had the ability to hire five staff people

Page 3807

 1     in addition to the two attorneys.  So the thing is those extra four staff

 2     people allocated over what we're allocated can take on those tangential

 3     duties of travel, interview, and things like that, and we have not had

 4     that benefit.  The time you gave me at the beginning of this case, Your

 5     Honour, was so I could get ready for their case.  How am I supposed to go

 6     to Bosnia and interview people?  We gave you ten witnesses by the end of

 7     those six weeks we received at the beginning of the case that break,

 8     intermediate break between the first three witnesses and the next

 9     witnesses.  But, Your Honour, we had to prepare for a case that

10     originally had 142 people interviewed.  I don't know how fast you think I

11     can read, and I do not have magical powers to be in two places at once,

12     complying with the Court's orders.  If you were to call what I have done

13     reasonable, because I'm only going to say, if you say that you have

14     offered me reasonable opportunities then you are actually telling me I am

15     unreasonable, and the only way I can assume that is that I've acted in an

16     unreasonable fashion and not complied with your requests, and the reason

17     I am passionate about that is because I think we have done the best I

18     can, considering I didn't have co-counsel.  I was forced to trial.  I was

19     forced to get my client off a hunger strike to accept proceeding to trial

20     without co-counsel, and I did so.  And I cross-examined witnesses every

21     day in a 92 ter bis situation where the Prosecution's time was 20

22     minutes, and then I had to go.  It gave my very little time other than to

23     deal with the witnesses at hand, not thinking of some esoteric witness

24     that I've never interviewed in Bosnia.

25             So I've given this Court what I can, but what I'm not going to do

Page 3808

 1     to this Court is lie to it.  I will not.  By some completion strategy or

 2     worse, me selling out my client, because it would be very easy for me,

 3     and that's what's chilling on me, Your Honour, is I don't think I would

 4     be called on coming in here and presenting a skeleton defence.  I think I

 5     would be called on it.  I think I would present the skeleton defence and

 6     move beyond it and whatever happened would happen, so long as I didn't

 7     complain and things move slowly to completion.

 8             But the problem is, Your Honour, is my client is facing 40 years.

 9     I know it.  I accept it, and I think if he's convicted on a single count,

10     40 years.  Maybe not Uzamnica, but anything else, he's facing that.  For

11     me -- and the problem is, Your Honour, I don't just have to defend five

12     counts.  They bring in rapes to disprove alibis.  If I'm going to

13     contradict a rape, I have to bring in witnesses against that because that

14     goes to the credibility of that alibi rebuttal.  If they brought in a

15     triple homicide or a double HDZ has one of the alibi rebuttals, how can

16     we avoid having to explore and investigate those matters as well?  These

17     all happened in flow with trial.

18             JUDGE VAN DER WYNGAERT:  May I interrupt you, Mr. Alarid.

19             MR. ALARID:  Of course.

20             JUDGE VAN DER WYNGAERT:  We have been having this conversation

21     over and over again, and this Trial Chamber has tried its best to

22     accommodate you, but you must understand that there is a limit in the

23     time that we can give you, and we have made the ruling and we ask you to

24     abide by that ruling.

25             MR. ALARID:  But justice deserves all necessary time, Your

Page 3809

 1     Honour.  There is no bright line for that.  Every case is different.

 2     Every factual case is different, and what has made this more difficult --

 3             JUDGE VAN DER WYNGAERT:  Well, Mr. Alarid, this Trial Chamber has

 4     made its ruling, and we just ask you to comply with the ruling.

 5             MR. ALARID:  And I accept that, Your Honour, and I think -- all I

 6     ask is I will make good faith submissions and I will justify and explain

 7     all actions as we proceed forward.  But I cannot in good faith present a

 8     Defence that I am not familiar with by lack of personal contact until I

 9     am, especially under these allegations.  See, Your Honour, my problem is

10     is I bring a single witness up here, that they have some undisclosed card

11     up their sleeve.  I understand it was traffic misdemeanors with one of

12     Mr. Lukic's, Sredoje Lukic's witnesses, but I'm assuming they are able

13     through the process of their power do investigations against my witnesses

14     while I'm just meeting them.  I'm just meeting these people.  They

15     probably know more about my witnesses than I do, and that's not fair.

16             JUDGE VAN DER WYNGAERT:  I think it's time for the break,

17     Mr. Alarid.  After the break, we will hear the Prosecution, and then we

18     will make a ruling.  Thank you.  We will have a 20-minutes' break.

19                           --- Recess taken at 10.17 a.m.

20                           --- On resuming at 10.46 a.m.

21             JUDGE VAN DER WYNGAERT:  Mr. Groome.

22             MR. ALARID:  One last thing, Your Honour.

23             JUDGE VAN DER WYNGAERT:  Yes.

24             MR. ALARID:  One last thing, Your Honour, just to inform the

25     Court, we received an e-mail from witness and victims unit, and of the

Page 3810

 1     two witnesses that we had offered for this week, one of them by

 2     miscommunication or otherwise did not give his passport or refused to

 3     give his passport to the victims witness down there so they could process

 4     the final visa.  So that is one of the little things that -- we want the

 5     witness to have a comfort level with us because it's sort of like putting

 6     a kid on the plane to fly by himself never having met the people on the

 7     other side or anything like that.  And I know a deadline today is to

 8     reduce our witness list.  That's what we're hoping to do, and so what I

 9     ask of the Court is patience, because one of the things is, no, I'm not

10     going to bring witnesses today, but not to be contrary to the Court.

11     It's because I want to be in good faith at all aspects of proceeding,

12     especially with the raised scrutiny that I think we've all been under on

13     this.

14             I would ask for sort of leave for this, and here's a suggestion

15     I'd like to offer you:  We have until March 6th to complete our case.

16     Okay.  One of, I think, the reasons you wanted us to reduce our refine

17     our witness list is to, one, make sure we meet those deadlines.  I think

18     that's one of the main reasons from a judicial economy perspective.  That

19     will be our utmost goal as we proceed forward.  We're not going to stop

20     working.  This isn't a work strike or anything like that.  This is

21     simply, I want to know the witness that stands before you is someone that

22     we've screened, that we've scrutinised, and that we feel proud to bring

23     before this Tribunal without -- we do not intend to add scandal to an

24     already scandalized case.

25             So given the fact that I understand we're taking away our own

Page 3811

 1     time at the front end, we're taking it away, we may not need it, I may

 2     ask for some back but I will not do of this Court unless I have a

 3     well-documented and a lucid argument to do so.  So my intentions are

 4     still to comply with the orders of the Court and the deadlines imposed as

 5     is until we know otherwise, and I would ask for additional time to narrow

 6     down that witness list that involves us having some personal contact with

 7     these witnesses so we can say, hey, this is someone I wouldn't have

 8     brought had I met him for a couple of hours.

 9             One thing, Your Honour, that Mr. Lukic agreed with me, when I

10     agreed to take his case, is, understanding that I am his lawyer and

11     normally we follow the wishes of our clients, but I retain discretion to

12     not produce a witness if I felt that it was in some way unnecessary or

13     otherwise hurtful to his case, where the pros were outweighed by the

14     cons.  I also retained discretion not to bing any piece of physical

15     evidence.  I retained veto power, and I can't say I'm informed enough to

16     even do that.  And so what you would be doing if you don't give me this

17     time to screen my case is -- really is allowing the defendant to run his

18     case, and I become a mouthpiece and a "but," and what I do not want to be

19     is blamed for this case coming to you in a less-than-professional manner,

20     and I fear with me not having the safeguards and scrutiny, personal

21     scrutiny of that, it may devolve to that.  Thank you.

22             JUDGE VAN DER WYNGAERT:  Thank you.  Mr. Groome.

23             MR. GROOME:  Thank you, Your Honour.  Your Honours, last week the

24     Milan Defence team made an affirmative representation to the Chamber and

25     the Prosecution that they would give their opening statement today and

Page 3812

 1     call two witness that they identified.  Instead, without any prior

 2     notice, Mr. Alarid has said that he is not prepared to do that and has

 3     presented us with a very long statement in which Mr. Alarid has made

 4     dozens of serious allegations.

 5             I will demonstrate the fallacy of all of these.  I must insist

 6     that the Chamber give me a full and fair opportunity to correct the

 7     misstatements and misrepresentations on the record.  To leave these

 8     unanswered gives them a credence that they do not deserve and undermines

 9     the credibility of this Tribunal.  He has made these serious allegations

10     against the Court both as a Chamber and its individual members.  He has

11     made it against the Vice President of this Tribunal, against Registry,

12     against the governments of Bosnia-Herzegovina, Republika Srpska, and

13     Serbia, and against the Prosecution and individual Prosecution staff

14     members.

15             I would ask that we reconvene tomorrow at which time I will

16     review the statement of Mr. Alarid and correct the many

17     misrepresentations made and respond to the many baseless accusations that

18     is he has made.

19             I believe that the Registry should also be given an opportunity

20     if they desire to respond to some of the serious allegations made against

21     them and the detention unit.

22             I'd also insist that given the very serious nature of these

23     allegations that Mr. Alarid be required to put them in writing, as well,

24     and annex the evidence that he has to support them so that I might

25     properly meet them and the Chamber may properly consider them.

Page 3813

 1             Mr. Alarid also suggests that we abandon the time-tested rules of

 2     the Tribunal and engage in extra legal proceedings at his suggestion with

 3     respect to an alternative to 98 bis.  I would also like an opportunity to

 4     prepare my response to these suggestions but believe they are more

 5     properly placed in writing.

 6             There is one additional matter, Your Honour, before I can

 7     respond, that I would ask the Chamber to require Mr. Alarid to -- to

 8     respond to or to clarify.  On page 8 of the transcript at line 21, if I

 9     could just get to that.  I'm sorry.  The pagination is different, Your

10     Honour, but the essence of what Mr. Alarid said, he accused several

11     independent organs of this Tribunal of acting in concert to intentionally

12     deny Mr. Lukic a fair trial, a terribly, terribly serious allegation.

13     I'm not sure who it's directed against, whether it's the Prosecution, and

14     I see Mr. Alarid smiling so perhaps this is all very funny and

15     entertaining for him, but I take the matter very, very serious.

16             I've asked Mr. Alarid to state on the record so I can respond

17     tomorrow, what are the independent institutions of this Tribunal that he

18     is alleging have acted together, in collusion with each other to deny

19     Mr. Lukic a fair trial so I can respond to them tomorrow.  Thank you,

20     Your Honour.

21             JUDGE VAN DER WYNGAERT:  Before I give the floor to Mr. Alarid,

22     what I had in mind was to ask Mr. Alarid and the Milan Lukic Defence to

23     file a number of written motions in which a number of these points that

24     have been developed this morning and which, I agree, Mr. Groome, contain

25     very serious allegations against various organs of this Tribunal, that

Page 3814

 1     this be filed in writing before the end of this week.  So I don't want to

 2     deny you the opportunity tomorrow to give an oral response, but I leave

 3     it to you, Mr. Groome.  You may prefer to wait until the written motions

 4     have been filed for you, then, to give your reply on that basis, or would

 5     you prefer to have the opportunity tomorrow to reply orally?

 6             MR. GROOME:  Your Honour, I expect that perhaps written

 7     submissions may be the more proper way to proceed.  I simply want at this

 8     stage to categorically deny all these allegations so that anyone reading

 9     this transcript would not interpret my decision to do this in writing as

10     any kind of admission.  I deny vehemently all the accusation and the

11     misrepresentations made.

12             JUDGE VAN DER WYNGAERT:  Thank you, Mr. Groome.  So you would not

13     insist on having an oral -- an opportunity to respond orally tomorrow?

14     You would -- it would be sufficient for you to respond in writing?

15             MR. GROOME:  Yes, Your Honour, it would.

16             JUDGE VAN DER WYNGAERT:  Okay.  Thank you very much.  Mr. Cepic.

17             MR. CEPIC:  I apologize for interrupting.  I would like to raise

18     one issue on private session with your leave, Your Honour.

19             JUDGE VAN DER WYNGAERT:  Yes.  We'll go in private session.

20                           [Private session]

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 3815

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25                           [Open session]

Page 3816

 1             THE REGISTRAR:  Your Honours, we are back in open session.

 2             MR. ALARID:  While I agree that I think the proper venue to

 3     organise my statement to separate motions, that's absolutely what we

 4     would do.  But I will point Mr. Groome to the point of what I was trying

 5     to make, and you used the term "collusion."  That is a misrepresentation

 6     of what I said.  I said in concert.  The problem is is that in this

 7     system, the Registry, the Tribunal, and the OTP are sort of like the

 8     branches of government, each trying to operate independently but having

 9     in-roads into each other by virtue of the organization.  Everyone has a

10     different goal.  The Prosecution, to prosecute, but I would cite

11     Mr. Groome to the United States Supreme Court and state that the duty of

12     the Prosecutor is not always to convict someone and be an advocate but

13     otherwise to seek justice.  But the problem is is some of the issues that

14     came up in this case were problematic, and the Office of the Prosecutor

15     made strategic choices on how to approach this issue of, let's say,

16     Vilic.  That's huge in this case now because we've had to defend this

17     trial against our credibility within the confines of our trial.

18             Yes, Your Honour.

19             JUDGE VAN DER WYNGAERT:  May I interrupt you, Mr. Alarid.  You

20     have had ample time to discuss all this this morning.  I think it's time

21     now to close this discussion and to ask you to put what you've been

22     saying in writing and to give Mr. Groome the opportunity to respond to

23     this.  I would kindly ask you to stop with this kind of argument and put

24     it in your --

25             MR. ALARID:  Simply to point Mr. Groome in the direction where we

Page 3817

 1     believe there is evidence of the governmental entities over there being

 2     involved in this case is the police report related to the contempt

 3     proceedings.

 4             JUDGE VAN DER WYNGAERT:  That, you will put in your motion.

 5             MR. ALARID:  Yes, Your Honour.  Of course.

 6             JUDGE VAN DER WYNGAERT:  And so we hope to receive all this by

 7     the end of this week.

 8             What I want to emphasize, however, is that the ex parte contempt

 9     proceedings ultimately led to a dismissal of the motion and that the

10     Trial Chamber has very clearly indicated that we were not going to draw

11     any adverse inferences from that.  So with that in mind, I would kindly

12     request you, Mr. Alarid, to focus on the facts and on the way in which

13     this motion has been handled by the Trial Chamber.

14             MR. ALARID:  But Your Honour, and the only thing I'd ask is, I

15     would feel more comfortable if we received the two -- because you're

16     right, I'm making some assumptions in the vacuum, and I would ask for

17     release to us from ex parte status to confidential status the referenced

18     August 13th and 29th filings so I might have a complete picture of the

19     allegations.  Given that, I may change the tempo of my concerns.  They're

20     concerns.  They're not allegations, Mr. Groome, they're concerns.

21     Because when we're talking about conflicts of interest, it is the

22     appearance of impropriety that needs to be avoided.  Even if I trust that

23     I can be fair and impartial, if I appear that I cannot by any stretch of

24     the imagination, that is what's important.  I do not accuse this Chamber

25     of unethical behaviour.  I do not accuse the Registry, other than the

Page 3818

 1     fact that I believe there are fiduciary duties owed to Mr. Lukic that

 2     were bypassed, including contacting counsel and allowing counsel to

 3     participate in these ongoing issues with communications in Defence

 4     preparations.  Thank you.

 5             JUDGE VAN DER WYNGAERT:  Thank you, Mr. Alarid.  So you are

 6     asking a lifting of the ex parte status of the motions -- of the filings

 7     of 13th August and 29th August.  I don't think this requires a written

 8     motion, and I think Mr. Alarid can -- will you give an oral reply now, or

 9     do you want to give a written response?

10             MR. GROOME:  Your Honour, I'm not going to require Mr. Alarid to

11     make a written filing, but I would like an opportunity to review the

12     documents and make a written filing.  The lifting of the ex parte nature

13     of the status caused quite some considerable concern among the Bosnian

14     government and also in the witness's view jeopardised his safety.  I

15     would like an opportunity before the Chamber just lifts the ex parte

16     status without -- to make the Chamber aware of whether or not there are

17     any such considerations with respect to those two documents, and I'm

18     prepared to do that in the next two days, Your Honour, so that by the end

19     of this week, the Chamber would be able to make a determination about

20     whether those -- changing the status of those documents.

21             JUDGE VAN DER WYNGAERT:  Mr. Groome, since we intend to ask

22     Mr. Alarid to file his motions by the end of this week, would it be

23     feasible for you to file your motion on the lifting of this ex parte

24     status by the end of business today?  Because we are on a tight time

25     schedule.

Page 3819

 1             MR. GROOME:  Your Honour, I will endeavor to do, so but if it

 2     requires contacting the witness or requires any contact with the

 3     government of Bosnia, that may be a difficult.

 4             JUDGE VAN DER WYNGAERT:  Yes.

 5             MR. GROOME:  But perhaps if I could undertake to do that, Your

 6     Honour, and then I will advise counsel and the legal staff of the Chamber

 7     if I'm unable to do that if that's acceptable.

 8             JUDGE VAN DER WYNGAERT:  Thank you very much.  Mr. Alarid.

 9             MR. ALARID:  And just of the issues I raised, Your Honour, I

10     would ask for one of the motions not to be due on Friday only because it

11     just involves a lot more scouring through the record and witness

12     interviews, and that is a Rule 98 position on Bikavac.  I think the fact

13     is that with us dealing with so many legal issues, i.e. potential for

14     conflict of interest and placing one's self in a witness position, the

15     appearance of prejudice of the Court, all those kinds of things that I

16     think are easier to do just on a legal, philosophical basis, but the

17     actual meat and bones, dissect the facts, I prefer to do next week.

18             JUDGE VAN DER WYNGAERT:  Okay.  We will give you until next week.

19     I would say next Wednesday by close of business.

20             MR. ALARID:  I can do that.  Thank you, Your Honour.

21             JUDGE VAN DER WYNGAERT:  So what we expect you to address this

22     week, then, is your submissions in relation to the ex parte contempt

23     proceedings, your submissions not directed to this Trial Chamber because

24     I don't think it's a matter for this Trial Chamber to decide in respect

25     to what you call irregularities at United Nations Detention Unit, so this

Page 3820

 1     is something which is not within our jurisdiction, but I would urge you

 2     to proceed with that if you wish to make submissions, to do that by the

 3     end of this week, and then you also mentioned that you were considering a

 4     request for disqualification of the Presiding Judge of this Trial

 5     Chamber, if that were really your question or your request, then I would

 6     also ask you to do that by the end of this week.

 7             MR. ALARID:  And that is why I kind of wish Judge Robinson was

 8     here, only because advisory opinions are usually discouraged in most

 9     court systems, but this is an interesting situation because with Judge

10     Robinson presiding over the Tribunal and being the avenue of appeal on

11     UNDU situations, that's the problem, is when we have got this convoluted

12     mess behind the scenes that may not even apply to every case.  It may be

13     the rarest est of instances for all I know, but the fact that this has

14     been injected into our trial and really was presented as evidence of like

15     a weakness of our case, I mean, I'm assuming Mr. Vilic came in to say,

16     this is so bad, this is why we're bringing him.  And so along those

17     lines, who do we appeal to?  It's on those bounds that we're concerned.

18             JUDGE VAN DER WYNGAERT:  We will give it due consideration and

19     look into precedence, if any, in this Tribunal.  Mr. Groome.

20             MR. GROOME:  I mean, I'm certainly not defending Judge Robinson,

21     but the one incident that came up with respect to the phone call of

22     November 18th, Judge Robinson immediately recognized that it was

23     inappropriate for him to decide that and recused himself, so again, I'm

24     not here to defend anyone else, and I'll defend the Prosecution as I see

25     fit in writing, but I must present my concern that very serious

Page 3821

 1     accusations against professionals that have long-standing reputations for

 2     integrity before not only their national jurisdictions but international

 3     jurisdictions is handled with such folly by the Defence.

 4             MR. ALARID:  And, well, I think the accusations against us were

 5     acted out with great folly, as well, especially Mr. Ivetic, who wasn't

 6     even on our team.  I want to see those filings.  Second -- no --

 7             JUDGE VAN DER WYNGAERT:  May I interrupt you.  We will take your

 8     written submissions and we will decide accordingly.  Let's close the

 9     discussion at this point, and then I understand you have no witnesses for

10     this week, and you have this general problem that you have been bringing

11     up again and again.  So I will advise you to do the following.  We will

12     not convene for the rest of this week in the absence of Judge Robinson.

13     We will reconvene next Monday, and at that moment in time, I will ask you

14     to do your opening statement then, or rather, the continuation of your

15     opening statement because you have already started giving it in July, and

16     I will ask you to call whatever witnesses you can call next week, and we

17     will take it from there.  But I have noted that you are still intending

18     to comply with the Trial Chamber's order to finish your case by 6 March.

19             MR. ALARID:  Of course.  Absolutely.  And the only point I would

20     make, just pointing Mr. Groome to the direction of where I would be

21     going, is that Mr. Groome filed all the transcripts related to the very

22     matter that Mr. -- or that Judge Robinson removed himself from, and those

23     same materials were filed as a pleading on, I believe, Friday, so that is

24     a concern.  It's just, you know, yes, Judge Robinson avoided the

25     situation, and then they come in the other way.

Page 3822

 1             JUDGE VAN DER WYNGAERT:  I will not have any more of these

 2     accusations, Mr. Alarid.  We will resume the hearing next Monday, and the

 3     Trial Chamber stands now adjourned.

 4                           --- Whereupon the hearing adjourned at 11.09 a.m.,

 5                           to be reconvened on Monday, the 15th day of

 6                           December, 2008, at 8.50 a.m.