1 Thursday, 26 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 JUDGE ROBINSON: It's Ms. Sartorio. I know the advocacy will
6 match the elevated status we will have been accorded today.
7 MS. SARTORIO: I will try not to disappoint you, Your Honour,
8 Mr. President.
9 WITNESS: GEORGE HOUGH [Resumed]
10 Cross-examination by Ms. Sartorio:
11 Q. Good afternoon, Dr. Hough.
12 A. It's Hough. Good afternoon.
13 Q. Sorry. I made that mistake and it stuck in my head ever since
14 the beginning when I made that mistake. My name is Laurie Sartorio, and
15 I'm a prosecutor here, and I'll be asking you some questions on
16 cross-examination. And since you've testified before, I'm sure you're
17 familiar with being cross-examined. Some of the questions that I'm going
18 to ask you should have either yes or no answers. And I would like you if
19 you would to answer them as concisely as possible because as you heard
20 yesterday, we're limited in our time. So could you try to do that,
22 A. I'll make my best effort.
23 Q. Thank you.
24 Now, you told us yesterday that you have been to Bosnia
25 were you there?
1 A. I was there in May of 2000 and -- I believe it was 5 or 6. I'm
2 not quite sure which.
3 Q. And what were you doing there?
4 A. I was traveling around the country on a fact-finding trip with a
5 friend, talking with citizens within Bosnia, particularly in Tuzla
7 clinic. We went to a drug and alcohol treatment programme. We went to
8 an NGO. We talked to a lot of people just trying to get a sense of what
9 was the -- in a post-conflict environment, what is the trauma recovery,
10 what resources are available, and generally how are people coping.
11 Q. Was this a project that you just took an interest in personally,
12 or were you retained by an organisation to do this?
13 A. No, it was a personal interest.
14 Q. And how long were you there?
15 A. I would say about nine to ten days.
16 Q. Okay. Now, I'm going to reverse the order of my cross, and I'm
17 going to start with talking about your report and your evaluation of
18 Mr. Lukic. Now, the first thing that I want to talk to you about is
19 related to the issue of translations and the Defence counsel acting as
20 translator. Other than Mr. Ivetic, who acted as your translator, can you
21 tell us who else was present during your interviews?
22 A. That was it.
23 Q. And at the beginning of your report and, also, you did say
24 yesterday, you shared your concerns that with Mr. Ivetic acting as a
25 translator between you and Mr. Lukic. And am I correct that everything
1 that Milan Lukic said was translated to you and vice versa? In other
2 words, Mr. Lukic does not speak any English; is that correct?
3 A. Not to my knowledge, no. A few words but not fluent.
4 Q. And I believe your words that you used yesterday were that it was
5 not the ideal circumstances. Is that right?
6 A. That's correct.
7 Q. And in fact, you didn't talk to the Defence counsel about this
8 arrangement, did you not?
9 A. We did talk about that arrangement.
10 Q. And you probably weren't happy that there wasn't an independent
12 A. They assured me this is what we had. All other resources had
13 been exhausted.
14 Q. And that's true. They did assure you that that's all you had,
15 but again, my question was were you not pleased with this arrangement?
16 A. I wasn't totally dissatisfied. I thought he did a very good job.
17 Q. Okay. But doing a good job, sir, is probably not the same as --
18 you know, you're subjective. He probably did do a good job, but that's
19 not the point, is it? The point is the objectivity that must be
20 maintained in this type of situation. Do you agree with that?
21 A. I agree with that.
22 Q. Okay. And in fact, one of the -- ethical conflicts in
23 psychology, fourth edition, are you familiar with that document?
24 A. Of fourth -- yes, I have that book.
25 Q. Okay. And are you familiar with a section on --
1 JUDGE ROBINSON: Who's that by, Ms. Sartorio?
2 MS. SARTORIO: We could bring it up, Your Honour.
3 JUDGE ROBINSON: No, why don't you just -- what's the source?
4 MS. SARTORIO: It is the Donald Bursoff. "Ethical Conflicts in
5 Psychology." It's a book on ethical conflicts in psychology, and I was
6 asking if he was familiar with it.
7 JUDGE ROBINSON: Yes. Please go ahead.
8 MS. SARTORIO:
9 Q. And in this book, in this ethical conflicts book, it said
10 problems may arise when the linguistic skills of the psychologist do not
11 match the language of the client. In such a case, the psychologist
12 referred the client to a mental health professional who is competent to
13 interact in the language of the client. If this is not possible,
14 psychologists offer the client a translator with cultural knowledge and
15 appropriate professional background. If translation is necessary,
16 psychologists do not retain the services -- do not retain the services of
17 translator para-professionals who may have a dual role with the client.
18 THE INTERPRETER: Kindly slow down when reading. Thank you.
19 MS. SARTORIO: To avoid jeopardising the validity of the
20 evaluation or the effectiveness of the intervention.
21 THE WITNESS: Yes, I reviewed those guidelines that you're
22 referring to, and again, there were really no other choices available. I
23 went through that list from most optimal to least optimal availability,
24 and this is what was available.
25 MS. SARTORIO:
1 Q. Okay. But I'm not going to ask you -- I'm not asking you to make
2 a moral judgement about Mr. Ivetic or anything, but my question to you is
3 this: You cannot rule out the fact that items could have been omitted in
4 the discussion between you and Mr. Lukic. You can't rule that out.
5 A. No, of course.
6 Q. And you really have no way of confirming one way or the other
7 whether Mr. Ivetic translated everything you said and -- to Mr. Lukic and
8 then back to you other than the tapes; is that fair to say?
9 A. That's fair to say.
10 Q. Now, did you ask for copies of the tapes after your interview?
11 A. No, I did not. I can't speak the language.
12 Q. Okay, but did you think it was important to maybe have copies of
13 the tapes for your records in case anything were to come up at a later
15 A. No, I didn't think it was important.
16 Q. Okay.
17 A. They wouldn't serve any purpose for me. I cannot speak the
18 Bosnian language.
19 Q. True, but you could give them -- you could retain an interpreter
20 back in Kansas
21 they not, if you needed it?
22 A. I suppose so.
23 Q. But you didn't think it was that important just to have a copy in
24 your office of the interviews?
25 A. No, because I knew they had a copy.
1 Q. Okay. And since your interviews, have you listened to the tapes
2 and any parts of the tapes at all?
3 A. No, I have not.
4 Q. Did you ask that the tapes be transcribed and translated?
5 A. No.
6 Q. And did you learn about the issue with the translator after you
7 arrived in The Hague
8 A. I am not exactly sure. It would have either been right before I
9 arrived or immediately thereafter. I'm not quite sure on that.
10 Q. So it was after you had flown all the way from Kansas to
11 The Hague
12 A. Well, it may have been right before, but again, it would have
13 been in very close proximity to the flight.
14 Q. Now, the second area that I want to get into, and it is in regard
15 to the interviews apart from the translation issues, is the
16 cross-cultural issues. And there's some issues that I'd like to talk to
17 you about with regard to the psychological test that you administered.
18 And I understand yesterday you personally recognised these kinds of --
19 the issues that may arise when you're giving standardised psychological
20 testing across cultures. You recognised that yesterday; correct?
21 A. Can you be more specific with your question what I recognised.
22 Q. Okay. The question was from Mr. Alarid: "Now, what relevance is
23 cultural sensitivity to exploring a forensic path with, let's say, a
24 foreign national of Bosnia
25 And you said: "Well, it's very relevant." And then you went on
1 to describe "the differences between groups can often be quite divergent,
2 so it's important to as best one can to try to understand as much as
3 possible about the culture in which you will be immersed," And you went
4 on to describe that. So you were cognizant of problems using psychology
5 tests that I presume these tests were -- they're administered in America
7 A. Correct.
8 Q. And the scores that are given, that are added up to these tests
9 are measured against Americans; right?
10 A. Not all of them. The Rorschach, for example, is used
11 cross-culturally, internationally.
12 Q. It is?
13 A. And has precedent and having been administered to Nazi war
14 criminals who were standing trial at Nuremberg.
15 Q. Okay. So can you tell us what other languages, if you know, that
16 the Rorschach -- is it translated into other languages?
17 A. It's administered -- the protocol -- or I should say the
18 instrument itself is -- has very low language base to it, so it can be
19 administered in any culture. It's a series of unstructured pictures to
20 which the patient describes what they see. So this has been done,
22 international Rorschach society that ...
23 Q. But the interpretation of what the patient says as to what he or
24 she sees in the picture, they're measured against American answers;
1 A. No, not necessarily. I mean, there are American norms, but then
2 other cultures develop their own norms. But the norms that I use and of
3 course the ones that I did apply here were Exner norms that have been
4 developed in the United States, yes, in terms of developing the scores
5 that are then reported, yeah.
6 Q. So the scores on the Rorschach tests that were taken by
7 Mr. Lukic, who is Serbian, his scores were measured against people who
8 take the tests in America
9 A. Yes.
10 Q. Now, I'd like to ask you about a --
11 MS. SARTORIO: Oh, may I admit that chapter of that last book,
12 Your Honour, in evidence on ethics?
13 JUDGE ROBINSON: Yes.
14 MS. SARTORIO: Thank you. I had the ERN if you ... 0648 ...
15 THE REGISTRAR: Exhibit P309, Your Honours.
16 MS. SARTORIO:
17 Q. And now I'm going to ask you some questions about another
18 document: Standards For Educational and Psychological Testing, put out
19 by the American Educational Research Association, American Psychological
20 Association, National Council on Measurement Education, so it's a
21 national -- you're familiar with those standards, are you?
22 A. Yes.
23 Q. You're familiar with some of the issues that are discussed in the
24 standards with regard to cross-cultural psychological testing?
25 A. Not verbatim, but I know the reference there.
1 Q. What are some of the problems, sir?
2 A. Well, some of the problems are the same ones that are referenced
3 in the document that you just referred to in terms of the American
4 Psychological Association: Sensitivity to cultural differences, norming
5 issues, and so on.
6 MS. SARTORIO: Your Honour, I'd like to admit this chapter in
8 JUDGE ROBINSON: Yes.
9 THE REGISTRAR: Exhibit P310, Your Honours.
10 MS. SARTORIO:
11 Q. Now, with regard to some cross-cultural problems or issues with
12 regard to the particular tests, you admitted yesterday that on the WASI
13 test, which is an IQ test, you said that only the non-verbal tasks were
14 administered since the verbal tasks would have been confounded by
15 language difficulties through translation. That's what -- do you recall
16 saying that?
17 A. Yes, I said that.
18 Q. So in reality, the score test is not 100 per cent accurate
19 because you could not administer the entire test.
20 A. Well, you can get a non-verbal intelligence measure from that, so
21 you don't -- you can get a verbal measurement in a non-verbal
23 Q. But the test itself, the score is one score, isn't it?
24 A. You can get a composite score, which would be the summation of
25 the verbal and the non-verbal, but what I relied on is the non-verbal.
1 Q. But you would agree with me that to have a really comprehensive
2 test, you would have to give the whole test.
3 A. Ideally, but that would assume language compatibility.
4 Q. Right, and you didn't have that here, so it couldn't be the ideal
6 A. No.
7 Q. Okay. Now, I know I mentioned the Rorschach test a minute ago,
8 but particular words that people may use may not mean the same thing from
9 one culture to the next. Do you agree with that?
10 A. That's true.
11 Q. And in fact, one of the tests that I read recently, in Sweden
12 guess they don't have cockroaches in Sweden. Have you heard this story?
13 A. No.
14 Q. So if someone cease a cockroach in another culture on the
15 Rorschach test, well, someone in Sweden would never say that because they
16 don't have cockroaches there. So what I'm trying to get at is the
17 Rorschach is really a verbal test. It depends on the culture, and what
18 the person is seeing from one culture to the next may be different, but
19 that doesn't necessarily mean that that answer from another culture is
20 offbeat; right?
21 A. Correct.
22 Q. Now, with regard to the MCMI-III, that's the Million Clinical
23 Multiaxial Inventory. Now, this is a paper-and-pencil test; is it not?
24 A. Yes.
25 Q. And again, the test is written in English?
1 A. Right.
2 Q. And so his answers had to be translated through Mr. Ivetic to
4 A. That's correct.
5 Q. And then, again, the answers to -- his answers were then compared
6 to answers from people in the United States.
7 A. Yes.
8 Q. And realistically because it is a pencil-and-paper test, it
9 cannot be said with any certainty whether or not the test was working
10 because, again, something could have been lost in translation or
11 something could have been omitted, intentionally or unintentionally. So
12 it can't be said with any certainty that the test was working.
13 A. Not with absolute certainty.
14 Q. Now, in terms of the test, now, you did go to Bosnia and you
15 spoke with a lot of people, and I did read your sojourn to Srebrenica.
16 Do you think, do you have any reason to believe, or do you think that
17 someone from rural Bosnia
18 might respond in, say, an American psychotherapy session?
19 A. Respond to what?
20 Q. To the answers to that test, provide similar responses.
21 A. I don't know.
22 Q. Now, the WASI test, we just talked about, the IQ test, I'm just
23 curious, why did you give an IQ test to Milan?
24 A. Because I think it's always important to get at least some rough
25 indicator of intelligence, but secondarily to that, the non-verbal
1 components of the test, or in even the verbal, but the non-verbal
2 especially will offer in addition a rough screen for organic problems;
3 for example, on the block design test, patients who tend to demonstrate
4 systematic problems constructing the pictures with the blocks, systematic
5 rotations or reversals with the blocks or stacking the blocks and so on,
6 there are many problems that can arise, begin to alert the examiner that
7 there may be organic problems here, and it's the same with the matrix --
8 the second non-verbal test was the matrix test. There again, with
9 spatial reasoning and so on, it can raise those questions, so it becomes
10 a rough screen, as well, so it serves two purposes.
11 Q. And you found that -- I believe you found Milan Lukic to have a
12 lower IQ than you expected?
13 A. Yes, but in a way that would not be surprising because it's --
14 we're only talking about two sub-tests as opposed to a fully administered
15 WASI in American culture, which would have 13 or 14 sub-tests, so it's an
16 extrapolation from that, but I also have to look at -- you have to look
17 at other indicators. Have you to look at his activities of daily living,
18 how he functions, his life history, how he's functioned in the world.
19 Certainly he's not mentally retarded or anywhere close to that. He's not
20 an exceptionally bright man, either, so his generation would fall
21 somewhere in the average to low-average range, and I think that's a fair
23 Q. This test also has an aspect to it of effort, so you can measure
24 how hard someone's trying on the test, can't you?
25 A. Well, not directly other than you can observe effort. If
1 somebody gives up easily, for example, they may not be putting in good
2 effort, if they're reluctant to participate and so on, but by contrast
3 this subject worked up to the best of his ability as far as I could tell.
4 He showed good task perseverance. He worked hard at the task. That
5 tells me that he was putting in effort.
6 Q. Are there other tests, though, that you can give along with the
7 IQ tests that do test for effort in conducting the IQ test?
8 A. Well, in the American culture there's one test that I sometimes
9 give. It's called the Validity Indicator Profile which has a way of
10 measuring the degree to which one is putting effort in in comparison to
11 their own capabilities. No, I did not give that.
12 Q. Okay. Any reason why you didn't?
13 A. I'm not -- I just didn't.
14 Q. Now, the Incomplete Sentence Blank Test, again, this is where
15 there's a statement and the person taking the test is asked to complete
16 the sentence; right?
17 A. Correct.
18 Q. And again, I think that you would agree that there has to be some
19 type of, you know, cultural problems with this test, again, because it's
20 based on what the person's upbringing was in life, in everything in their
22 A. Well, partly, but, you know, it does have a way of capturing
23 certain attitudes, certain values. It's a useful device.
24 Q. But in reality -- I mean, you were down in Bosnia. It's very
25 different from the US
1 A. Yes, it is.
2 Q. Now, you also gave the MCMI-III test. This test is not -- this
3 test is somewhat controversial, is it not? It's somewhat criticised.
4 A. I'm not aware of a lot of the criticism. I mean, one criticism I
5 think that's sometimes levelled is whether or not it's been given to
6 people. It's ideally designed for people who are either in early phases
7 of entering into psychotherapy or have demonstrated some kind of social
8 problem, so the assumption is that it presumes a certain kind of
9 psychopathology on the front end. I'm sure all tests have some body of
10 criticism levelled against them, so this wouldn't be any exception with
11 this test, either, but in my view, certainly the social difficulties he's
12 undergoing are -- would certainly be criterion for social difficulties.
13 I also note that in my own country, the MCMI is routinely administered in
14 correctional settings. When people are first entering into the
15 correctional system and are being screened for major problem which can
16 also determine where they will be assigned in the prison system, so it
17 does have broad utility.
18 Q. And just so you know, your system is my system too.
19 A. Yes.
20 Q. Okay. I just didn't know if you knew I was American.
21 A. I knew that.
22 Q. There is an article I'd like to ask you about. It's in the
23 Journal of Personality Assessment, 1996, written by a Paul Retzlaff, and
24 it's called: "Diagnostic Validity: Bad Test or Bad Validity Study?"
25 Are you aware of that article?
1 A. I can't say that I -- could you show it to me.
2 Q. Sure. It's 0648-8691.
3 It's not a long article. It's just not short. We're not going
4 to read the whole thing. But the author does conclude that the operating
5 characteristics of the test scales are poor in this test.
6 A. I have to say, I have not reviewed this article.
7 Q. Okay.
8 MS. SARTORIO: We'd like to have it admitted in evidence,
9 Your Honour.
10 JUDGE ROBINSON: Yes.
11 THE REGISTRAR: Exhibit P311, Your Honours.
12 MS. SARTORIO:
13 Q. Now, even -- with regard to this test, even if we accept that the
14 test was accurate given the cultural and possible translation problems,
15 didn't his -- didn't Milan Lukic's responses suggest that he had not been
16 very forthcoming?
17 A. There are what are referred to as validity scales, and he did
18 show a tendency, if I recall, to be -- as it were, to put his best foot
19 forward, to want to minimise personal short-comings. That, first of all,
20 is not uncommon in an assessment situation. Many people do want to do
21 that. People are applying for a job, for example. But second of all,
22 you do factor that in, and it was -- it did not reach the point where it
23 invalidated the test, but it certainly has to be acknowledged and
24 considered, and I did acknowledge it in the report.
25 Q. Okay. But you -- I think your words that you wanted to minimise
1 his short-coming, in your interpretive report, you said his "scores
2 reflect an effort to cover up, a wish fulfillment, not reality. They
3 respond to MCMI-III
4 than as they are." So that's a little bit stronger than he wants to
5 minimise his short-comings. It says it's an effort to cover up.
6 A. Well, I interpret it as partial cover-up and partial this is a
7 man who wants you to see him in the best possible light.
8 Q. Oh. Okay. I apologise for that. The interpretive report is
9 actually a computer report that's generated. You didn't write this?
10 A. No, that's a computer-generated report.
11 Q. Okay. And that's what the computer said, not you. So I'm sorry
12 I attributed that no to you.
13 A. I understand.
14 Q. But that's what that said, that that was an effort to cover up.
15 So I would say that that's a little bit stronger.
16 A. It's stronger.
17 Q. Now, the Skid test that you gave, that, to your knowledge, has
18 never been validated in Serbia
19 A. Not that I'm aware of.
20 Q. Now, are you aware of any tests that are translated into several
21 languages and widely used in Europe
22 A. Balkans, I'm not aware of.
23 Q. I'm sorry. I didn't know if you knew what I meant by the
24 Balkans; the former Yugoslavia
25 A. Yes, I understood. Not that I'm not aware of. There may be
1 some, but I don't know.
2 Q. Well, there is one, in fact, and it's a very widely used test,
3 the MMPI-II, Minnesota Multiphasic Personality Inventory Test, is
4 translated into Serbian, Croatian.
5 A. You know, I remember seeing that being offered in a recent
6 catalog that I received recently, but I didn't know that at the time.
7 Q. If you had, that would have been a much better test to give to
9 A. Yes, it would.
10 Q. And what about the Psychopathic Check-List Revised? Are you
11 familiar with this test?
12 A. It's actually the PCLR.
13 Q. Yes, that's right. And you're familiar with it?
14 A. Yes, I am.
15 Q. And doesn't this test actually measure someone's propensity
16 towards criminal behavior?
17 A. Well, criminal behavior but specifically the focus is on the
18 construct of the psychopathic character.
19 Q. Right. So it is kind of geared toward making some type of
20 assessment when there's a hunch that someone may have some
21 psychopathic --
22 A. Yes.
23 Q. But you didn't give this test?
24 A. No, I did not.
25 Q. Did you think about giving this test?
1 A. I thought about it, but I reasoned that since I was going to be
2 giving the SKID, in particular in any MCMI, that with the SKID I would do
3 the screening personality assessment and then I would focus - which I
4 did - specifically on the anti-social personality section, which I did.
5 And had there been data emerging from that section to suggest psychopathy
6 as defined in the PCLR, then I would have been able to zero in on that.
7 But my findings from the anti-social personality section of the SKID did
8 not demonstrate that he met criterion for that.
9 Q. And the SKID is the interview.
10 A. It's an interview that is administered -- basically, the idea is
11 to ask a series of questions regarding a number of statements, each of
12 which are tagged to various personality disorders.
13 Q. And so the questions that you use in the SKID are very precise?
14 A. Yes.
15 Q. But when the question's translated, you can't guarantee that it's
16 the same preciseness. Words are different.
17 A. That's true, but you have the option to ask the patient to
18 elaborate on their answers, and I did ask him to elaborate on any
19 questions it seemed to me were worth further investigation, and I
20 provided those answers. And review of those elaborated answers, again,
21 assured me that I'm really not seeing the anti-social personality nor the
22 more specific psychopathy construct that I was looking for, and I did
23 keep that in mind that that was something I wanted to be aware of and
24 look at.
25 Q. Okay. But how long did the SKID take?
1 A. You know, I don't recall exactly. I don't know how long it
2 actually took. It's rather lengthy, maybe two hours.
3 Q. So in two hours, you felt comfortable enough that you had made an
4 assessment that you didn't feel the need to give him a psycho -- a test
5 that's maybe testing for psychopath?
6 A. Well, obviously, I scored it later, but, no -- yeah, you're
7 right. I mean, in that during the time of administration, I was becoming
8 increasingly satisfied that I was not seeing the loading for that
9 personality disorder which I had specifically decided I was going to look
10 for, that in conjunction with the background, the developmental history,
11 and the rest of it was converging for me on the -- the answer that I'm
12 not seeing the anti-social personality or the psychopathy that I had
13 half-way expected to find.
14 Q. So from that point on, really, the interview was your focus.
15 Everything that you discussed with Mr. Lukic was -- that seemed to
16 satisfy you further as you went along, so you felt -- you didn't have to
17 give any further test, standardized test.
18 A. Well, I gave what I brought. I mean, I could have brought
19 probably a suitcase full of stuff, but I brought what I could carry and
20 what seemed to be reasonable. I had also anticipated that I - wrongly,
21 obviously - that I would have the opportunity to revisit this evaluation
22 with Mr. Lukic, the purpose of which would be to, if needed, give more
23 testing, and that's always a possibility, or to -- and I specifically
24 entertained that I would be able to focus more specifically on gaps, and
25 there were gaps, on contradictions, and there were contradictions, there
1 always are, to try to resolve them and loose threads that may have been
2 there. But up at least until the time of the war, I feel like I was able
3 to get from him a very detailed history with a view towards looking at
4 major indicators of psychiatric disturbance or emerging psychopathy or
5 anti-social personality trends and so on, and I was satisfied that I was
6 not seeing that. And it's generally the case that with these kinds of
7 diagnoses that I was looking for, that you would begin to see indicators
8 of it sometimes really quite young. And even one of the criterion that
9 needs to be met for the anti-social personality disorder specifically is
10 that there have to be indicators before the age of 15, and often there
11 are, juvenile delinquency and conduct problems and so on. That wasn't
12 evident there. So it didn't seem inconsistent that I was not finding it
13 from the assessment, either, because the background was confirming that
14 it's not evident by background -- by self-reported background history,
15 and it's not being reflected in the testing.
16 Q. Okay. And I think the operative word there, and we'll talk a
17 little bit more in detail about the interview, but it's the
18 self-reporting interview.
19 A. Yes.
20 Q. Right. And -- now, I want to pick up on a couple of things.
21 That was a very long answer, and I do agree that you had a lot of
22 materials. I'm still going through your five binders of research
23 material, and I'm very impressed. But you did say you were hoping to
24 have the opportunity to come back. What was that all about? Was that
25 part of the original discussion?
1 A. Well, only in vague terms because the understanding with the
2 attorneys is, you know, Go home, look at your data, write your report,
3 and see where you're at. And that's pretty standard operating, but my
4 practice and it seems to be pretty much routine in capital cases, and I
5 would consider this a capital equivalent, certainly, to have multiple
6 opportunities to revisit with the client for a number of reasons, one of
7 which, obviously, is to resolve contradictions, lingering un-opened
8 questions. The other is that you need multiple points of assessment.
9 You need a -- basically a kind of repeated measures, opportunity to see
10 them in various points in time. Now, I did have that to some degree
11 here. I saw him on six different occasions, but I would really classify
12 that as one large observational point in time.
13 But in my typical work in capital cases, I do have the
14 opportunity to go back after some break in time because I want to have
15 time to review the data. I want to think about it. I want to look at
16 other literature that's relevant. I want to metabolise it, so to speak,
17 and then to go back with a more focussed approach. The first time around
18 is just to get a base-line assessment of where has he been in life, what
19 are his relationships, all that. But the second time around, with a view
20 towards eventually I want to get -- ultimately, I want to get to the
21 crime scenes, because that's what everybody really wants to know, and
22 that's what I want to know. But you cannot get there right away because
23 the risk of pushing too fast on that is you lose the rapport with the
24 client, and sometimes if you push too hard or you become too driven to
25 get there, you lose the client. They will shut off, and you'll never get
1 it. So there is a technique. Have you to be -- you have to work slowly,
2 develop rapport with a view towards this is where you do want to get, and
3 that was my hope.
4 Q. Okay --
5 JUDGE ROBINSON: Judge David has a question.
6 THE WITNESS: Yes, sir.
7 JUDGE DAVID: In your report as well in your answers today, you
8 have discussed the concept of life histories.
9 THE WITNESS: Yes, sir.
10 JUDGE DAVID: And I imagine that you are aware of various types
11 of life histories.
12 THE WITNESS: Yes, sir.
13 JUDGE DAVID: And I imagine that you are aware of various types
14 of life histories. One, from a phenomenological point of view, also, you
15 said yesterday phenomenology. And are you in a clinic that Wisbanger has
16 been very important, in [indiscernible] in other phenomenologies.
17 THE WITNESS: Yes.
18 JUDGE DAVID: In a pure narrated sequence as you have done, you
19 could capture only a very limited set of meanings, especially when we are
20 doing this interview in a trans-cultural setting.
21 THE WITNESS: Yes, I agree with you, sir.
22 JUDGE DAVID: There are other life histories, and you could
23 remember the work of Sutherland, "The Confessional Thief" --
24 THE WITNESS: Is that Jacques Sutherland?
25 JUDGE DAVID: -- the achievement of Sanchez in the
1 anthropological literature in which the subject, the director of the
2 experiment is not receiving by the social participant observer. As a
3 matter of fact, Louis [phoen] accompanied that family for various times
4 of the year in the children of Sanchez, and Sutherland interacted with
5 Chuck Conway, the subject of his book in Chicago many times. So there
6 are differences between a certain narrated story and the story that this
7 Chuck is strategically at points was outside the [indiscernible] the
8 insights obtained in the interview. Is that correct?
9 THE WITNESS: That's correct. However, I'm limited as to how far
10 I can fully immerse myself into the world of the subject here. I mean,
11 in a full phenomenological investigation, you know, I might have lived in
12 his home and spent time with -- living with his family and so on. This
13 was a very circumscribed set of -- situation in which to evaluate a man.
14 He's a captive in prison --
15 JUDGE DAVID: We understand the limitation, but I just wanted to
16 propose to you that there are other types of life histories in the
17 scientific literature of anthropology and sociology, comparative
18 psychology, and so on.
19 The second component is this --
20 THE WITNESS: I'm looking for the reference. I don't seem to be
21 able to find it at the moment, but I'm aware that the American
22 psychiatrist who was assigned to the detention block to provide medical
23 and psychiatric services to -- this was during the Nuremberg trials -- to
24 the defendants wrote a series -- or actually wrote a book about that, but
25 he had literally months to spend with these men, interacting with them on
1 a daily basis, and I think I guess ideally to really get to the bottom --
2 to try to get that sense of understanding of the kind of questions
3 perhaps all of us struggle with, that's what you would need, and this was
4 certainly a first effort, but the limitations are very clear, sir.
5 JUDGE DAVID: A third question, and I will not, you know,
6 continue, but it's just for purpose of my own clarification. You have
7 discussed the problem of lack of boundaries nonetheless in times of war.
8 In your report you say that when institutions disappear, the force of law
9 -- when the force of law breaks down, and then conflicts, especially
10 ethnicity conflict takes over. You are talking about in a specific
11 situation of great ennui in the word of [indiscernible]. Is
12 that correct?
13 THE WITNESS: I think if I understand the word you use as ennui.
14 JUDGE DAVID: Ennui --
15 THE WITNESS: Yeah, yeah.
16 I think it even went beyond that kind of ennui indifference. It
17 became a ruthless climate of relentless struggle for survival. And
18 the -- one of the new ways of thinking about conflict in the world that
19 I've become aware of is that many of the conflicts now and in the future
20 will likely be along ethnocentric lines. That is, rather than state
21 versus state, it will be cultural group versus cultural group.
22 JUDGE DAVID: But there is a precaution, as you know Binswanger
23 himself said in his book, "Selective Papers," Harper & Row, page 204 in
24 New York
25 including this great conflict situation is only one side of the truth.
1 The other side is that we determine or serve those courses as our
2 destiny, which is saying that even in situation of extreme acute
3 conflict, men still have some capacity to select, to choose, which is to
4 say that over the unconscious forces that drives you to the conflict,
5 there are some who still could exercise reason. Are you agreeing with
6 this quotation? You think that everything is -- there are forces that
7 could not be stopped or redirected?
8 THE WITNESS: I think it would probably be overly reductionistic
9 to assume that behavior in the climates that we're talking about are
10 either due to -- entirely due to personality problems or entirely due to
11 the environmental disintegration problems. In reality, it's somewhere --
12 there's a mix there, and I agree there is an existential component here
13 of man is still responsible for his actions, and he cannot always control
14 the factors -- the situations that he finds himself in, but he is
15 responsible for making decisions, but -- and I will be talking about this
16 later, but we also know from research that there are certain social
17 conditions that can be so compelling that it's the exceptional man who
18 can resist not going along.
19 JUDGE DAVID: In your report, you said in relation to Milan Lukic
20 does not of a formal psychotic level under a structure conditions, he
21 will have more difficulty thinking clearly and perceiving understanding
22 people and events realistically.
23 THE WITNESS: Yes.
24 JUDGE DAVID: And in another parts of your report, you call him
25 very much a person who will be oriented from the group, not from himself,
1 that he will have a great propensity to the lines of authority.
2 THE WITNESS: Yes.
3 JUDGE DAVID: If you have to categorise him following Richmond
4 traditional personality types from the traditionally directed, inner
5 directed, and outer directed --
6 THE WITNESS: He's outer directed.
7 JUDGE DAVID: He's outer directed, which is to say that the more
8 important that his own ego will be the pressure from the group. This is
9 a characterization of reasoning. Are you saying so?
10 THE WITNESS: Yes, I am.
11 JUDGE DAVID: Okay. Thank you very much.
12 THE WITNESS: You're welcome, sir.
13 JUDGE ROBINSON: Just explain again, outer-directed.
14 THE WITNESS: My understanding of that term, sir, would be if you
15 ask the question about locus of control, that is, is a person more
16 inclined to listen to and follow the dictates of what is going on
17 themselves, inside their head, versus the dictates and the pull from
18 outside? Is a person more inclined to go along with what is socially --
19 what is socially expedient, what is socially relevant, what is going
20 around, what is the social norm versus an internal set of norms? And
21 this man, I have argued, is a man who's far more inclined to go with what
22 has been externally provided in terms of norms of behavior --
23 JUDGE ROBINSON: Thank you very much. I understand.
24 Ms. Sartorio.
25 MS. SARTORIO: Thank you.
1 Q. Well, my questions are a lot more mundane and not quite as
2 interesting and probing, but speaking of -- now I'd like to move on to
3 what you just alluded to, which is what you seem to have found from your
4 interviews with Mr. Lukic.
5 Now, your interview lasted 24 -- approximately 24 hours over a
6 6-day period?
7 A. Yes, but to be quite fair to the time-frame, that would count --
8 it wouldn't be quite that much when you start factoring in just getting
9 access to the facility and so on.
10 Q. Right.
11 A. So let's call it 19 to 20 hours, you know, in terms of actual
12 in-room time.
13 Q. And I noticed at the beginning of your report that you did tell
14 us that you shared -- you told Milan Lukic that your report might be
15 shared with others at the Tribunal, officers of the Tribunal, and you
16 also say in your report that you explained to him and he acknowledged
17 that the usual patient-examiner privilege does not exist in that
19 A. I told him that, yes.
20 Q. Okay. So he knew at the beginning of the interview that anything
21 he said could be given to the Prosecution, the judges, the Court, right?
22 A. Well, I would think that that would have been very obvious, yeah,
23 but I did tell him there's no confidentiality here.
24 Q. Okay. So when you say it would have been very obvious, I
25 think -- you told him that?
1 A. I told him I'll be writing a report, it'll go to the attorneys
2 who will share it with the officers of the Court. I may be called upon
3 to provide testimony about anything from this evaluation.
4 Q. And you also took extensive notes --
5 A. Yes, I did.
6 Q. -- during your interview. And I notice in your report, and we've
7 counted them up. You have 194 direct quotations of Milan Lukic in your
9 A. Oh, okay.
10 Q. So you did cite -- a lot of your report is just verbatim what he
11 told you.
12 A. I tried to get citations, yes.
13 Q. Did you get those down in your notes or did you go back over the
14 tapes? I believe you said --
15 A. No. No tapes. It's just my furious scribbling at the time.
16 Q. Okay.
17 Now, when you were compiling your report -- anyway, with regard
18 to the interview, I also want to say that, again, one point I didn't --
19 well, strike that. Prior to your interview, did you ask for materials to
20 review, or did the lawyers just give you materials?
21 A. I asked them to send me anything they possibly had about this man
22 that in particular -- well, in particular, that it would have any kind of
23 relevance to his background, to his psychiatric history, educational
24 records, just anything that I would always want to see in forensic
25 evaluation. I wanted to know as much about his life as possible.
1 Q. But normally when you examine or evaluate someone, do you ask
2 them to provide you with the materials, or do you research it
4 A. Well, I usually get those materials from the attorney.
5 Q. From the attorney, okay.
6 A. I mean, occasionally someone might come in and want to hand me
7 something extra, but by and large the bulk of the materials is from the
9 Q. And what would you consider important documents that you would
10 want to see in this case in evaluating Milan Lukic?
11 A. Well, I'd want to see -- well, I guess just right from the
12 beginning, if all this were available, I'd want to see school records,
13 health records, any records from psychiatric contacts, juvenile justice.
14 I'd want to see military records. I'd want to see work reports from
15 employers. I think I mentioned school, academic.
16 Q. Criminal records.
17 A. Yeah, criminal records. I'd want to see anything at all that can
18 document the kind of man and how he has functioned in various roles in
19 his life at any point in his life, but it's very difficult to often get a
20 comprehensive set of records that provide a true longitudinal picture.
21 Q. And did you receive all the -- those types of materials that you
22 just mentioned prior to your interview?
23 A. No. I received the complaint, an amended complaint, a document
24 describing command structure for the military. There was a handful of
25 small, miscellaneous items, but nothing really comprehensive. There
1 really wasn't much that I could say. This has given me at least the
2 beginnings of some picture of who the man is.
3 Q. And when you received those documents, did you contact Defence
4 counsel back and say, I need more information?
5 A. I -- I mean, I don't know how often, but I would occasionally
6 say, Give me what you've got.
7 Q. Okay. And did you get any further documents before the
9 A. I may -- I'm not sure, but I don't -- if I did, it wasn't much,
10 so I really went in -- I guess the term would be rather unvarnished.
11 There just wasn't a lot to go on at that point.
12 Q. So -- then there probably was not a lot to confront him with,
14 A. No, other than I had obviously read the indictment, so I knew the
15 magnitude of the allegations, which in itself is a major confrontational
16 point. But I didn't have the other records that would have begun to
17 flesh out more completely the life.
18 Q. But you didn't have any witness statements or any other facts --
19 when you say the allegations -- the allegations in themselves are major
20 confrontations, but that's true, but that's just a -- you know, an
21 indictment is just a bare-bones --
22 A. Yeah. I mean, to clarify, what I meant by that is that's the
23 elephant in the room. No matter what he tells me about his life, we
24 still have to get to the allegations.
25 Q. Right. Okay. And did you get to the allegations?
1 A. I made several attempts to -- in a broad way because I knew that
2 we're not going to get this fleshed out this time around, just for
3 example, to say, How do you understand this, that I have a pile of -- I
4 have a stack of allegations, and what does this mean? I mean, how can I
5 reconcile this? And the standard, I guess to nutshell, would be that's
6 not true. But that was not a surprising answer, either, first time
8 Q. Okay. And subsequent to the interview, did you do any -- did you
9 ask for anymore materials, or did you look for anymore materials to
10 corroborate what he told you or didn't tell you?
11 A. Are you saying after the interview?
12 Q. Yes.
13 A. I still didn't have much. I mean, what I was ultimately forced
14 to do was to try to look at in terms of written materials. I mean, you
15 rely on open sources, which are highly unreliable, journalistic accounts
16 and so on, and there are many; read as much as I could about the broader
17 political and historical context. I read books in that area, but all
18 that -- but what that -- it's helpful. It's useful to do that because
19 you have to dig in and try to get a sense of the broader historical
20 context, but it doesn't -- all that can tell you is really the world into
21 which this particular man had been immersed, but it doesn't tell me
22 specifically about that particular man, but that's where I had to start.
23 Q. Right. Okay. That's fair enough, but you didn't have any -- you
24 didn't get anything else from -- well, you did at some point get some
25 other documents, didn't you?
1 A. I had -- when I came for the evaluation last November, it was at
2 that time that I then had the opportunity to begin to review documents
3 relevant to the three witnesses whose records I provided an analysis of,
4 but that was while I was here. So I would evaluate Mr. Lukic in the
5 morning, and then in the afternoon spent the rest of the day looking at
6 the documents. So it was concurrent as this was going on, so I was aware
7 that here are the witnesses, here are the documents relating to those
8 witnesses, and so on.
9 Q. Okay. So you -- but all you got were the records of the three
10 witnesses that you were asked to review. You weren't given witness
11 statements, other witness statements or other witness testimony from the
13 A. No. I think I looked at a statement by the brother of VG-114,
14 and I believe that's it.
15 Q. But it was strictly what they chose to give to you, the Defence
17 A. Yes. I mean, they have volumes of records.
18 Q. Right. And --
19 A. You have to be selective. At some point, have you to decide what
20 you're going to look at.
21 Q. True, but it seems to me that if they had volumes of records, if
22 there were other documents that could have shed some light to help you in
23 your analysis, that it would have been important for you to have.
24 A. If they had been available, I would certainly have looked at
1 Q. Did you make a request for any types of documents other than what
2 you said, the school records and criminal records and things like that?
3 A. No. I requested -- I mean, and these would be standard documents
4 that I would want to look at in any evaluation. Psychiatric history,
5 certainly, but all the other things that I've enumerated, and they just
6 aren't available.
7 Q. That's what they said, they're not available?
8 A. Well, yeah.
9 Q. Okay. Did you ever ask Milan Lukic if he ever killed anyone, and
10 meaning out of the war context?
11 A. Out of the war context or within --
12 Q. Well, within the war context, but not engage in the armed
13 conflict; kill a civilian.
14 A. I did, and he told me he did not kill civilians. He did
15 acknowledge that in a combat context, he did take lives.
16 Q. Okay. Now -- so really, in reality, the bulk of your report,
17 other than the psychological test, it boils down to what Milan Lukic
18 reported to you.
19 A. Yes.
20 Q. And I think this is obvious, but given -- in light of your
21 evaluation, you're not able to say -- you're not able to aid the Court in
22 whether he has a certain personality type or doesn't have that
23 personality type, predisposed to committing crimes. You really can't say
24 that based on your evaluation?
25 A. I can say I guess in a qualified way that based upon the
1 available information I have at this point that I am reasonably confident
2 that I'm not seeing the indicators that would support a diagnosis of --
3 and there are several kinds of diagnoses that you would be expecting to
4 find for someone who would perpetrate a crime, a series of crimes like
6 Q. Okay. But again, the bulk of your data has come directly from
7 the subject himself?
8 A. Yes.
9 Q. Now, in terms of your report, did you --
10 JUDGE ROBINSON: Just a minute, please.
11 MS. SARTORIO: Thank you.
12 JUDGE ROBINSON: Is that unusual in your work, that all of the
13 data would come from the subject himself?
14 THE WITNESS: Well, there will always be contradictions, sir, but
15 what is unusual, more typically when I'm dealing with someone who's been
16 accused of serious criminal acts, and I'm talking specifically about
17 violent acts, homicide, and so on, there will be prominent indicators
18 that will be readily apparent from the developmental history when you
19 take their life history, they'll be right there in various combinations,
20 but you will see certain indicators that already tell you that they are
21 on a path towards destruction later on in life, beginning from
22 maladjustment in childhood, through school relationships as a child, and
23 then up through their adolescence, and so on. You can already begin to
24 see the markers that show in retrospect they were already moving in this
25 direction. I'm not seeing those markers in this case.
1 JUDGE ROBINSON: I'm not sure if that's what Ms. Sartorio meant.
2 Ms. Sartorio, were you trying to find out whether he was able to
3 gather information about Milan Lukic from other people?
4 MS. SARTORIO: Yes.
5 Q. I wanted to know if you got any information from any other
6 independent source other than Milan Lukic himself.
7 A. Okay. Yeah, I understand your question. And normally that is my
8 practice to do that as much as possible, to get collateral third-party
9 input, objective as possible. I considered family, for example, and the
10 Defence team does have some contact with some family members, I'm told.
11 I've never met them. I looked at that possibility and realised that what
12 I would probably get from family members would be a relatively
13 self-serving report. They would tell me all that's good and perhaps
14 obscure the negative. So I can't really rely on that. I considered
15 friends, people who might know him well, if they were available. My
16 understanding is that the people -- the two friends that he had who knew
17 him relatively well, both have been indicted, Mr. Vasiljevic, and his
18 cousin, Sredoje Lukic. I considered, well, what about policemen or
19 soldiers who knew him at the time of the conflict? My understanding is
20 that all of them are either unavailable or potentially under indictment,
21 so that wouldn't be possible. You keep going down the list. At some
22 point --
23 JUDGE ROBINSON: Doctor --
24 THE WITNESS: You're out. You're out of options.
25 JUDGE ROBINSON: Yes. If you would consider as relatively
1 self-serving reports from family members and friends, Ms. Sartorio might
2 want to ask you how much more would you consider reports from the accused
3 himself self-serving?
4 THE WITNESS: Okay. Do you want me to answer that question, sir?
5 JUDGE ROBINSON: Yes.
6 THE WITNESS: Well, obviously that's a risk, sir, that an accused
7 might be self-serving, but by and large I had no other collateral sources
8 to really turn to. Family might have been able to support early
9 development and so on, but my understanding is that the family was not in
10 the Visegrad or at least not involved with Mr. Lukic at the time, so I
11 don't think that they would have had a perspective on -- of the
12 accusations other than what they've been told. I even considered UN
13 detention personnel, but the best they would have been able to offer is
14 current adjustment, maybe current health issues, how he's adjusting to
15 gaol, but that doesn't give me the longitudinal perspective.
16 JUDGE ROBINSON: Thank you.
17 Ms. Sartorio.
18 MS. SARTORIO:
19 Q. So, Dr. Hough, really, in reality you had, I think, three
20 problems; one is the bulk of the analysis, it was self-reporting on the
21 part of Milan Lukic, that's one; and, two, his lawyer who is bound,
22 ethically bound to have his interests, best interests and his actions;
23 and then, three, you've got the translation problem. My question to you
24 with regard to the second aspect, if Milan Lukic had told -- had answered
25 a question or said that he had killed millions of Bosnian civilian
1 Muslims, in June and July of 1992, do you think his lawyer from an
2 ethical standpoint would have been able to tell you that?
3 MR. ALARID: Objection to the form of the question; objection to
4 the hypothetical.
5 JUDGE ROBINSON: The witness is an expert, and we're able to put
6 hypothetical questions to the expert.
7 THE WITNESS: If I understand your question right, would the
8 attorney been able to divulge that, had there been a disclosure of that
9 nature, a very self-indicting disclosure, that probably would have put
10 him in a conflict, but I don't know.
11 MS. SARTORIO:
12 Q. Okay. Now, in terms of your report - I keep saying that, but I
13 want to get -- did you do a draft report first and then submit it to
14 Defence counsel and then get feedback and then submit another report?
15 A. No, I did not.
16 Q. How was it that you were contacted by the Defence? Did they
17 contact you or ...
18 A. No, actually, I contacted Mr. Alarid.
19 Q. Oh. Okay. And for what purpose?
20 A. Because I was interested in becoming involved in work at the
22 Q. And do you know Mr. Alarid personally?
23 A. Not out -- no. Well, I mean outside the work in this case, no.
24 Q. So how did you -- you just decided to pick up the phone and --
25 you picked a Defence attorney or you watched on the internet or ...
1 A. I mean -- no, no. I have a good friend in Topeka, Kansas
2 Mr. Kirk Kearns [phoen], and he knew that I was interested in this kind
3 of work, and he gave me a name of a firm in Chicago, and I talked with
4 them, Mr. Ostojic, and Mr. Ostojic said, Why don't you calm Mr. Alarid?
5 He's got a case. And so I did. I went to see him, and we agreed to work
7 Q. So, did you -- when you made that first contact, did you -- so
8 you offered your services in what capacity? Did you tell him you would
9 examine his client for competency? Or what did you tell him?
10 A. Well, I told him, you know, I'm a psychologist, and this is the
11 kind of work I do, and if you need -- if there are issues that are
12 relevant, that I can provide services.
13 Q. Okay. And that's probably not the usual way that you get
14 involved in forensic cases, is it?
15 A. No, but sometimes you have to knock on a door.
16 Q. Okay. That's fair. Now, I'm going to talk about the substance
17 of the report. Part of the purpose of your report, and I think it's
18 up-front, was to obtain his "views regarding actions during the Balkan
19 war in Visegrad." Is that correct?
20 A. Yes, that's in the statement.
21 Q. And on page 11 of your report, you state: He did not feel the
22 tension of emerging war. Such tensions may have been experienced by the
23 people who lived there, but not for him." Do you remember writing that?
24 A. Yeah. Can you direct me specifically, though, so I can track
25 with you.
1 Q. Sure.
2 MR. ALARID: Can we put the report on the screen? It might
3 facilitate the Court following along as well.
4 JUDGE ROBINSON: Yes, let's do that.
5 MR. ALARID: We have it uploaded as 1D22-0735.
6 MS. SARTORIO: The end of the third paragraph -- first paragraph.
7 THE WITNESS: End of the first paragraph. Okay.
8 MS. SARTORIO:
9 Q. Page 11.
10 A. Yes, I'm with you.
11 Q. Is that page 11?
12 A. Yes.
13 Q. Okay.
14 MS. SARTORIO: Could you scroll down, please. Sorry I had it
15 typed up in my notes. It's the last sentence of the first paragraph.
16 "He did not feel the tension of emerging war. Such tensions may
17 have been experienced by the people who lived there but not for him."
18 A. Yes --
19 Q. Okay. Now I'd like to go to page 24. The third paragraph.
20 You're talking about the friends -- "once the war began, all his friends
21 began to gravitate to their respective ethnic sides. Many people heard
22 the propaganda and subsequently went to war for their own representative
24 Do you see that?
25 A. Yes.
1 Q. Okay. Now, this kind of seems contradictory to me, so which is
2 it? Did he feel the tensions, or did he not feel the tensions?
3 A. He told me that when he went to visit his family in Visegrad in
4 January that he wasn't feeling the tensions yet. He went to the store
5 run by a Muslim family; the lady was very nice to him; she saw his
6 license plates; he was from Belgrade
7 tensions were emerging, but he wasn't feeling it. This description in
9 and so on, he described how they began to diverge into their various
10 groups. I mean, the tensions were obviously there.
11 Q. But he minimised them in terms of himself?
12 A. Yes. In fact, you know, I would say I was quite surprised how
13 slow he seemed to have been to really grasp the gravity of war is coming.
14 Q. And you just believed him because that's what he told you.
15 A. Well, his descriptions were consistent across time, and he sort
16 of laughed at himself, you know: How could I have been so naive?
17 Q. Okay. Another question to you is when he talked to you about the
18 White Eagles, I noticed that yesterday you were testifying about that,
19 and it seems like he described them in quite some detail, that the White
20 Eagles consisted of approximately 50 to 80 individuals, and he knew their
21 commander, and on and on. Did you ask hm him how he knew so much about
22 the White Eagles?
23 A. No, I didn't ask him that.
24 Q. Did you know that that was an allegation in the case, that he's a
25 member or works in groups that have committed crimes with the
1 White Eagles?
2 A. I'm aware of that.
3 Q. Were you aware of it at the time you interviewed him?
4 A. Yes.
5 Q. So did you probe late bit more?
6 MR. ALARID: And I would object to the question as misstating the
7 evidence. He was alleged to be the leader of the White Eagles.
8 MS. SARTORIO: Oh, excuse me. Yes. I stand corrected.
9 Q. But did you probe that further because it is a part of the case.
10 Did you know that before the case?
11 A. I knew it before the case.
12 Q. And so when you start talking about this, did you sort of hone in
13 on this?
14 A. No, not at that point. I'm not sure why other than I may have
15 been saving it for a return back to the topic, but I wanted to get kind
16 of a base-line description from what he was telling me about the way
17 things were.
18 Q. Okay. Now, you also say in your report, and again, after the age
19 of 15 the only legal problems he has had are the current one related to
20 the ICTY. Do you remember saying that, or do you want to find that?
21 A. Yes. No, I remember. That's what he told me.
22 Q. Do you still -- has that changed?
23 A. In terms of legal problems before the age of 15?
24 Q. After the age. It says after the age.
25 A. Oh, I'm sorry. That must be a mistype. I apologise to the
1 Court. It should read before.
2 Q. Okay.
3 A. Because I'm veering specifically on the anti-social personality
5 Q. So you need to make that correction then on the record that that
6 it's supposed to be before the age of 15.
7 A. Can you tell me what page that's on, please.
8 Q. Page 8.
9 A. Page 8.
10 Q. The second paragraph. The second sentence in the second
12 A. Well, let me correct, then. No, that would be correct. After
13 the age of 15.
14 JUDGE VAN DEN WYNGAERT: Excuse me, Ms. Sartorio, while you're
15 looking things up. I'm a bit at a loss, and I'm sorry because I wasn't
16 able to be present yesterday, but I'm wondering where this is leading us
17 to, this part of the evidence, which I think is very interesting from an
18 academic point of view, but what does it help? Does it now have any
19 relevance for us to assess the criminal responsibility of the accused?
20 Does it say something about the mens rea or -- I'm just trying to
21 understand why we need this evidence and whether we should pursue with
22 it. Could the parties help me with this? Mr. Alarid, perhaps?
23 MR. ALARID: I'd prefer not to comment on where the Prosecution
24 is going on this.
25 JUDGE VAN DEN WYNGAERT: It's your witness. You brought the
1 evidence, so I would wish to know from you why you were bringing this
2 evidence and what the relevance of it is.
3 MR. ALARID: The relevance is within the confines. I understand
4 the Prosecution's objections, and it's always an issue of weight. But
5 within the confines of what this expert was able to achieve in the
6 psychoanalytical setting, with all those strengths and weaknesses
7 conceded, it simply is to assess this human being, and I think he's done
8 so, whether it's from a leadership versus ordinary man perspective,
9 whether it's from an intelligence to an above-intelligence perspective.
10 And also in hopes of giving you a little bit more of a cultural
11 perspective of this individual, where he came from, what were the social
12 factors that were involved in who he was. I mean, we've seen some
13 pictures of him as a young man, but very little to be able to tie that
14 together to help you assess because I think it is important to asses this
15 individual's capacity for leadership, his intelligence because the
16 allegations at the front side were so specific. He wasn't alleged to be
17 a member of the White Eagles. He was alleged to be the leader of the
18 White Eagles, so much so that his 8-year-senior cousin, a formal police
19 officer, would fall into rank step behind him, and that's how this case
20 was originally pled. Now the theories of liability may have changed over
21 time, but as alleged, that was important, and I think that that's what we
22 were attempting to accomplish and differentiate from the theory presented
23 by the Prosecution.
24 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Alarid, but with all
25 respect I think we're spending a lot of time on this, and we've got your
1 message, and I would really wish to proceed in a faster space.
2 MS. SARTORIO: Well -- okay, Your Honour. The first part with
3 regard to --
4 JUDGE VAN DEN WYNGAERT: Mr. Cepic is on his feet.
5 MR. CEPIC: I apologise, Your Honour, but I have to react related
6 to those allegations, which I just heard from my friend Mr. Alarid
7 related to the 8-years-older cousin. Thank you very much, just for the
8 record. Nothing further. Thank you very much.
9 MS. SARTORIO: Your Honour, I maybe have 10, 15 minutes more on
10 the report. I mean, I feel that if the Court's going to accept the
11 report in evidence, then we have to do our job and put in what we feel
12 the report -- the issues with the report, so I realise it's not -- it
13 goes to sentencing, perhaps, mitigation.
14 JUDGE VAN DEN WYNGAERT: That's the only thing I can see in it.
15 MS. SARTORIO: Right.
16 JUDGE VAN DEN WYNGAERT: But to assess the mens rea, I don't
17 think this is going to help us very much. So if you could please
18 restrict yourself to the minimum. Thank you.
19 MS. SARTORIO: Okay. I will. Okay.
20 THE WITNESS: Before you proceed, may I -- because you had asked
21 me about the age 15, I just want to clarify. After having looked at the
22 document, it would be correct as it stands, so I would apologise for the
24 MS. SARTORIO:
25 Q. Okay. So it is after the age of 15.
1 A. Yes. My apologies.
2 Q. No problem.
3 Now, in the group of materials, you noticed that there was a
4 judgement against Milan Lukic and three other perpetrators, and the
5 judgement says that they tortured violated life and person, murdered
6 civilian persons, and it's about stopping a bus carrying Bosnian Muslim
7 men, ordering them at gun-point to get off the bus, and then proceeding
8 to abuse them physically, beating them with wooden sticks and then
9 finally killing them. He was convicted of that crime, and in the
10 materials you gave to us the other evening, I noticed you have the
12 A. Okay. You know, I remember us talking about the bus incident. I
13 don't remember having reviewed that document, but if it's in my file, I
14 obviously did.
15 Q. Well --
16 MS. SARTORIO: I'd like to admit the Severin judgement into
17 evidence, Your Honour. It directly contradicts a report of the expert,
18 and it was received in response to an RFA, and I have the RFA here int he
19 response. It's perfectly -- it's an authentic document.
20 JUDGE ROBINSON: What's the Severin judgement?
21 MR. ALARID: Your Honour --
22 JUDGE ROBINSON: Mr. Alarid.
23 MR. ALARID: The Severin judgement was a judgement that was
24 obtained in absentia while Mr. Lukic was out of the country and also
25 under indictment for this particular charge. It was never defended; he
1 was never arrested on it. And so from the standpoint of his
2 participating in the legal process, I understand the point the
3 Prosecution's making, but attempt to admit the judgement through this
4 witness is improper, and it's an improper attempt at introducing
5 character evidence in showing of the consistency and pattern of conduct
6 that is not supported by the evidence. We would have to have an
7 additional trial within a trial to explore the Severin issue, and that
8 would be a waste of the Court's time considering that we are focussing on
9 the specific dates in June of 1992 as opposed to anything that was
10 obtained in absentia without the benefit legal counsel defending him and
11 with this person being present, and he does have a right to request to
12 retry that case in Serbia
13 JUDGE ROBINSON: Ms. Sartorio.
14 MS. SARTORIO: Your Honour, the judgement speaks for itself. You
15 can give it whatever weight you want, but it does contradict the report,
16 and Mr. Hough had this in his possession, and it didn't factor into his
17 report, and I think that it speaks for itself in that sense.
18 MR. ALARID: And then she can cross him with that and for the
19 implications that that has to his report, but why do we need this
20 extraneous material that has no relevance on the charges today?
21 MS. SARTORIO: Well --
22 JUDGE ROBINSON: Mr. Hough had the judgement?
23 MS. SARTORIO: Yes.
24 JUDGE ROBINSON: That's fine. We'll admit it.
25 MS. SARTORIO: Thank you.
1 THE REGISTRAR: Exhibit P312, Your Honours.
2 MS. SARTORIO:
3 Q. And now, there's just a couple more.
4 MS. SARTORIO: 0644-6149, please. Could the court usher please
5 bring that up on the screen.
6 Q. And while that's coming up on the screen, on page 31 of your
7 report, and that's the whole subject of your report, you drew the
8 conclusion that Milan Lukic is quote "clearly a follower, not a leader."
9 That's your conclusion; right?
10 A. Yes.
11 Q. Okay. And as soon as this document ...
12 MS. SARTORIO: And could we go to the second page of the report.
13 Well, actually, go to the first page. I apologise.
14 Q. Now, sir, do you see that this is a record of interview with the
15 accused and then -- you'll see down on the right, it says Milan Lukic.
16 A. Could you direct me with the scroller?
17 Q. Yes.
18 MS. SARTORIO: Could you just highlight the top portion.
19 Q. On 30 October 1992
20 with Milan
21 A. Yes, I see it.
22 Q. Okay.
23 MS. SARTORIO: Now, could we go to the second page, please.
24 Sorry, page 3. I apologise. Page 3. Sorry, Your Honours. Page 3.
25 Q. Now, it's a long paragraph, but I'd like you to read, and I could
1 read it out loud, but I would like to admit this document in evidence.
2 Would you read the paragraph, sir? "I finally returned from Germany
3 A. Okay. "I finally returned from Germany, or rather, from
5 Serbs and the Muslims in Bosnia
6 Defence Staff in order to participate in Serbian combat operations for
7 the liberation of Visegrad. I have been engaged continually in combat
8 activities ever since.
9 "I was a member of the Obrenovac Detachment, which is a special
10 unit attached to the Visegrad SUP. Since the group was composed of
11 people from the outskirts of Visegrad who mostly lived in Serbia, we had
12 special training. We were later attached to the Visegrad Territorial
13 Defence as a company of volunteer guards called Osvetnik/avenger. I was
14 and still am the commander of this detachment. Usually, the detachment
15 had 25 to 50 members, but the composition fluctuated, as some members
16 left and new ones joined."
17 That's the paragraph.
18 Q. Now, does the fact that he says in that recorded interview here
19 he was the commander, doesn't that suggest to you a leadership position
20 and not a follower?
21 A. Well, you know, I wondered about that. Was that document signed?
22 Q. Well, you have the English version and --
23 A. Okay. That's what he told the people who were interrogating him
24 at the time.
25 Q. But you didn't include that in your report?
1 A. Actually, I hadn't read that document until after.
2 Q. Okay. But after you read it, you didn't amend the report?
3 A. No.
4 Q. Okay.
5 MS. SARTORIO: Your Honours, I'd like to have this document
6 admitted in evidence, please.
7 MR. ALARID: I believe it was admitted --
8 MS. SARTORIO: Not this one. I don't believe it was.
9 MR. ALARID: This was admitted in the OTP case when the
10 officer --
11 MS. SARTORIO: No, that's another one. We're getting to that
13 MR. ALARID: Okay.
14 MS. SARTORIO: I believe --
15 JUDGE ROBINSON: Very well. We'll admit it. If we discover
16 we've already admitted it, then we'll deal with that.
17 MS. SARTORIO: My case manager with check.
18 THE REGISTRAR: It's admitted as Exhibit P313, Your Honours.
19 MS. SARTORIO: Could the court officer please bring up 0422-4603.
20 JUDGE ROBINSON: Now, Ms. Sartorio, in the document we have just
21 admitted --
22 MS. SARTORIO: Yes.
23 JUDGE ROBINSON: -- what it said is that he was and still is the
24 commander of a detachment. That's of a military unit.
25 MS. SARTORIO: Yes. This document right here. Yes.
1 JUDGE ROBINSON: Yes, the one we just admitted.
2 MS. SARTORIO: Yes, that's what he said. It was his -- it was an
3 interview of Milan Lukic where he said he was the commander.
4 JUDGE ROBINSON: And you would want to say that that
5 contradicts --
6 MS. SARTORIO: Yes.
7 JUDGE ROBINSON: -- the leadership claim?
8 MS. SARTORIO: Yes, as well as -- yes. And the same --
9 JUDGE ROBINSON: I don't believe that that is how I understand
10 the argument in the indictment that he's a leader, a leader of a
11 paramilitary group.
12 MS. SARTORIO: Well, certainly, he wasn't -- our position is that
13 he was not a follower; he was not a passive follower, which I think is
14 the conclusion reached, so we do dispute that.
15 JUDGE ROBINSON: I believe that they are different qualities
16 entirely, being a commander of a military detachment and an allegation
17 that one has leadership attributes based specifically on a claim that one
18 is a leader of a paramilitary group.
19 MS. SARTORIO: Well --
20 JUDGE ROBINSON: I believe the army factor, I believe the army
21 factor makes that claim invalid, but the fact that you are a commander of
22 a contingent to my mind doesn't necessarily mean that you have leadership
23 attributes. You may, I suppose.
24 MS. SARTORIO: Right, but I think also the point is that
25 Dr. Hough did admit to reading this document, and he did not -- it's not
1 a criticism of the doctor. He wanted to see the accused again, but he
2 did not confront the accused with that and ask him about it. And I think
3 that that goes to the credibility of the report issue.
4 JUDGE ROBINSON: Yes. Yes.
5 MS. SARTORIO: Okay.
6 Q. The document in front of us, as you can see, it's a military
7 certificate, and it's a certification that Milan Lukic is the commander
8 of a sabotage and Reconnaissance group. Now, I would submit that a
9 commander of this kind of special unit group particularly would have
10 qualities of a leader and not a follower. This seems like a type of
11 special forces group.
12 MR. ALARID: Objection, assumes facts not in evidence.
13 MS. SARTORIO: We'd like this admitted, Your Honours.
14 JUDGE ROBINSON: Yes, we'll admit it. Let move on quickly.
15 THE REGISTRAR: Exhibit P314, Your Honours.
16 MS. SARTORIO:
17 Q. So, Dr. Hough, you would agree with me, though, that, these
18 documents may appear to contradict what Milan Lukic told you.
19 A. Well, on the second document, the certificate, I haven't seen
20 that document before. I haven't studied it or tried to put it into
21 context, so the answer I would give you would be qualified, but on the
22 face of it, it would seem to contradict that, but it also supports in my
23 understanding his claim that he had always been within the command
24 structure of the military and not outside of it. The paramilitary would
25 be -- my understanding would be outside the command structure, the more
1 of a rogue element.
2 Q. But you're not sure because you -- did you study --
3 A. Did I study this document? It's the first time I've seen it.
4 Q. Right, but you didn't study the military structure of the Bosnian
5 and Serbian Army?
6 A. I looked at it, but it was pretty complicated, so I don't
7 understand it.
8 Q. I agree. I totally with you. Okay.
9 Just one last point. There's a part of your report -- well, you
10 mention that he said he was the president of the veteran's association
11 and that all five local commanders voted him in, and that there were
12 thousands of soldiers scheduled to vote.
13 A. That's what they tell me, or a thousand.
14 Q. Again, to me, this appears to be an inconsistency. You're the
15 president of a thousand-man organisation. Is that the quality of leader
16 or a follower?
17 A. Well, what he told me is actually he'd been nominated to be
18 president but he declined and conferred that leadership position to
19 someone who was an attorney, that he'd been nominated because of his
20 actions as a soldier. That he'd been recognised as a pretty heroic
22 Q. But I don't believe you said that in your report that he was
23 nominated and stepped down. I believe you said he was elected. I have a
24 direct quote.
25 A. Okay. What page?
1 Q. Page 23.
2 A. Okay.
3 Q. So it's the second paragraph under section 5, After the War.
4 MS. SARTORIO: This is my last question, Your Honours, on this
6 Q. So you said he was --
7 A. My reading is that he'd been offered the position. He'd turned
8 it down.
9 Q. Oh, I see. I'm sorry. I do apologise. That's next.
10 MS. SARTORIO: Okay. All right. Is it time for the break?
11 JUDGE ROBINSON: Yes, it is. We'll adjourn.
12 --- Recess taken at 3.51 p.m.
13 --- On resuming at 4.12 p.m.
14 JUDGE ROBINSON: I'll take this opportunity to deal with some
15 administrative matters. First, Mr. Alarid, your request for
16 Marie O'Leary to examine Cliff Jenkins, can you tell us about her
18 MR. ALARID: Yes, Your Honour. She's a licensed attorney,
19 licensed since 2006.
20 JUDGE ROBINSON: Where?
21 MR. ALARID: In Minnesota, to practice before the bar in
23 came out here and engrained herself in the system, of which she's spent
24 the lion's share of her career, in the support roles of legal assistant.
25 She was also the head of the ADC
1 then transferred to -- she's currently assigned to the Djordjevic case,
2 and that's why she had to leave our case because of the time constraints
3 and the start-up of Djordjevic, in which she had previously engaged, but
4 we had thought that this would be over before trial actually started, and
5 that's why you haven't seen her for the last month and a half or so.
6 JUDGE ROBINSON: I understand that a similar procedure was
7 followed in the Milutinovic case.
8 Mr. Ivetic.
9 MR. IVETIC: That is correct, Your Honour. I had one of my legal
10 assistants Mr. Boris Zorko lead one of our Defence witnesses, and I
11 believe Mr. Ackerman had Ms. Nadia Zed cross-examine one of the OTP
12 witnesses in that proceeding.
13 JUDGE ROBINSON: We're going to allow it in the exceptional
14 circumstances. We want to ensure that you have as much time as possible,
15 Mr. Alarid.
16 MR. ALARID: To be honest, this would give me some time to do
17 some housekeeping because a lot of things have come down, and there's a
18 lot of short-term deadlines that we're trying to keep -- including trying
19 to get our subpoena witnesses here for next week.
20 JUDGE ROBINSON: For example, the Trial Chamber would hope that
21 it would give you enough time to proof Milan Lukic for Monday.
22 MR. ALARID: To begin putting him on?
23 JUDGE ROBINSON: Yes, to begin.
24 MR. ALARID: Well, we don't -- to be honest, Your Honour -- and I
25 wish it were different. In my town, you can go visit in the gaol on the
1 weaken. Here, you cannot, and it's against the UNDU policy, so with
2 tomorrow's double session and Mr. Ivetic being my sole source to the
3 language, we're probably pretty much obligated to be here, even with
4 Marie conducting the exam, so I wouldn't be able to give you that kind of
5 quality proofing by Monday, Your Honour. I think that would be
6 unrealistic, definitely unrealistic.
7 [Trial Chamber and legal officer confer]
8 JUDGE ROBINSON: In that case, who would you have on Monday?
9 MR. ALARID: Right now, Your Honour, two -- we have confirmed two
10 of the subpoena witnesses, and we're trying to facilitate getting them
11 here, but interesting, the VWS says we have to submit the WIF information
12 for witnesses that really are subpoenas, so they're not under our
13 umbrella of influence in any way, shape, or form. So we're trying to
14 figure out how to get them here in short order. But other than that,
15 Your Honour, with Mr. Jenkins concluding and absent Mr. Lukic, we would
16 not have witness for Monday, and --
17 JUDGE ROBINSON: Seems a terrible waste.
18 MR. ALARID: And potentially we could close our case.
19 JUDGE ROBINSON: Or you could close your case on Monday?
20 MR. ALARID: I mean, that's a possibility without -- well, no,
21 that's not true. We need the subpoenas to come. We do need those two
22 witnesses that we've got confirmation on, but I'm concerned because
23 there's really not a system in place for Defence to bring subpoena
24 witnesses. It's just a void, if you will, in consideration, and so we're
25 trying to bridge that gap.
1 JUDGE ROBINSON: With regard to Marie O'Leary, I should tell you
2 that my -- you will be contacted in relation to the power of attorney
3 that's to be provided. Somebody will be contact to give you assistance
4 in that regard.
5 MR. ALARID: Thank you, Your Honour.
6 JUDGE ROBINSON: Now I must also say that the Chamber is making
7 arrangements to sit full days, morning and afternoon from now until the
8 end of the trial, subject, of course, to minor possible changes. And of
9 course, you know that there is no hearing on Tuesday, the 31st of March.
10 MR. ALARID: Hillary's in town, I take it. That's what I've
12 JUDGE ROBINSON: Yes.
13 Milan Lukic's case will therefore end on Friday, the 3rd of
14 April, if he testifies. If he does not, then this may be moved up to
15 Wednesday or Thursday. That time-frame, of course, will allow for
16 consideration of the pending motion to amend the Defence witness list
17 plus the two confirmed subpoena witnesses. And then, rebuttal and
18 rejoinder, Monday the 6th to Wednesday the 8th of April. Chamber
19 witnesses and housekeeping matters, Thursday the 9th of April. Filing of
20 final briefs by all parties, Wednesday the 15th of April. The closing
21 arguments are set for the 21st of April. And pursuant to the order of
22 the 11th of March, each party has been allotted one hour unless otherwise
23 determined by the Chamber.
24 Now, Mr. Groome, yesterday I had said to you, get Dr. Will Fagel.
25 But on further reflection, it seems to us that the better course is only
1 to hear him in your rebuttal case proper because he is to testify about
2 five documents allegedly signed by Risto Perisic, and that's a subpoena
3 witness. We are not certain whether he's coming. Then a map of the
4 Drina River
5 is in evidence, and the map will only be admitted if a particular witness
6 testifies, so it would seem to be waste of the Court's time to hear Fagel
7 before the documents are admitted. So I trust that will not be a severe
8 inconvenience for you, Mr. Groome.
9 MR. GROOME: I will contact him, Your Honour, he's given me some
10 available dates, but I need to check back now that I have these new
11 dates, Your Honour.
12 JUDGE ROBINSON: Now, the Chamber will have to request expedited
13 responses to pending motions, and I set them out as follows. Let us deal
14 with this in private session.
15 [Private session]
11 Page 6382 redacted. Private session.
13 [Open session]
14 THE REGISTRAR: We're in open session, Your Honours.
15 JUDGE ROBINSON: Ms. Sartorio, my colleague is urging speed.
16 MS. SARTORIO: Yes, Your Honour. I will endeavor to speed along.
17 I have fewer questions on this part than the first part.
18 [The witness takes the stand]
19 MS. SARTORIO:
20 Q. So, Dr. Hough, now I'd like to turn your attention to the three
21 letters that you wrote to Mr. Alarid about three of the Prosecution
22 witnesses. That's the -- it will be -- the remaining questions of you
23 will be based on these letters. And again, yesterday you said you had
24 never met or spoken with any of the witnesses; correct?
25 A. That's correct.
1 Q. Right. And therefore, it follows that you have never had
2 evaluation of them in order to do a proper diagnosis.
3 A. That's correct.
4 Q. Okay. So you're not really able to say to the judges to any
5 standard that you are held to as an expert in court that these women are
6 suffering from post-traumatic stress syndrome?
7 A. No, although I do acknowledge that VG-063 informs from records
8 that she has been diagnosed elsewhere, but, no, not form -- I can't
9 diagnose directly, no.
10 Q. Okay. Well, we will get into that because I think that that's --
11 well, okay. We'll get into that in a minute. But the fact that someone
12 says they might be into psychiatric care, or may agree to a suggestion
13 they have post-traumatic stress syndrome, you really can't draw any
14 conclusions from that.
15 A. That's correct.
16 Q. And obviously, you're not able to offer any scientific proof that
17 any of these women are suffering from a disease that would give them a
18 faulty memory?
19 A. No.
20 Q. And even if you did think, even if we did agree that they were
21 suffering from PTSD, you still can't say whether they have a faulty
23 A. No, and I agree. It doesn't follow that even having that
24 diagnosis necessarily means have you a faulty memory.
25 Q. Okay. And PTSD, and I've learned a lot about that in the last
1 couple of weeks, but it is a specific diagnosis of the DSM, the diagnosis
2 book that doctors and psychologists and psychiatrists are held to in the
3 US; right?
4 A. That's right.
5 Q. They are probably elsewhere.
6 And there are specific symptoms of PTSD, and one is flash-backs;
8 A. That's correct.
9 Q. So the typical example we hear about is the person in the Vietnam
10 war where they all of a sudden are in the middle of the room, they're
11 doing nothing and then they get a flash-back of something that happened
12 on the combat field.
13 A. Yes.
14 Q. Okay. From the records that you reviewed of all these of these
15 witnesses, did you see anything at all to indicate that any of these
16 women had flashbacks?
17 A. No. However, let me qualify the diagnostic issue, which is that
18 flash-backs are, yes, typically observed but not always. There are a
19 number of ways in which intrusive ideas or images can be experienced, but
20 flash-backs is certainly common.
21 Q. Okay. So for PTSD, have you to have something that we just
22 talked about. There has to be an avoidance behavior, right, some time of
23 avoidance behavior, a numbing, and there's other buzz words that are used
24 in the diagnosis.
25 A. Yes. Yes.
1 Q. So really, you can't -- from just looking at the statements and
2 the testimony, you can't diagnose whether these women have any of these
4 A. No.
5 Q. Now, would you agree with me that there's no scientific proof
6 that post-traumatic stress syndrome or trauma would cause a person to
7 report facts inaccurately?
8 A. No, there's nothing from that diagnosis to compel a claim that
9 there would be inaccurate reports. It does happen, but it doesn't follow
10 that if this diagnosis then automatically there will be inaccurate
12 Q. And in fact -- and I'm going to talk about this in a few minutes,
13 but there's a difference between the word inaccurate and inconsistencies;
15 A. Yes.
16 Q. Right. So if anything, that there's -- there are articles out
17 there, and people have opined, that there might be some sort of
18 association between severe trauma and inconsistencies.
19 A. Yes.
20 Q. Okay. But nothing that you know of in terms of measuring
22 A. No, other than general observations and statements, but in terms
23 of true measurement, no.
24 Q. Okay. And it's true that a particular person who has been
25 diagnosed, for instance, with PTSD could have a perfectly normal memory.
1 A. That's possible.
2 Q. Now there are also -- you would agree that there's studies that
3 show that some traumatised individuals often have an increase of
4 information over time, increase of information over time, which could
5 also explain for some further details given over time, such as rape
7 A. Yes, sometimes there is an increasion of new information that
8 comes forward. What have you to be careful about, though, is the
9 question becomes how accurate is that information, and have you to work
10 very hard to corroborate that.
11 Q. Right. And just so we're clear here, you're certainly not
12 suggesting to this Court that persons who've been diagnosed with
13 post-traumatic stress syndrome or severe trauma or have suffered trauma,
14 would not be reliable witnesses in a court of law, and you're not
15 suggesting that, are you?
16 A. No, I'm not making that categorical claim, that they cannot be
17 used as witnesses. I do offer the caveat that it's a cautionary tale,
18 that you need to be alert to the possibility that they can be -- it's
19 more difficult to follow them, and you have to listen more carefully to
21 Q. Okay. That's fair enough. So I think we all know, and you would
22 agree with me that when it comes to witness credibility issues and
23 reliability, that is strictly for the judges or, in America, the juries.
24 A. Absolutely.
25 Q. That's why they're trained to hear cases.
1 A. Yes.
2 Q. So I want to talk a little bit about inconsistencies because it
3 actually is interesting, but people can describe events differently,
4 right, using different words on different occasions, even non-traumatised
6 A. Yes.
7 Q. And -- so when telling a story differently, it doesn't mean that
8 it false or inaccurate on any occasion.
9 A. No.
10 Q. And in terms of consistency, doesn't consistency in answers
11 depend on a lot of different factors, such as who's asking the questions,
12 how the questions are asked, the typical setting, et cetera?
13 A. Those are influencing factors, yes.
14 Q. And as long as the thread, I think was that the word you used,
15 thread, yesterday?
16 A. Thread. Yeah.
17 Q. As long as the thread is consistent throughout the statement,
18 then that is important, right?
19 A. Yes.
20 Q. But the peripheral details, as they're referred to, can be
21 different when different questions are asked. If a question is asked
22 differently, the peripheral details might change --
23 A. Yes.
24 Q. -- colour of eyes, colour of hair -- okay. In this particular --
25 in this context, we have, as you know, multiple statements from the
1 witnesses, testimony from one to two different trials, and you have
2 different people asking the questions, and you also have different
3 interpreters, so you also have to factor in, don't you, that an
4 interpreter may interpret something differently.
5 A. Yes.
6 Q. Okay. And in fact, we have had debates in this courtroom about
7 interpretation problems. Even what we're staying gets misinterpreted on
8 the record, and there has to be checks and corrections made. So if it
9 happens here, it would happen out there when someone is being interviewed
10 at their house, for instance.
11 A. Yes.
12 Q. It would also depend a lot on how the statement's being recorded,
13 if someone's taking notes, if someone's writing down verbatim, someone is
14 recording it, or someone is typing it, that would all make a difference
15 in how the statement is written; right?
16 A. Yes.
17 Q. And there also is the question about consistency and
18 inconsistency. Something may not be an inconsistency at all. It just
19 may be additional information. In other words, someone doesn't mention
20 at one time that someone is present but mentions it another time, that is
21 not necessarily an inconsistency, is it?
22 A. No, but it depends on the context in which the new information is
23 being introduced. I think you do have to evaluate that.
24 Q. Well, couldn't it also be, for instance, if I'm talking about
25 70 people in a room and I name everybody I can remember, but then the
1 second time I'm asked by the person, Well, was so and so there? Would
2 that jog my memory? Yes, that person was there. I didn't say it the
3 first time because I can't remember 70 names, but I said it the second
4 time because the person specifically asked me. So that can account for
5 changes over time, can't it, different statements?
6 A. Yes.
7 Q. And that's not an inconsistency, sit?
8 A. No.
9 Q. Now, you talked about a lot of studies yesterday, just one little
10 thing, you did not include all the studies you mentioned in your report
11 of these three women. Did you know you didn't do that?
12 A. You mean in the literature file?
13 Q. Yes. Well, in fact, most of them you didn't reference. When you
14 talked about Kraft and Dember and Reuben [phoen] and all of the rest of
15 them, there was no reference in your report to any of those. I was quite
16 surprised yesterday when you mention those because they weren't in your
18 A. There's no reference to -- I want to track with you here.
19 Q. Sure.
20 A. What's missing?
21 Q. No reference to the Robert Kraft study or William Dember study,
22 Karen Nelson study -- you went down a litany of studies that you relied
23 upon when writing your report, but we didn't know about those, so ...
24 A. Well, I mean, they were listed in the folder with the various
25 studies I looked at. I mean, I looked at those and others. Some of them
1 I read but didn't necessarily incorporate into a report.
2 Q. With all of these studies that you've read, aren't there a lot of
3 studies that show, in fact, that memory for the gist of an event is
4 generally quite good, but it's the fuzzy details, the peripheral details
5 that might be less clear.
6 A. Often that's the case, but it also depends on the way in which
7 the memory was initially encoded. If it was encoded under high stress
8 conditions, such as a traumatic event, then you would anticipate a
9 different encoding process and a different retrieval process than you
10 might anticipate under normal everyday circumstances. The anxiety can
11 have its effect.
12 Q. Now, in terms of accuracy, Dr. Hough, isn't it almost impossible
13 to test someone's memory for accuracy?
14 A. Well, there are memory tests, obviously, and you can assess
15 various kinds of memory and get aggregate summations regarding people's
16 memory capacity. In terms of memory accuracy, I'm not sure of a good way
17 to do that, exactly.
18 Q. Right, and I think it's because -- I mean, for instance, take the
20 can't test their memory because nobody was there.
21 A. Right.
22 Q. Right. Okay. The same way we can't accurately test the
23 memory -- you can't test the memory of traumatised victims for accuracy
24 because you didn't go through the trauma. You weren't there.
25 A. That's true.
1 Q. So you're not able to -- no psychologist can offer an opinion
2 about whether a particular individual is accurate in what they have
4 A. That's correct. You can comment upon whether there's consistency
5 across time and so on, but in terms of the accuracy of the recollection,
6 that's an internal -- that's an internal world that I don't have access
8 Q. Now, in terms of eye-witness accuracy, you'd agree with me,
9 wouldn't you, that most of the studies with regard to eye-witness
10 identification have all been about line-ups or photo spreads or that type
11 of controlled study.
12 A. That's most of it, yeah.
13 Q. Right. And they're usually studies of college students who are
14 called in and have watched a film -- an incident on a film and they're
15 asked to pick out someone from the line-up.
16 A. Yes.
17 Q. And do you know of any study where people were asked to recognise
18 someone whom they'd known for years?
19 A. Not that I'm aware of, no.
20 Q. Do you know of any research that suggests that people cannot
21 recognise someone that they knew?
22 A. Other than if you looked at the -- say, the literature on
23 Alzheimer's disease or something like that, where people sometimes forget
24 loved ones, bout other than that, no.
25 Q. Yeah. And I did miss one point that I wanted to follow up with
1 regards to the studies with the college students watching. Again, those
2 studies have to do with the ability or the inability of a person to
3 identify a total stranger whom they saw in this video-clip. That's
4 generally most of the studies, right?
5 A. Yes.
6 Q. Yes, okay, so they are not -- again, my follow-up was they're not
7 asked in these studies to pick someone out of a line-up whom they knew on
8 the film?
9 A. No, I don't think so.
10 Q. Do you know of any research that suggests that trauma might
11 interfere with the memory of someone to such a degree that a person could
12 not recognise someone who they'd known for years?
13 A. I'm not aware of that literature, no.
14 Q. And you're not aware of any -- excuse me. Now, I'm just curious,
15 with regard to the three witnesses in this case, did you happen to count
16 up the number of consistencies?
17 A. I started to with VG-114, but then I decide I think I had enough.
18 I don't remember how many I got.
19 Q. I think you -- maybe it's mistranslated. No. I know you did
20 that with inconsistencies. That's what you said.
21 A. Okay.
22 Q. I'm talking about consistencies.
23 A. Oh, consistencies, no.
24 Q. So you don't know what the proportion was of the statements --
25 proportion of inconsistent versus consistent.
1 A. No.
2 Q. Could it have been 10 per cent inconsistent, 90 per cent
4 A. Without both counts, I wouldn't have a percentage.
5 Q. Would it be important, though, for your opinion, your analysis to
6 study the consistencies?
7 A. That could have been useful.
8 Q. Okay. And also when you were looking at the materials, did you
9 distinguish between -- you didn't distinguish, I imagine, between any
10 peripheral details and those that are the thread details because you
11 don't really know that much about the case, right? So you didn't
12 distinguish about what is important and what isn't important?
13 A. Central versus peripheral, no.
14 Q. Central versus peripheral. Okay. Also in regards to your
15 evaluation and analysis, did you read any of the testimony of our other
16 40 witnesses to see if they corroborated any of the three witnesses?
17 A. No, I wasn't asked to review an extra 40 cases.
18 Q. I'm sure you're busy. Would that have been helpful to see what
19 other witnesses said and then to look at what these women said and put it
20 into context? Would that be helpful?
21 A. I suppose. If you were really going to go that far, it might
22 have been.
23 Q. What do you mean go that far?
24 A. Well, that would have been a lot of reading.
25 Q. Okay. Right. But as you said yesterday, I think you started
1 out --
2 MR. GROOME: Just a minute.
3 Mr. Cepic.
4 MR. CEPIC: I apologise for interrupting. Just the problems with
5 the speakers, and could they slow down for the interpreters. Thank you.
6 MR. GROOME: Yes. Please proceed.
7 MS. SARTORIO: Yes. Thank you. Sorry.
8 Q. We have to slow down. What was my last ... Yeah, okay, did you
9 read any other testimony -- right, you were busy. But yesterday -- I
10 think you started out your testimony, there's a lot at stake here, and
11 it's pretty -- this is -- there's a lot at stake.
12 A. Yes.
13 Q. Yes. So in order to do a full and complete and proper analysis,
14 you probably would need to look at some of the other evidence, the
15 corroborating evidence.
16 A. To do it completely, yes.
17 Q. Yes, and also to examine the women.
18 A. Yes.
19 Q. Yes. Yourself. Okay. Now, when you were asked to do this, who
20 asked you to review these? Was it Mr. Alarid?
21 A. Mr. Alarid.
22 Q. Okay. And again, did he give you the materials? Did he say,
23 Here's the transcripts and the statements, and ask you to do something
24 with them?
25 A. He handed me the binders and said, I'd like you to review the
1 materials and basically tell me what you think, and does it, in the
2 vernacular, hang together?
3 Q. And did you ask for any other materials in the course of your
4 reviewing everything? Did you say -- if a witness -- one of the
5 witnesses, for instance, referred to another witness, would you have
6 wanted to read that witness's statements too?
7 A. Yes. I didn't ask for that.
8 Q. Okay. Now, I want to concentrate on VG-63 first, and I apologise
9 here. I've mislaid ...
10 MS. SARTORIO: I apologise, Your Honours.
11 Q. If you want, we could bring up your report on the screen. This
12 is VG-63. It was marked for identification. Do you have it -- thank
13 you, Mr. Alarid.
14 MR. ALARID: Sure. 1D22-0788. And I apologise, I didn't have my
15 microphone on.
16 MS. SARTORIO:
17 Q. Now, I just want to ask you a couple of questions about, again,
18 going back to inconsistencies. You made a -- you talked yesterday about
19 her statements about the aggressor soldier carrying the head and the
20 aggressor soldier and then again Milan Lukic. Again, you don't know
21 whether this person -- how the questions were asked, and you don't know
22 whether on the third occasion or the occasion where she was asked whether
23 someone asked if it was Milan Lukic. You don't know that, do you?
24 A. No, I do not.
25 Q. So it may not be an inconsistency at all. Is that -- I mean, is
1 it possible?
2 A. It's possible. It's unresolved.
3 Q. Right. It's unresolved. Okay. Now, also, some of your -- what
4 you consider to be inconsistencies are -- you refer to the witness being
5 confronted, confronted by Mr. Cepic in particular. Well, you know that
6 in a court, for instance, right now, here, I can put anything to you --
7 well, within reason.
8 A. Yes.
9 Q. Right. It doesn't mean it's true.
10 A. No, that's true. That's a correct statement, yes.
11 Q. Right. So if a lawyer puts a proposition to a witness, it
12 doesn't necessarily mean it's true.
13 A. I agree with that statement.
14 Q. Okay. But you rely on that when you say she's confronted with a
15 fact, and you said she was confronted with the fact she placed
16 Mr. Momir Savic at the Hasan Veletovac school at the time he had been in
18 know for sure whether that witness was in Slovenia, so you don't know
19 whether that's an inconsistency.
20 JUDGE ROBINSON: Mr. Cepic.
21 MR. CEPIC: It is a wrong interpretation, what I said in the
22 transcript, what this expert quoted in his report. It was related -- my
23 quotation in the transcript was related to the judgement in
24 Mitar Vasiljevic case, not about some other things, and it was clearly
25 quoted in this report as far as I understood. Thank you very much.
1 JUDGE ROBINSON: Make sure you have it correct.
2 MS. SARTORIO: Okay. Well, it was -- well, it's something that
3 Dr. Hough quoted in his report, so if it's not accurate, then it just
4 makes -- it's not -- should be taken out of the report or corrected,
5 Your Honour. I don't know. I'm asking about it, and I assume it was
6 done. It was ...
7 MR. CEPIC: It is really -- sometimes I'm -- Your Honour, with
8 your leave, sometimes I'm really surprised with the allegations from
9 opposite side. I think that the Prosecutor had enough time to check
10 those allegations, to check the transcript, and to check the judgement
11 from Vasiljevic case. It is quotation from the judgement related to that
12 witness VG-115. Thank you very much. I apologise for disturbing.
13 MS. SARTORIO: Well, all I'm --
14 JUDGE ROBINSON: Ms. Sartorio, I would suggest that you move on.
15 MS. SARTORIO: I will, Your Honour. Okay.
16 Q. But in drafting your report, though, you have to assume that
17 everything you read is -- you assume it's correct.
18 A. I assumed in that report, yes, that that statement was correct.
19 Q. Okay. Now, with regard to the tattoo issue, you said at one
20 time, are you aware that this witness on two occasions in court twice
21 said that she didn't see tattoos on Mr. Lukic, and she twice said she
22 didn't remember saying that in a statement, so she has said that. So is
23 it a possibility that the person who was taking the statement just wrote
24 it down there wrong and ...
25 A. I suppose that's possible.
1 Q. Now, on page 2 of your report, and I know you have it in front of
2 you, you talk about the combination of conditions and overall psychiatric
3 status with her capacity to provide rational and consistent reports. Are
4 you saying that someone that's suffered a traumatic event and maybe
5 second trauma isn't rational or can't provide rational information?
6 A. No, I'm not. What I'm alluding to is in this particular case of
7 VG-063, we have a combination of sources of trauma. One would be the
8 experiences of the war. The second would be that which she experiences
9 in her own home.
10 MS. SARTORIO: We have to - sorry - strike that, about ...
11 Q. Could you just avoid talking about any -- well, it's not
12 really -- if we're going to talk about the personal details, we have to
13 go into private session, so you can talk -- we know what we're talking
15 JUDGE ROBINSON: Private session? No?
16 THE WITNESS: No.
17 MS. SARTORIO: No. I think we're okay.
18 THE WITNESS: Okay. I guess the point I would make would be that
19 we have what would be considered a compounding of traumatogenic
20 conditions from two different sources. And again, I cannot claim that
21 even with the compounding that makes that, therefore, she can't provide
22 testimony or rational testimony, but it does mean that the loading, the
23 potential for that increases, and that I do think that we see at times a
24 slippage in testimony, whether it's due to the convergence of these two
25 types of trauma or some other source, I don't know, but we see that. So
1 I note the trauma and the compounding trauma only as a factor to be
3 MS. SARTORIO:
4 Q. And you mentioned, also, in this report and in others, you talk
5 about this -- the fact that the witnesses are under psychiatric care.
6 Now, you would agree with me that -- you know, you're in the business, so
7 someone being under psychiatric care doesn't make them any less accurate
8 or any less reliable, does it?
9 A. No. Not necessarily, not at all.
10 Q. And also taking medication for some disorders isn't going to
11 affect them in any way, memory or accuracy or ...
12 A. It depends on the case, but by and large you can't make a general
13 claim that because you're on medications or you're under care, that you
14 are impaired, no.
15 Q. And in fact, you know, I think you'd agree with me that there are
16 a lot of lawyers and doctors and other professionals who take medication
17 for, say, depression, Prozac, on a daily basis, and they're carrying out
18 their activities just fine.
19 A. Yes.
20 Q. And -- okay. Now I can move on to VG-114.
21 MS. SARTORIO: We can put that report up on the screen.
22 Q. Sir, this is the woman Zehra who we contend is the sole survivor
23 of a fire. Do you have it? Sorry.
24 MS. SARTORIO: It was Y027-3870.
25 Q. And I guess we'll start with the first page, the bottom of the
1 first page. The bottom. Oh, is that the bottom? Okay, the top of the
2 second page, then. It's the first paragraph of your report. You say
3 that you found no evidence from any of the materials that you've reviewed
4 that "a thorough forensic analysis was completed to determine the scope
5 of the fire, the kinds of accelerants that may have been used, or the
6 human remains that would have been left by such a fire."
7 You say that; right?
8 A. I had said that.
9 Q. Okay. Now, why is that important an evaluation of a witness's
10 testimony? In the context of this, why is that important?
11 A. Well, I would refer forward, I guess, to in my mind the
12 unresolved question in terms of the statements, the claims, gas cylinder
13 versus house fire. So I do think that helping resolving that question by
14 forensic analysis at the site would be useful. And in many of the cases
15 I work, I also review the forensic evidence that comes in regarding the
16 crime scene itself.
17 Q. Okay. Well, you know these crimes occurred 16, 17 years ago.
18 A. Yes.
19 Q. But you say "I find no evidence from any of the materials I have
20 reviewed ..." Well, the only thing you were given to review were their
21 statements, so why would anything about the forensic materials be in
22 these witness statements and the transcripts?
23 A. Well, I reviewed everything the attorneys gave me, and there was
24 nothing of that nature in there.
25 Q. It would have been helpful for you to have said, since I haven't
1 reviewed anything else. You know, because you don't know -- because you
2 haven't reviewed the whole thing, you don't know what forensic analysis
3 was or was not done. So you can't make an assumption here that there was
5 JUDGE ROBINSON: Yes, Mr. Alarid.
6 MR. ALARID: For clarification, the witness asked me for police
7 reports, and we were not able to give him something that would have
8 complied with that in the true sense of the word that might have included
9 such information, so we gave him what we had.
10 JUDGE ROBINSON: Yes. Please move on.
11 MS. SARTORIO: Yes.
12 Q. I understand that, but again, the report should be clear that you
13 weren't provided with any police reports to draw any type of conclusion
14 about what or wasn't done. Isn't that fair to say, Doctor?
15 A. I think it's probably fair to say.
16 Q. Now, I want to talk to you about Zehra's -- what happened to her
17 in court. Are you aware that the reason she left court was because
18 unannounced, without any notice, without any preparation as she's on the
19 stand, she was shown photographs of herself all burnt that she hadn't
20 seen for years.
21 A. Pardon me. Can you tell me, was this the first time or the
22 second time?
23 Q. The first time. That's why she had to leave and take a break.
24 Are you aware of that?
25 A. No, I wasn't aware --
1 MR. ALARID: Your Honour, I would object. It assumes facts not
2 in evidence, and the witness left the stand as we were going through
3 photographs, and I don't think we were ever provided any particular
4 information with regards to the situation, so I would say that it's an
5 improper hypothetical and assumes facts not in evidence before --
6 JUDGE ROBINSON: The witness did leave the courtroom.
7 MR. ALARID: I know that.
8 JUDGE ROBINSON: [Overlapping speakers]
9 MR. ALARID: I know that, but I mean -- we were never -- one, I'm
10 curious -- well, if the Prosecution was not able to have this particular
11 contact and we weren't given any particular notice, I'm wondering how
12 this particular theory as to why she left the stand is presented to the
14 MR. GROOME: Your Honour.
15 JUDGE ROBINSON: Yes.
16 MR. GROOME: I mean, no one had contact with Zehra Turjacanin. I
17 the it was very clear what happened. Mr. Cepic called up the video of
18 her first interview, and when it was put on the screen in front of her,
19 an image she had not seen for 17 years, an image showing her terribly
20 injured, she just immediately said, Please, I need to leave the
21 courtroom. And she was escorted out of the courtroom, so it doesn't take
22 any interview. I think it's a reasonable deduction we can all make. We
23 were all here. We witnessed that.
24 JUDGE ROBINSON: So the question is what --
25 MS. SARTORIO: The question is basically would that have --
1 JUDGE ROBINSON: If it is put that way --
2 MS. SARTORIO: Hypothetical.
3 JUDGE ROBINSON: Yes. If it is put the way that Mr. Groome just
4 put it.
5 MS. SARTORIO:
6 Q. If that were the case, would that be important for you to know
8 A. Well, yes. Let me say several things. First of all, I didn't
9 know what the stimuli that she was reacting to was until just now; but
10 second, yes, it would be important because it would suggest to me as a
11 clinician that she is responding to -- she's being overstimulated by
12 something. We call it a trigger. She has been triggered by having seen
13 these pictures that she has not seen for these many years that reminds
14 her of the trauma. That trigger kind of reaction, trigger phenomena is
15 often what we see in the traumatic conditions, so it would have been
16 clinically useful, yeah.
17 Q. But it could also happen to a normal person who sees something
18 that horrifying. Have you seen the pictures of her?
19 A. I think I saw a video-clip, but -- I think I saw that, yes.
20 Q. As I said, a normal person could also have this -- not a normal
21 person. Someone not suffering from a disorder could also have this
23 A. Especially if it's a picture of themselves in that condition.
24 That's possible.
25 MR. ALARID: Your Honour, I would like to clarify that on
1 September 25th; 2008, the witness left the stand during my
2 cross-examination and not during Mr. Cepic's presentation. I believe
3 Mr. Cepic had the opportunity to cross-examine during the return of
4 Ms. Turjacanin, which happened -- yeah, sometime -- considerable -- and
5 on November 4th is when she was shown this, and for what context that is
6 in, that's not the reason why she left and did not return until November.
7 JUDGE ROBINSON: Thank you for the clarification. Let's move on.
8 MS. SARTORIO:
9 Q. Okay. And also in your report of VG-14, yes, you make note of
10 the fact that she asked -- she told the officer -- she told them about
11 the burns being the result of another accident. Now, you know having
12 been in the Balkans and seeing the war and what it's done to people that
13 someone who is a Bosnian Muslim civilian woman going to the Serb police
14 and telling them that something had happened and done by Serbs, probably
15 wouldn't have been a smart thing to do, would it, for her?
16 A. You mean to tell them about a fire? Is that what you're --
17 Q. Well, telling them that Milan
19 A. Well, it may not have been. I don't know enough about the
20 circumstances to say that with certainty, but, you know, that's possible
21 that that could have been in her appraisal, in her analysis of what to
22 say. That's possible.
23 Q. So all of these different things that I'm pointing now --
24 MR. CEPIC: Excuse me, Judge.
25 JUDGE ROBINSON: Yes, Mr. Cepic.
1 MR. CEPIC: This witness never said that my client set the fire
2 in that house, so this is -- I don't see any foundation for those kind of
4 MS. SARTORIO: I'm asking him about the report to the police
5 department, not -- it's a hypothetical.
6 MR. CEPIC: It is unacceptable, completely unacceptable from my
7 point of view.
8 MS. SARTORIO: Well, sir, other --
9 JUDGE ROBINSON: Ms. --
10 MS. SARTORIO: Other witnesses --
11 JUDGE ROBINSON: If you're going to rely on the evidence, you
12 have to be accurate.
13 MS. SARTORIO: Yes, Your Honour.
14 MR. CEPIC: There is no such report. Thank you very much.
15 MS. SARTORIO: There isn't, but other witnesses, particularly
16 VG-119 has said that this witness told her that, so there is evidence,
17 and I don't think we should be arguing about the evidence in front of the
18 witness, Your Honour.
19 MR. CEPIC: And also -- I apologise. May I -- Your Honour, may
21 JUDGE ROBINSON: Ms. Sartorio, how much longer will you be?
22 MS. SARTORIO: I'll move on very quickly, Your Honour.
23 MR. CEPIC: I apologise for disturbing, and just for the record,
24 this witness never said this, she went to the police and report. Thank
25 you very much, and I apologise for this.
1 MS. SARTORIO:
2 Q. Just a few more questions about this witness. It's important,
3 isn't it, Doctor, when you write a report that you do provide citations
4 for everything you cite to, and I know you tried to do that in this
5 report, but there are a lot of sentences that don't have any citations.
6 A. Yeah, that's true. I mean, I cited the ones that I thought were
7 important, but I suppose an argument can be made that every sentence
8 should be cited.
9 Q. Right. Because otherwise we don't -- when you say -- you talk
10 about in the third paragraph on page 4 - page 4, please, thank you - the
11 last paragraph, when you talk about on cross-examination, you say, for
12 example, in earlier versions of her narrative she said her brother and
13 Mr. Lukic were close friends, now she does not. You don't cite anything
14 there, so can you explain why each one of your facts is not cited?
15 A. No.
16 Q. I'll move on.
17 MS. SARTORIO: May we now have the letter regarding VG-115, which
18 is Y027-3879.
19 Q. Now, with regard to this, you say: "Turning to the documents, it
20 becomes evident that witness VG-115 has serious emotional problems." You
21 conclude that.
22 A. I'm sorry. Can you show me where you are again, please.
23 Q. It's the first paragraph of the report: "I begin this analysis
24 ..." and it's toward the end. Turning to the documents, it becomes
25 evident that VG has serious emotional problems. Can you tell that
1 somebody has serious emotional problems just by looking at a document, or
2 should you be doing that?
3 A. Well, there is document analysis, and you -- I mean, I haven't
4 provided a technical diagnosis, but I have alluded to a number of ways in
5 which I infer from the material that there are some problems here, so I
6 think that's a fair -- it's a summary statement and later on in the
7 report I go on to flesh that out.
8 Q. Okay. But you also rely with regard to this witness on the fact
9 that she says, and you quote her, I was out of my mind, that if it wasn't
10 for my daughter, I would have killed myself. Now, don't you consider
11 that to be actually a rational thought, that she didn't consider it
12 because of her daughter?
13 A. That part is -- the statement as a whole is both rational and
14 irrational. The irrational part is -- well, I don't know if it's
15 irrational, but she's telling us how desperate she had become, that she
16 had been pushed to the brink of contemplating taking her own life. The
17 rational part is that she can step back and observe and recognise that
18 she does have something to live for: Her daughter. That becomes a
19 protective factor, a buffer against action.
20 Q. It could also be interpreted that she's responsible, that she's
21 living up to her responsibilities as a mother.
22 A. Well, that's true too.
23 Q. That has my point, though. You can look at any number of these
24 factors that you've cited to, and there is more than one way of looking
25 at the conclusions that you've drawn and the citations. For instance,
1 you mentioned further on on page 2, you mentioned about the
2 transportation, the ride home. When confronted about accepting a ride
3 from Mr. Slobodan Roncevic from her place of employment to her home, her
4 answer confuses the concept of accepting a ride home for transportation,
5 with the sexual connotation of being taken home. But, again, you don't
6 know in a different culture when someone says, I'm going to take you
7 home, that's what they mean. We can't rule that out.
8 A. Okay. But that was my read on it, but I agree with your point.
9 Q. Right. Okay. Thanks.
10 Now, another point which is further up when you talk about
11 Mitar Vasiljevic, she responded when asked where he was to locate a mark
12 on the scene, she responded, Do you think he just stood in a single spot?
13 And for some reason you said her thinking could not flexibly allow for
14 representation on a map to represent more than him. Well, actually, I
15 thought -- can't you read that as she's being actually very astute?
16 She's telling the person, the Prosecutor, or whoever's asking her, he
17 didn't just stand in one spot, so I can't just put one spot. She's
18 actually doing a better job of answering the question than was asked of
20 A. You could, but I think the general task was to -- that the X on
21 the -- the indicator, the spot on the map would be a generalized
22 representation of where he was. And to try to -- for her to specify that
23 he moved around a lot is -- it's a bit of a concretization. It's not
24 serious, but ...
25 Q. Okay. And with regard to the Vasiljevic judgement, which has
1 been referred to, alluded to in your testimony yesterday, you didn't read
2 the judgement, did you?
3 A. No. I was referencing the commentary from Mr. Cepic.
4 Q. Cepic. I know. It's hard to pronounce. Have you to be here a
5 while to --
6 A. I'm sorry, sir.
7 Q. So you we are referencing again his comment about it. You don't
8 know if that's true.
9 A. That's -- no, you're right. I haven't read the judgement, but I
10 have no reason to believe that an officer of the court in open court
11 would make a false claim deliberately, either.
12 Q. But there are many reasons why a witness may not be found
13 credible in another case and found credible in another case; isn't that
14 true? There's different circumstances, different witnesses in the cases.
15 They're two separate cases, so you can't carry one into the other based
16 on a question by Defence counsel.
17 MR. ALARID: Objection, Your Honour. It violates the principles
18 of res judicata and calls for the witness to make a legal conclusion.
19 JUDGE ROBINSON: Yes. Not res judicata, but move on. I don't
20 think there is much point in the question.
21 MR. ALARID: Law of the case, Your Honour. A pre-adjudicated
23 MS. SARTORIO: Your Honour, it's not --
24 Q. Sir, you don't know the circumstances of that case, do you?
25 A. No, I do not.
1 Q. And you don't know exactly what the judges said in the judgement?
2 A. No, that's correct.
3 Q. But you did rely on that. You did put that in your report
4 without really knowing the full stance circumstances; right?
5 A. That's correct.
6 MS. SARTORIO: May I have one moment, Your Honour, and I may be
8 I have no further questions of Dr. Hough.
9 Thank you, Dr. Hough, for answering my questions.
10 JUDGE ROBINSON: Thank you. Any re-examination, Mr. Alarid?
11 MR. ALARID: Yes, Your Honour.
12 JUDGE ROBINSON: How long will you be? Is there another witness?
13 MR. ALARID: Not too long, and we are prepared Ms. O'Leary and
14 Mr. Jenkins are en route only because they are offline, or Ms. O'Leary is
15 offline, rather. So actually I expected this to go to full session, but
16 it's not, so we would be ready at least to start Mr. Jenkins, I'm
17 assuming. If we could -- I'll probably know either if she pops up on the
18 screen, which sometimes happens, and/or at the break might be a good
19 opportunity, and Mr. Ivetic can go out and check right now.
20 JUDGE ROBINSON: Yes, Mr. Ivetic, please go and check and bring
21 her in.
22 MR. ALARID: And what's this document, Your Honour, the power of
23 attorney we're going to have to execute before we start?
24 JUDGE ROBINSON: It's a standard document with the Registry.
25 They'll tell you about.
1 MR. ALARID: Okay, thank you. I just want to facilitate that.
3 Re-examination by Mr. Alarid:
4 Q. Now, Doctor, let's start first with going back through, and we'll
5 just do it in the order of the cross-examination. You know, obviously --
6 well, you indicated in your report that some of the sources you looked at
7 were newspaper articles and general news and/or reporting, as well as you
8 probably looked at the web site here, case information sheet, the
9 indictment as some due diligence before you got involved?
10 A. Yes, I did.
11 Q. Why would you be looking for psychopathy when looking at this
12 kind of case? You said that you were half-surprised or whatnot as to
13 what you were looking for.
14 A. Well, I would be looking for psychopathy because in a case where
15 someone had actually engaged in the actions for which this defendant has
16 been accused, that this is the kind of behavior that one would fully
17 anticipate from somebody who is of a psychopathic nature, and by that I
18 mean specifically is able to kill without remorse, lacks conscience, and
19 doesn't see the value in human life.
20 Q. Now, you indicated that some issues might start showing up as a
21 juvenile, and you used the reference point of a teenager. What kind of
22 things would you expect, and why is that important?
23 A. Typically, the budding psychopath would begin to manifest in
24 adolescence, typically manifested by, say, getting in trouble with the
25 law, engaging in miscreant behaviors that bring that child to the
1 attention of the law, so juvenile delinquency. Often you will see school
2 problems or school failure, moving into a deviant lifestyle characterized
3 by heavy use of drugs or alcohol.
4 JUDGE ROBINSON: Yes. Thank you.
5 MR. ALARID:
6 Q. Thank you. And also you considered you were questioned a little
7 bit about the basic overall intelligence, average, below average,
8 whatnot. Why is that important for your analysis?
9 A. Because generally speaking, the higher the intelligence, the more
10 capable that individual really is of functioning in the world. Someone
11 of very low intelligence would not be expected to function as well or as
12 adaptively as someone with very high intelligence.
13 Q. Now, I'm going to pose this as a hypothetical, but I would
14 proffer that some evidence was given in this case by a witness or
15 witnesses actually that knew him in the general area of his high school
16 years. And one witness, in fact the witness that accuses him of trying
17 to shoot him at the Drina River
18 get in fights and hadn't been aggressive as far as he knew. How does
19 that play into your -- how would that fact -- if it were shown from a
20 direct witness, how would that factor in? Would that be a collateral
21 source, if you will?
22 MS. SARTORIO: Your Honour, this is outside the scope of
24 JUDGE ROBINSON: Yes. Next question.
25 MR. ALARID: Is it outside the scope, Your Honour? I mean --
1 JUDGE ROBINSON: Yes. I rule it's outside. It doesn't arise.
2 Don't redo the evidence that you led in chief.
3 MR. ALARID:
4 Q. Would you expect to find someone of this -- of emerging
5 psychopathic tendencies to have violent or aggressive behavior early on?
6 A. Yes, you would.
7 Q. Now, VG --
8 JUDGE ROBINSON: We've been through that already. We've been
9 through that already. Let's move on and conclude this gentleman's
11 MR. ALARID:
12 Q. I can't remember if I gave you VG-63's testimony, but if I were
13 to proffer to you that she said she knew him in school and that he was
14 always trying to be the centre of attention -- yes?
15 MS. SARTORIO: No. Sorry.
16 MR. ALARID:
17 Q. That she was always try to be the centre of attention but he need
18 to be helped in school, would that be a collateral source for purposes of
19 your evaluation?
20 A. I think it would in terms of functioning in an educational
22 Q. Now, you were cross-examined on lack of collateral sources. In
23 an ideal set of circumstances, would you would have to complete your
24 evaluation in so few hours?
25 A. Can you say that again for me, please.
1 Q. Under ideal situations -- I mean, in this situation there were
2 timetables and obviously access, you know, problems considering where
3 you're at and where him and his family are at. But under normal
4 circumstances, would you take much more time to do those collateral
5 sources and follow-up?
6 A. Yes, I would. The logistics here are just so complicated.
7 Q. Now, Judge David posed some questions to you about Binswanger,
8 and I'd like you to explain to the Court the circumstances where the --
9 someone would be governed more by the societal pushes or the authority
10 that may be pushing, and I'd like you to explain in a very brief nutshell
11 for the Court the Milgram studies.
12 A. Okay. I have referenced the Milgram studies as representative
13 or, rather, as a paradigm, an explanatory concept to try to explain why
14 it would be that many individuals under certain environmental
15 circumstances engage in behaviors for which they would not otherwise have
16 engaged had they not been in that circumstance. And Milgram is one of
17 the paradigmatic lines of study that approach that problem. He engaged
18 in a series of experiments at Yale University
19 looking at the problem of obedience to authority. Milgram had been very
20 concerned about how could it be from World War II that so many people had
21 seemingly followed blindly.
22 In a nutshell, what he's able to demonstrate in his study is that
23 human beings do have a powerful propensity to obey authority, and he
24 showed --
25 JUDGE ROBINSON: Thank you. Thank you.
1 Your follow-up question.
2 MR. ALARID: Yes, Your Honour. I think it's a powerful analogy
3 to briefly go through the circumstances --
4 JUDGE ROBINSON: I don't want to hear anymore.
5 JUDGE VAN DEN WYNGAERT: I think we all know about the Milgram
6 experiments. It's very common knowledge to professionals like you, but
7 you're not talking to a jury, Mr. Alarid.
8 MR. ALARID: That's fair enough. To be honest, I hadn't heard of
9 Milgram until Dr. Hough told me about it, and so I wouldn't presume that
10 you would have exposure, although I would presume because you're here, of
11 course, I'm sure the defence has been raised before.
12 Q. Now, there was some concern posed by the Prosecution that all the
13 information is coming from him. But how do you take that into account --
14 I mean, I'm sure you have to consider that in a forensic evaluation
15 regardless of the access to collateral sources, and tell us how you
16 balance that.
17 A. Well, as I said, this is a case where I did have to rely so far
18 primarily upon the self-report from the man examined himself. In an
19 ideal situation, of course, I would have tried to have gathered as much
20 collateral information as possible. But short of that looking at his own
21 self-report, I look at internal consistency. I look for the way in which
22 he tells his narrative. I look for the way in which he's related to me
23 in terms of the patient-examining relationship. I look for
24 contradictions, gaping omissions. I look for times when he becomes
25 emotionally pressured or not. I look for a lot of clinical indicators
1 that are ongoing and constantly being monitored in the process of the
2 evaluation. So there is a clinical diagnostic process unfolding at every
4 Q. And what do you factor in as your inability to have access to the
5 subject, and what normally do you do in terms of revisiting this with the
7 A. Well, again, I try to get as much extra collateral as I can when
8 I can get it, but beyond that I would go back and try to revisit with the
9 accused and go over those particular areas that remain unresolved or
10 which I have specific concerns about. And I would always as much as I
11 can try to get into the details themselves about the allegations.
12 Q. Now, there was some reference to -- and brought up -- it was
13 admitted as P -- I believe it was 313.
14 MR. ALARID: Could we have that, page 11.
15 Q. And just as a lead-up while they're putting it on the screen,
16 there was a discussion between you and the Prosecutor regarding his role
17 in the military and the command structure. But specifically, he referred
18 to a commander, Vinko Pandurevic, simply as in the chain of command above
19 him. How -- did you assess him as being in a paramilitary or in the
20 military based on that reported information?
21 A. Well, I mean, he told me a number of times in many ways that he
22 was in the command structure of the military, but that particular name,
23 General Pandurevic, in my understanding would clearly implicate him as
24 being in the chain of command, and he denies having ever been outside
25 that chain.
1 MR. ALARID: A moment, Your Honour. I'm just reviewing my notes.
2 I don't have much.
3 Q. What other factors -- with regards to -- let's move on to the
4 witnesses, please. Talking generally with regards to the women witnesses
5 that were referenced in your letter reports, the Prosecution brought up
6 certain issues about these -- or actually, I think you brought it up,
7 that statement-taking procedures, the differences between them can
8 account for some of the inconsistencies, yet can there be a complication
9 from the test-taking procedures that would also affect the reliability of
10 those statements, or do you have a feeling on that?
11 A. I feel like you're asking me several questions here.
12 Q. I probably am. How important is consistency in the
13 statement-taking procedures?
14 A. Consistency in that methodology is important, I would say very
15 important. Ideally, the statements would be gathered by the same
16 individual across time. Then you would have a control on that
17 consistency question.
18 Q. Now, statistically speaking or within your experience, does
19 memory become clearer over time?
20 A. The general consensus --
21 MS. SARTORIO: Objection, Your Honour. This was all covered in
22 direct examination.
23 JUDGE ROBINSON: I agree. You're just rehashing.
24 MR. ALARID: Your Honour, I'm trying to cut it way down, but
25 these were brought up in cross-examination, so I at least believe this is
1 proper subject matter. If the Court feels I've adequately covered the
2 issues on direct, I can move on.
3 JUDGE ROBINSON: Yes, move on.
4 MR. ALARID: Your Honour, I will pass the witness. And simply as
5 a matter of housekeeping, I would introduce the exhibits into evidence
6 for the weight to be assessed by the Court, but I think the relevance and
7 the expertise have been established, and I would like to list them in
8 individually. I believe the CV has already been admitted, 1D22-0719. I
9 would tender the evaluation of Milan Lukic, 1D22-0735. I would tender
10 the analysis of Witness VG-115 as 1D22-0775. I would tender the analysis
11 of VG-114, which is 1D22-0779. And I would tender the appendix to said
12 analysis as 1D22-0784. And I would tender the analysis of Witness VG-63,
13 1D22-0788. I would tender those into evidence.
14 MS. SARTORIO: Your Honour, we would have something -- we would
15 like to speak to that but not in front of the witness. May the witness
16 be excused?
17 JUDGE ROBINSON: You want to speak to what? The admission of
18 these documents?
19 MS. SARTORIO: Yes, Your Honour.
20 JUDGE ROBINSON: Well, why should the witness be excused? He has
21 completed his testimony.
22 MS. SARTORIO: Well, Your Honour, it's our --
23 JUDGE ROBINSON: As a matter of fact -- you have finished your
25 MR. ALARID: Yes, sir, we have.
1 JUDGE ROBINSON: I see. We can do this.
2 Witness, that concludes your evidence. I thank you for giving it
3 and particularly for the frank manner in which you have given it. You
4 may now leave.
5 THE WITNESS: Thank you, sir.
6 MR. ALARID: And, Your Honour, I think it would be appropriate
7 that if you consider the exhibits, they should be under seal.
8 [The witness withdrew]
9 JUDGE ROBINSON: Yes.
10 MS. SARTORIO: Your Honour, it's the Prosecution's position that
11 these -- the report and the three letters should not be admitted.
12 There's really hardly any indicia of reliability whatsoever to these
13 documents. I mean, the doctor is a professional, and he did what he
14 could, but all we have is a self-report of Milan Lukic. It's
15 Milan Lukic's statement to the Court without having to take the stand.
16 That's all it is, and he admitted that, and he admitted the short-comings
17 in that report, so it really cannot have no value. And it shouldn't be
18 admitted and considered as evidence in this case. And with regard to the
19 witnesses, Your Honour, he admitted the short-comings there. He did not
20 see these women. He doesn't know. And all he can say is, you know,
21 people with trauma may have difficulty recording things. And I think
22 that, again, these should not be admitted in evidence. Thank you.
23 JUDGE ROBINSON: I disagree with you strongly. It only goes to
24 weight. I'll consult my colleagues.
25 [Trial Chamber confers]
1 JUDGE ROBINSON: We admit the report by majority, Judge Van Den
2 Wyngaert dissenting.
3 THE REGISTRAR: Your Honours, 1D22-0375 will become
4 Exhibit 1D203. 1D22-0775 will become Exhibit 1D204. 1D22-0779 will
5 become Exhibit 1D205. 1D22-0784 will become Exhibit 1D206. And
6 1D22-0788 will become Exhibit 1D207. All are placed under seal. Thank
8 [Trial Chamber and legal officer confer]
9 JUDGE ROBINSON: Mr. Ivetic. Mr. Ivetic. It appears that a
10 question has been raised about the propriety of Ms. O'Leary doing the
11 examination. I am told that in the Milutinovic case, the person involved
12 was in fact assigned to the Milutinovic case. Is that so?
13 MR. IVETIC: That is correct. In both instances, they were
14 assigned to the case as Ms. O'Leary is so assigned on our case, I
15 believe. We've never --
16 MR. ALARID: As far as the Registry was concerned, Your Honour,
17 we never made a formal request for her to be removed. We picked up our
18 new case manager, of course, because she wasn't able to take on the
19 lion's share of the duties, but in a ghost-writing perspective or at
20 least some help in assisting us to show us where things are going, she
21 helps us all the time, and she's been a wonderful asset. So I think for
22 practical purposes she's part of our family on this team, and we consider
23 her as such.
24 JUDGE ROBINSON: I understand that to be an obstacle, that she's
25 not assigned to the case. It distinguishes it from Milutinovic.
1 MR. ALARID: Well, Your Honour, my position was there would be
2 nothing from a rules perspective, I would hope, that would prevent a
3 licensed attorney from taking a particular witness if -- you know, I
4 think it's a good opportunity, but I wasn't aware there would be any
5 actual impediment within the rules that was so specific. I mean, we
6 could take the break and try to get in touch with Ms. Osure.
7 [Trial Chamber confers]
8 JUDGE ROBINSON: We'll take the break now and see whether it can
9 be ironed out. I'm not certain whether that obstacle can be gotten over,
10 but we'll see.
11 MR. ALARID: Thank you. I appreciate it.
12 JUDGE ROBINSON: I'm not given to these -- interpreting rules in
13 these rigid ways myself, but if they're there, then we may have to follow
15 MR. ALARID: Okay.
16 --- Recess taken at 5.38 p.m.
17 --- On resuming at 6.13 p.m.
18 JUDGE ROBINSON: Mr. Alarid, let me speak first. I say,
19 Mr. Alarid, I'm sorry that I have to disappoint Ms. O'Leary. OLAD has
20 taken a point that she has not been assigned to this case. That's
21 different from the Milutinovic case, and it would not be proper for her
22 to appear as counsel.
23 MR. ALARID: Your Honour, over the break I resolved the matter
24 and spoke personally with (redacted)
4 the solution was found is to re-classify Ms. O'Leary as a pro bono legal
5 assistant to signed. No new confidentiality materials need to be signed
6 because they are already in the possession of OLAD, and she was simply
7 going to get confirmation that Mr. Djordjevic of the Djordjevic Defence
8 did not object. And she has a voice mail on her mailbox, and I have
9 informed her of that from Mr. Djordjevic that there's no problem bauds
10 Ms. O'Leary had of course had obtained prior approval from her lead
11 counsel on that case to take the time off to take this witness. So from
12 that stand point, I consider the matter resolved from the Registry side
13 of things.
14 JUDGE ROBINSON: Well, I congratulate you.
15 MR. ALARID: I mean, but of course -- you're right. Making no
16 assumptions, Your Honour, as to the issues that the Court make take with
18 [Trial Chamber and legal officer confer]
19 JUDGE ROBINSON: Well, Mr. Alarid, you seem to have resolved the
20 situation, and I think you are to be complimented. We welcome
21 Ms. O'Leary to the trial, and before the witness is called, Ms. Marcus.
22 MS. MARCUS: Thank you, Your Honours. Good afternoon. The
23 Defence has provided us with a list of exhibits they intend to use
24 through Mr. Jenkins, and on the list is something listed as a statement
25 of Uscumlic, and then it says from 65 ter. Now, a very careful look at
1 the 65 ter list does not reveal any statement from Zoran Uscumlic.
2 MR. IVETIC: I can clarify that, maybe. There's a similar
3 name -- we should probably by in private session for this, Your Honour.
4 JUDGE ROBINSON: Yes, private session.
5 [Private session]
20 [Open session]
21 THE REGISTRAR: We're in open session, Your Honours.
22 MR. GROOME: Your Honour, while wire waiting for the witness to
23 come in, Mr. Alarid made mention that there might be two of the
24 subpoenaed witnesses appearing next week. The Prosecution would
25 appreciate knowing which two so we can conduct our preparations over the
2 MR. IVETIC: We have sent an e-mail to Mr. Stevan Cole of the
3 Office of the Prosecutor listing the potential witnesses for next week.
4 The first two on that list are the subpoena witnesses for whom we have
5 received verification that they've been served.
6 MR. GROOME: Thank you.
7 [The witness entered court]
8 JUDGE ROBINSON: Let the witness make the declaration.
9 THE WITNESS: My name is Cliff Jenkins, Your Honour, and I
10 solemnly declare that I will speak the truth, the whole truth and nothing
11 but the truth.
12 JUDGE ROBINSON: You may sit, and you may begin, Ms. O'Leary.
13 MS. O'LEARY: Thank you, Your Honour.
14 WITNESS: CLIFFORD JENKINS
15 Examination by Ms. O'Leary:
16 Q. Good evening.
17 A. Good evening.
18 Q. As you know, my name is Marie O'Leary, and I'm an attorney
19 appearing on behalf of Milan Lukic. With me today is lead counsel for
20 Mr. Milan Lukic, Mr. Jason Alarid, and co-counsel, Mr. Dragan Ivetic.
21 Before we begin, I would like to remind you that because we are both
22 seeking the same language, we should mind a pause between question and
23 answer to make sure that there is enough time for translation. At the
24 same time, be sure to speak slowly and clearly so that everything can be
25 picked up for the record.
1 A. Yes, counsellor.
2 Q. Could you please state your name for the record and spell.
3 A. My name is Cliff Jenkins, C-l-i-f-f, J-e-n-k-i-n-s.
4 Q. And where do you currently reside?
5 A. I live in Albuquerque, New Mexico. Would you like me to spell
6 that for you?
7 Q. Please.
8 A. It's A-l-b-u-q-u-e-r-q-u-e.
9 Q. And where were you born?
10 A. In Albuquerque
11 Q. And when were you are born?
12 A. July 4th, 1950
13 Q. And are you married?
14 A. I am.
15 Q. And do you have any children?
16 A. I do. I have two biological children. My family's a product of
17 a blended family, so I have two biological children, three daughters that
18 were adopted. I have a step-daughter and a step-son.
19 Q. Thank you. And can you give us a brief history of your
21 A. I am a product of public schools in the city of Albuquerque;
22 graduated high school in 1968; enlisted in the Air Force in 1969 and the
23 International Guard. When I returned from basic training, I then
24 enrolled at the University of Albuquerque
25 University of Albuquerque
1 point was unable to finish my education at that point in time, and
2 periodically over the years, went back, took classes, but never completed
3 my formal degree.
4 Q. Thank you. And what position do you hold now?
5 A. I am the managing partner of a company could
6 Jenkins & Jenkins LLC. We are -- we provide several different services
7 to the legal community throughout the United States. Some of the things
8 we do are similar to this in that we review cases and make
9 recommendations to our clients on possible legal action. We also do
10 things like mock jury scenarios where attorneys get a chance to make
11 their arguments before a panel of citizens before they take their cases
12 to court so that they can refine their arguments. We have been involved
13 in a large environmental contamination case in Colorado and in
14 New Mexico. We have done multiple what in the United States
15 internal affairs investigations. That is investigations involving police
16 misconduct. And the police organizations are too small to have a
17 dedicated unit to perform those investigations, and they have come to us
18 and contracted with our company to perform those investigations for them
19 and report our findings to the chief or the mayor of that municipality so
20 they can take appropriate disciplinary action if it's required.
21 Q. Thank you. And when was that company founded?
22 A. That company was founded in January of 1996.
23 Q. And who founded this company?
24 A. I did.
25 MS. O'LEARY: Can we have on the screen, please, 1D22-0692.
1 Q. And while that's coming up, can you tell us, what's the last
2 position that you held prior to founding that company?
3 A. I was the executive deputy chief of police for the city of
5 organisation, approximately 250 civilians employees, and at the time,
6 right at that time 750 sworn officers. Could be a few more about that --
7 actually, as I think about it at the time I retired we were close to a
8 thousand, 950 officers.
9 Q. And what tasks were in your responsibility when you were in that
10 position as deputy chief?
11 A. Part of my responsibility, I really was in charge of everything
12 that really didn't deal either with the field, with the officers that
13 take calls for service or with investigations, with the detectives. But
14 I was responsible for some investigative functions within the
15 organisation: Internal affairs, audits, and inspections are all
16 investigative functions within the department, but we also had
17 responsibility for payroll, personnel, communications, our information
18 systems developing, crime analysis, vehicle maintenance, the police
19 academy, recruiting, all aspects of the police function outside of law
21 Q. Thank you. There's a document on your screen now in front of
22 you. Can you tell me what this document is.
23 A. This is a copy of my CV.
24 Q. Can you tell us a little bit about your experiencers then, if we
25 go to page 2, and start with your work as a police officer. Just
1 briefly, what duties did you undertake as a police officer?
2 A. Well, in our organisation, you really start from the ground up.
3 Everyone that's brought into the organisation begins as a patrolman
4 second class. That is a period of time when you're on probation, and as
5 you work your way up, there's a possibility to grow -- to grow your
6 career. From the time I graduated from the police academy initially as
7 all officers are, they're assigned to field services, which is the part
8 of the department that takes calls for service; they write reports,
9 conduct very preliminary investigations and then forward those reports in
10 through the organisation. We also make misdemeanor arrests, DWIs, write
11 traffic tickets, that sort of thing. In October of -- actually, I
12 graduated from the police academy in December, end of December, 1st of
13 January of 1972, going into 1973. Spent some time, approximately a
14 little over a year, year and a half in the field. In October, I put a
15 letter of request for transfer into the traffic division and was
16 accepted, so I became a motorcycle police officer, and that's where I
17 also began to hone some skills as an investigator investigating traffic
18 accidents, traffic fatalities, as well as continuing to write citations,
19 and make arrests for driving under the influence. Continued that
20 process, was eventually accepted into what is called the field
21 investigator programme. As a field investigator, you're responsible for
22 the collection of evidence, handling of that evidence, making sure that
23 it gets to the forensics departments properly sealed and maintained. We
24 photograph crime scenes, all sorts of things that would not -- the lesser
25 crimes that would not involve actually bringing a forensics team out to
1 the field to investigate, the lower-level types of crimes; burglaries,
2 robberies, some sex offenses, that sort of thing.
3 Q. And can you tell us how you got involved in more investigative
4 work or your investigative background.
5 A. I was selected to go to the burglary/narcotics unit after my
6 stint in the field, and once I got into that unit, that is investigations
7 per se. I mean, that is all you do is investigations, and I managed a
8 caseload of approximately 35 to 40 cases a month that involved property
10 Q. And what experience do you have in supervising investigations?
11 A. When I was promoted to the rank of sergeant, my initial
12 assignment was to the field, back into field services. After one year's
13 time, I was then reassigned back into investigations to the crime lab.
14 Because of my experience as a field investigator, they felt that I was in
15 the best position to manage that team, and the crime scene team is the
16 team that actually rolls out to major crimes like homicides, you know, if
17 there is a big crime scene that is very technical in the way that it is
18 approached and developed, so I was responsible for all of those sorts of
19 investigations in the field.
20 Q. Thank you. And can you tell us a little bit further about
21 homicide investigations that you worked on.
22 A. Yes. In addition to the homicide investigations that I worked in
23 the laboratory, at the same time I was assigned in criminalistics or in
24 the lab, I had tested for promotion to the rank of lieutenant and made
25 the list for promotion, finished second on that list, so the commander of
1 the investigations bureau asked if he could move me, then, from the lab
2 to violent crimes until such time that I was going to be promoted. They
3 want to get somebody in my position and start training them right away to
4 get them up to speed.
5 So I was -- I agreed to the transfer. They moved me then to
6 violent crimes, and in violent crimes I oversaw the sex crimes unit, but
7 we rotated through. There were three sergeants in that unit, the
8 homicide sergeant, sex crimes, and robbery, and we rotated on an on-call
9 basis, and as a result I managed to supervise the investigation, probably
10 35 homicides or so, thereabouts.
11 Q. And can you tell us about any prior experience you have in
12 testifying before a Trial Chamber.
13 A. Before a Chamber such as this, I have no experience at all, but I
14 have countless hours of testimony before US district courts at all
15 levels, federal, state, and municipal courts.
16 Q. And what else in your expertise or included in your CV that we
17 haven't touched upon do you feel helps the Trial Chamber assess your
19 A. I think just from that it's also important to note that I also
20 had the opportunity to investigate very complex crimes in the organised
21 crimes unit. Very -- in fact, international, there were a couple of
22 international crimes that were investigated involving money laundering.
23 And it's also important, I think, that the Tribunal know that I also have
24 managed to climb through the ranks to -- finally to the rank of deputy
25 chief and still maintained expertise in case review.
1 Q. Thank you.
2 MS. O'LEARY: Your Honour, I'd move to admit Mr. Jenkins's CV.
3 MS. MARCUS: Your Honour, we object. And if the Chamber allows,
4 I'd like to ask Mr. Jenkins a few questions about his expertise.
5 MS. O'LEARY: We have no problem with it, Your Honour.
6 [Trial Chamber and legal officer confer]
7 JUDGE ROBINSON: We have already admitted Mr. Jenkins as an
8 expert. I know over the past week we had allowed certain questions, but
9 the Chamber is not going to allow it on this occasion. You can ask your
10 questions of him in cross-examination going to the weight of his
12 MS. MARCUS: Understood, Your Honours. Thank you.
13 JUDGE ROBINSON: Yes, Ms. O'Leary.
14 MS. O'LEARY: Thank you, Your Honour. So I would again move to
15 admit the CV.
16 JUDGE ROBINSON: Yes, we admit it.
17 MS. O'LEARY: Thank you.
18 THE REGISTRAR: Exhibit 1D208, Your Honours.
19 MS. O'LEARY:
20 Q. Now, Mr. Jenkins, how did you become involved in the present
22 A. I received a telephone call from the firm that Mr. Alarid is
23 involved in asking me if I would be interested in reviewing the case with
24 him when he was in town on a break.
25 Q. When did he first contact you?
1 A. I believe the first contact I had on the case from his colleague
2 was -- I want to say around March of 2008.
3 Q. March of 2008?
4 A. Correct.
5 Q. When did he subsequently contact you?
6 A. We finally met, if I remember right, the end of June of 2008.
7 Q. And as any preliminary matter, what process did you have to go
8 through to become assigned to this case?
9 A. There was a submission of my CV to the Registry, and at that
10 point I guess it was reviewed by -- I'm really not familiar with the
11 process on this end of it, but I assume that the CV was presented to
12 whoever. The CV was accepted, and I received notification from the
13 Registry that I had been accepted as an expert witness.
14 Q. Do you know approximately when that was? If you don't know, we
15 can move on.
16 A. I don't know for sure.
17 Q. Thank you. When did you subsequently meet with Mr. Alarid to
18 discuss the case further?
19 A. We met in November of 2008.
20 Q. And what was the proposed scope of your assignment?
21 A. He asked me to review some specific areas, the Varda factory, the
22 fire at the Bikavac scene and the Pionirska scene.
23 Q. And what qualifications do you have that make you suitable for
24 such an assignment?
25 A. Just 30 years worth of good, hard police work and investigative
1 experience as reflected in my CV and the ability to know and understand
2 police functions, how they're supposed to function, and apply that in
3 a -- I think, a fair and even-handed manner.
4 Q. Now, I believe you've seen a copy of the indictment in this case.
5 A. Yes, I have.
6 Q. Why was your assignment limited to those incidents that you've
7 listed, Pionirska, Bikavac, and Varda factory?
8 A. I think that's where my area of expertise really lies is in the
9 crime scene evaluation of the process, not so much some of the outlying
10 or peripheral items that are contained in the indictment.
11 Q. And what perspective or goal did you have in the process of
12 looking at the materials?
13 A. My goal was simply to evaluate the process and whether or not it
14 met the accepted standards for police investigations that are -- that
15 were in affect not only now but also back in 1994 during the time that
16 this incident took place.
17 Q. Can you tell us -- I think you said it was November. Can you
18 tell us back in November, how did you go about beginning to review the
20 A. I didn't review any of the materials until we had been accepted
21 by the Registry. That was sometime after the initial meeting, and I --
22 as I said before, I couldn't tell you the exact date, but once that was
23 done and the letter of confidentiality was executed, the materials were
24 turned over to me for review. That included witness statements, and
25 primarily that's it. I mean, there were no other reports or documents to
1 review or to support.
2 Q. Did you receive any subsequent materials, photos, other exhibits?
3 A. I have received photographs of the scenes that were, I guess,
4 provided by the ICTY. We have copies of, like I say, the statements that
5 were taken by the investigators for ICTY. That's really all the material
6 I had at the beginning to review.
7 Q. Thank you.
8 A. But may I say, it was very voluminous. There was a lot of
10 Q. Thank you. And if I pause, it's simply for the translation.
11 We'll discuss more later, but briefly, can you tell us if you performed
12 any site visits?
13 A. We did.
14 Q. When did you perform site visits?
15 A. In January of 2009, the end of -- January 29th, I believe, of
17 MS. O'LEARY: And if we could have 1D22-0696 on the screen,
19 Q. Mr. Jenkins, there's a document in front of you on the screen.
20 Can you tell us from the first page here, anyway, what is this document?
21 A. This is a copy of the report that I generated to the Registry
22 concerning our site visit.
23 MS. O'LEARY: Your Honour, with your permission, I'd like to give
24 the witness a hard copy so it's easier to flip through.
25 JUDGE ROBINSON: Yes.
1 MS. O'LEARY: And if we could go to the last page, please, and go
2 down to the bottom of the page, if possible. Thank you.
3 Q. And whose signature is that on the last page?
4 A. This is a facsimile of my signature.
5 Q. But this is your report?
6 A. This is my report.
7 Q. The same submitted?
8 A. Yes.
9 Q. Having had some time now to review this report in preparation for
10 testimony, would there be any changes that you would make to this report?
11 A. Yes. There are specifically two items that I would amend.
12 Q. Okay. Let's start with the first one. What is the first change
13 you would like the make?
14 A. The first thing I would like to -- give me one second, and I'll
15 give you the exact location. On page 7.
16 MS. O'LEARY: If we could go to page 7, please.
17 THE WITNESS: On paragraph 7, at the bottom it states that the
18 bridge is not lighted, but in fact the bridge is lighted. I would like
19 to amend that part of the report. The bridge is lighted.
20 MS. O'LEARY:
21 Q. Thank you. And you said there was a second change you would like
22 to make. What is the second change?
23 A. Second change, is also on page 7, that would be in paragraph 6,
24 the one immediately preceding, and it deals with the damage to the eaves
25 of the house. Since review of photographs since that time, I have
1 determined that that roof was actually rebuilt at some point in time, so
2 that would be why there would be no obvious fire damage to the eaves of
3 that adjacent residence.
4 Q. Thank you. We can call that up at another time later on in your
5 testimony and discuss further, but thank you for noting that.
6 If we could go in the report to page 3 now. And right about in
7 the middle of the page. You indicate that you have some issues of
8 concern, I believe you said. Can you please explain -- I don't want to
9 get too ahead of ourselves, but if you could give us a brief overview of
10 general concerns that you had.
11 A. The issues of concern that I had concerning my review of the
12 report are really -- for lack of a better word, I guess they are things
13 that one would expect as a professional investigator, areas that should
14 have been covered, and in my review they were areas that seemed to be
15 lacking. So if there were some way that through further evidence being
16 presented to the contrary, I would be glad to review any of that
17 material, but at this point in time I have not seen anything that would
18 change the way the report reads. I have major concerns with the way the
19 entire investigation was conducted.
20 Q. Can you briefly tell us, though, what those major concerns were?
21 A. Well, from the very onset the way that the witnesses were -- the
22 way the statements were taken from the witnesses at the time. There's no
23 memorialisation of those statements. They appear to be versions that the
24 investigators -- they interviewed the witnesses. They then, for lack of
25 better words, digested that information from the witnesses, and then had
1 the statements drafted using the words of the investigator rather than
2 the words of the witness themselves. By doing that, you run the risk
3 of -- I won't say contaminating; that's not necessarily the case, but you
4 run the risk of injecting your own bias as an investigator into the
5 investigation. And it also causes problems because there's no accurate
6 record of what the witnesses have truly said. It's certainly possible
7 that because of questions of dialect, of regional slang or whatever that
8 the words of the witness possibly could have been misunderstood, and
9 there's no way to go back and know for sure exactly what the witness
10 said. And some of those things are critical to this particular
11 investigation because it deals so much with the nuances of the case.
12 Q. I want to go back to your first concern here because it is your
13 first concern in the report, where you're speaking about witness
14 credibility. And you list a series of questions at page 4.
15 MS. O'LEARY: If we could go to page 4, please, and skip right
16 down to number 6, actually.
17 Q. You were briefly just discussing this, but what are these
18 questions that you've listed here? What do these questions represent?
19 A. Well, they represent a standard by which investigators should be
20 conducting themselves when they're interviewing witnesses, the idea being
21 that you do not want to lead the witness to a conclusion that you want
22 them to make. I want to know what the witness is saying without
23 necessarily any interpretation, so I think the proper way in this case to
24 conduct these investigations would be to ask open-ended questions that
25 would give the witness the opportunity to tell their story with as little
1 interruption as possible.
2 Q. And how can translation affect statement-taking?
3 A. Well, it's a tremendous problem, I think, in a lot of areas where
4 you're dealing with people that have -- they're using two or three
5 languages. For example, if the investigators are using English and the
6 witnesses are speaking Bosnian or Serbian, whichever, there's a bridge
7 that has to be built by the question that's being asked on one side; it
8 goes through the bridge to the Bosnian side. We get a response to the
9 question, and then it comes back the other way. Well, if there's a
10 misinterpretation or a misunderstanding of the question, then all of a
11 sudden it generates issues within the investigation as to whether or not
12 it was accurately translated, and the correct nuances were asked of the
13 individual. The only way to get around that that I can see is if it is a
14 recorded -- a continuously recorded statement, much like the transcript
15 of a trial, so that the investigator will have the opportunity to at a
16 later time go through the recording or go through the transcript line by
17 line and make sure that there are no issues. And also by doing that, it
18 saves the record so that at a later time Defence can independently have
19 the tape transcribed and also for the Prosecution, you can look at those
20 translations side by side to make sure that there are no glaring errors
21 in the way the questions are asked or in the answers that are received.
22 Q. What observations did you make about this statement-taking method
23 used in this case?
24 A. The method, although it may be acceptable in some sorts of
25 investigations, for example, a white collar crimes case where most of the
1 evidence that's going to be reviewed really deals with documents and the
2 documents will speak for themselves, this particular investigation or
3 this type of a case involves an accused perpetrator. This is a different
4 type of investigation than a white collar investigation. The nuances are
5 much more important. The credibility of the witnesses are much more
6 important, and therefore, they should be examined more closely.
7 Q. What effects would in statement-taking process have on a direct
8 commission case such as this, in your opinion?
9 A. Well, it really provides the first level of the investigative
10 process, so as an investigator, what I want to do is I want to take the
11 statements that my witnesses have given me, and based on that I'm looking
12 for a foundation and direction on how I want to approach this case. So
13 the statements of the witnesses will help me determine which way the
14 investigation is -- what turns it's going to take to completion, and it's
15 important especially in those early statements that as much
16 information -- truthful and accurate information as possible be gained
17 because from that information, we will develop suspects; we will develop
18 an investigative plan on how we want to approach the crime scene; and
19 really, it is -- those initial statements are the foundation from which
20 the rest of the building blocks of the case will be built.
21 Q. In looking also at your report, if we move up to number 3, you
22 ask the question: "Is the witness associated with any victim rights
23 groups that have other agendas?" What specific concerns arise out of
24 that, or why would an investigator ask that question?
25 A. I think it speaks to motive. I think it speaks to credibility.
1 If there is a victims rights group involved in the process, especially
2 later on, it calls into question the entire reason why in person is
3 coming forward. Is this person -- and it's simply a question that you as
4 an investigator have to ask yourself: Why is this person coming forward?
5 Is the person coming forward in order to receive reparation? Is there
6 some reward or benefit to this individual for coming forward? And if so,
7 if you can make that determination, what is the witness saying? Is it of
8 value to me? Do I get some sort of gain by bringing this information
9 forward? I mean, it just really speaks to the credibility of the
11 Q. You talk about motives for providing false information. Have you
12 experienced in your own time as a police officer people with motives?
13 A. Yes.
14 Q. How does an investigator ferret out false motives, false
15 testimony motives?
16 A. Well, it's important, I think, to understand the nature of the
17 crime. You know, are there any family ties associated with this crime?
18 Revenge is a tremendous motive; so is finances. They're tremendous
19 motives. Did the individual come forward of their own volition and
20 provide information? Are they trying to support the contentions of
21 another family member who has already given a statement? Are there
22 religious ties associated? I mean, you really have to look at all of the
23 aspects of someone that has an association with some sort of a victims
24 rights group and ask, you know, is the information valid? And I'm not
25 saying you should totally discount what they have to say. But what I am
1 saying is that you need to look at the motive and be satisfied yourself
2 that the information that they're giving you is true and correct and not
3 motivated by some other factor.
4 Q. What type of flexibility does an investigator have to have, then,
5 to try to understand the person they're interviewing and determine
6 whether there is some albeit mistaken or intentional false testimony?
7 A. Well, I think you have a great deal, and what you have to do is
8 you have to look at statements of the other witnesses. Does the
9 information this witness is giving you, is it in lock-step with
10 information from other witnesses? The way you can -- the way you can
11 separate out -- the way you can separate out the information is by -- I'm
12 sorry, I lost my train of thought. That's okay.
13 JUDGE ROBINSON: Perhaps just as well. Ms. O'Leary, it seems to
14 me that we have covered the general principles of proper investigation,
15 and what we now should be doing is applying them to the case because I
16 presume that he has specific comments to make about the case, which can
17 assist us in our work here.
18 MS. O'LEARY: Thank you, Your Honour.
19 Q. You've heard the Judge's comments. In applying it to the
20 statements that you viewed to the ICTY, what possible motive, accidental,
21 intentional, what factors went into specifically statement-taking here
22 that could affect any sort of credibility in this specific situation in
23 your opinion?
24 A. We don't know.
25 Q. Why not?
1 A. Because there are no reports that have been filed by the
2 investigators, so we have no way of knowing what processes were taken in
3 order to collect those statements.
4 Q. In this Tribunal, there's a lot of media coverage because of the
5 large scale of it. How can that affect the statements of the witnesses
6 taken in these cases?
7 A. Well, assuming that these people have to go home if they're still
8 living in the Visegrad area or, for that matter -- it doesn't really
9 matter. I mean, if they're going back into their civilian lives, there
10 is the potential for tremendous pressure being applied to them by groups
11 of individuals of their own ethnicity that would like to see an outcome
12 that is favorable to their point of view.
13 Q. And I think we can move on now from the statement-taking and move
14 on to the area of forensics, which I know you dealt a good deal with in
15 your report, I believe if we turn to the next page of the report. On
16 page 5, you mention a listing of failures of field investigators in the
17 forensics process.
18 If we go one by one, what can you tell me about the forensics
19 that were done? What reports did you review in Pionirska?
20 A. First of all, may I just say that the crimes that are being heard
21 by the Tribunal are certainly horrific, and I am totally sympathetic to
22 the work that the forensics investigators did or didn't do. I know it
23 was a difficult task. Now, having said that, from a critical point of
24 view, there were no forensics reports generated by any of the
25 investigators, and I sent e-mails to the Defence on several occasions
1 asking for copies of forensic reports and was told that there were none
2 available. With that in mind, I cannot comment on the work that was done
3 by any forensics investigators because to the best of my knowledge there
4 were -- there is no work that was done. The investigators --
5 JUDGE ROBINSON: No work or no report?
6 THE WITNESS: I'm sorry?
7 JUDGE ROBINSON: No work or no reports?
8 THE WITNESS: No reports. I know of no reports. I have seen a
9 video, and I think it was probably the first time that the investigators
10 visited the crime scene. I think it was around 2001, but, again, I'm not
11 sure because there's no report to document that. In that video, they
12 take exterior shots of the house on Pionirska. They go right up to the
13 door, ready to enter into the crime scene, and for some reason they go no
14 further. Now, why they didn't do that, I don't know, but they chose to
15 stop the cameras, go back, and take other shots of the area.
16 MS. O'LEARY:
17 Q. Mr. Jenkins, let me just interrupt you. What would an absence of
18 forensic materials mean?
19 A. An absence of forensic materials is basically there is no
20 physical evidence that can be linked from the crime scene to either the
21 indictment or trial. There's no physical evidence of anything that is
22 accepted in a court of law. Because once you as a law enforcement agency
23 have approached that crime scene, if you leave the scene before the scene
24 is processed, it's generally considered from that point forward that the
25 scene has been abandoned, and any evidence that is obtained subsequent to
1 the time that the scene has been released is of no value.
2 Q. Let's take a hypothetical investigation that you would be
3 leading. What steps would you take from the beginning to the end in
4 investigating the scene of the crime?
5 A. Okay. Hypothetically, what you would do is upon arrival at the
6 scene, you would want to photographically document the exterior of the
7 crime scene. You would want to prepare a sketch of the crime scene for
8 the investigator's notes as to where he located specific pieces of
9 evidence; and before the search of the scene for evidence commenced, you
10 would want to take a tape measure and physically measure the size of the
12 Q. Why would you want to do that?
13 A. So when the evidence was located, you can then go back again with
14 your tape measure and locate where in that crime scene that particular
15 piece of evidence was located. So if necessary, a forensics investigator
16 could come been the Tribunal and accurately tell the members of the
17 Tribunal at what specific point in the room a particular piece of
18 evidence was found. It may or may not be important to the case. That's
19 not up to the investigator to determine. That is up to the learned body,
20 the Tribunal to give whatever weight to the evidence they see fit.
21 Q. Proceed with the next step that you'd take.
22 A. So once the area has been measured, then we want to do a quick
23 visual inventory in the crime scene to see if there's any items of
24 evidence that are immediately available or immediately noticed by the
25 investigator. So, for example - again, a hypothetical - let's just take
1 a normal homicide scene, not necessarily one that's involved here but
2 just a normal homicide. If you go into the room or you open the door to
3 the room, you've already, you know, made your drawings and everything,
4 and you see a gun sitting in the middle of the floor, it's obvious that
5 that gun is probably going be a piece of evidence; either could be
6 self-defence, could be the murder weapon, we don't know. We would want
7 to locate that weapon in the diagram, and we would do that by measuring
8 two points, two known points within the crime scene, and we would then
9 triangulate the location of that weapon. So if -- for example, if I went
10 along the south wall of a room, and I said from the door jamb 18 inches
11 to the west along the south wall and to a point 3 feet to the north, then
12 we would know one of the axis for the location of that weapon. Then I
13 would go to the east wall, do the same thing. From the corner to I point
14 parallel with the weapon, it's this distance; and from that point to the
15 weapon, is so far. By doing that, now I have actually put the weapon in
16 a cross, as you will, and I can go back to that room and I can put that
17 weapon in the exact location that it was at the time that we conducted
18 the search.
19 Now, in this particular scene, it is a cold crime scene. I mean,
20 it's beyond cold. These weapons --
21 Q. Can I just stop you and ask you what you mean by cold crime
23 A. A cold crime scene implies that there's been an extended period
24 of time between the actual events that took place and the time that the
25 forensics search was done. And as time has gone on, there's a potential
1 for cross-contamination of evidence, that being cross-contamination is a
2 term of art, for items being brought into the crime scene from the
3 outside that really have no relevancy to the crime scene itself.
4 JUDGE ROBINSON: As in cold case on TV.
5 THE WITNESS: Correct. That's exactly what it is.
6 MS. O'LEARY: Thank you, Your Honour.
7 Q. What types of materials would cross-contaminate a scene as you're
8 talking about?
9 A. Could be anything. It really depends on the type of scene. In
10 our hypothetical homicide, it could be trace evidence such as hair. It
11 could be trace evidence like fibres. I mean, there's really -- in our
12 hypothetical, we're talking about a fairly sterile crime scene. If it's
13 indoors, you know, there's not going to be a lot of cross-contamination
14 initially. This particular scene is kind of a combination of
15 indoor-outdoor. It's indoor in the fact that the crime scene is
16 protected from most of the elements, but at the same time there's a lot
17 of problems inside the environment of the crime scene inside, and that
18 causes particular problems for a forensic investigator in the way that
19 they would approach that crime scene.
20 Q. And right now you're speaking about Pionirska specifically.
21 A. Correct.
22 Q. Thank you.
23 But let's talk about time. Let's talk about time and when the
24 availability of the scene came about. Given that there was a war in the
25 region, obviously there was not time to get at this scene or any of the
1 Pionirska, Bikavac, or Varda right away. When people were available to
2 go in, how much time would they have needed to be there in hours, days,
3 weeks, months, years?
4 A. Let me first address an issue that deals really with Pionirska.
5 This combination that we'd talked about of indoor-outdoor scene, it is
6 covered, but at the same time there are a lot of environmental concerns
7 in that area. And I am sensitive to the fact that this was a war zone at
8 the time. But having said that, I've also seen photographs of troops
9 that accompanied the investigators there in the year 2001. So it wasn't
10 that -- it wasn't that it couldn't have been processed. It would have
11 just required a security detail to help secure the scene, and then
12 forensics could have been done. Now, having said that, to properly -- to
13 properly process that scene would probably take in the area of two days,
14 and the reason I say that is not because of the walls or the ceiling.
15 Those could all be done within a matter of hours. The problem is the
16 floor. It is not a hard floor. It is a dirt sub-floor. And what we
17 would have to do to really do that job correctly would be to grid off the
18 floor in, say, 1-metre squares and then take the soil down anywhere from
19 8 inches to 12 inches, remove that flooring, that sub-floor, and run that
20 through a screen box to see if there was any bone fragments, teeth,
21 jewellery, any documents, anything like that that would help to identify,
22 number 1, that a crime did occur at the scene; and, number 2, if it did
23 occur, is there a possibility that we could obtain evidence that would be
24 useful in the Prosecution?
25 JUDGE ROBINSON: All right. Thanks, Ms. O'Leary.
1 We're going to break now.
2 Mr. Jenkins, I'd like you to leave, and you'll return tomorrow.
3 Is it in the morning? We are on all day at 8.50 a.m.
4 MS. MARCUS: Your Honours, sorry, could the Chamber kindly advise
5 Mr. Jenkins that he's not to speak with anybody?
6 JUDGE ROBINSON: Mr. Jenkins, you're familiar with court
8 THE WITNESS: I am.
9 JUDGE ROBINSON: As a witness, you're not to discuss your
10 evidence with anybody.
11 THE WITNESS: Yes, Your Honour.
12 JUDGE ROBINSON: You may leave now.
13 THE WITNESS: Thank you.
14 [The witness stands down]
15 JUDGE ROBINSON: I have a short matter to raise in private
17 [Private session]
5 [Open session]
6 JUDGE ROBINSON: So tomorrow we start at 8.50.
7 THE REGISTRAR: We're in open session, Your Honours.
8 JUDGE ROBINSON: Tomorrow we start at 8.50, and after this
9 witness's evidence we move to the next witness. Who is that?
10 MR. ALARID: Your Honour, we had anticipated that Mr. Rasic would
11 attend. However, problems with arranging his travel arose, and VWS had
12 to cancel his flight, and there was insufficient time to arrange train in
13 advance for tomorrow, so they cancelled the flight. So we would conclude
14 tomorrow whenever Mr. Jenkins finalises his testimony.
15 JUDGE ROBINSON: That is exactly what I was hoping would not
16 happen, that we are not able to utilize the time.
17 MR. ALARID: I agree, Your Honour.
18 JUDGE ROBINSON: I worked so hard to get my colleagues to give me
19 their trial time, and now we're not making use of it.
20 MR. ALARID: I can only -- I could pass you on the VWS -- you
21 know, this is the problem, sometimes we're at the mercy of those things,
22 as well, Your Honour. But we felt real confident. We had the flights
23 arranged, and then it didn't pan out. So if we have to not call him and
24 that's what it ends up being, that's what it'll have to be.
25 [Trial Chamber and legal officer confer]
1 JUDGE ROBINSON: For Monday, you would have the subpoenaed
3 MR. ALARID: Question, Your Honour, I take it? I hope. I don't
4 have any control over the methodology of making that happen. Here was a
5 concern that we had, Your Honours, VWS asked us for the WIF, and what a
6 WIF is, is the witness information sheet that we normally fill out with
7 just the people we know and can get them their passports. The
8 complicating factor, Your Honour, is these people received a subpoena,
9 which means of course we don't have that familiarity with the witness for
10 purposes -- or friendly relationship with the witness, and so we're not
11 sure how to facilitate the travel if we have to do WIFs for people that
12 needed a subpoena to attend this court, and we would assume that there
13 would be something in the process that would account for that.
14 JUDGE ROBINSON: Yes.
15 Mr. Groome.
16 MR. GROOME: Your Honour, just with respect to Mr. Rasic, I'm
17 always trying to be mindful of the record. It just occurs to me to be
18 helpful to preserve what is the reason why -- what happened with the
19 plane? Was it the plane broken down, and Mr. Rasic was not able to abort
20 it? Or was the decision taken that it was going to be too much trouble
21 and the decision was taken not to call him? I think it may be important
22 at a future time.
23 MR. ALARID: The information I have, Your Honour, is that
24 Mr. Rasic had -- and he demonstrated this, I guess, in previous attempts
25 to book him to secure a support person, and he has a fear of flying, and
1 I experienced this with him because I flew with him to Austria in the
2 summertime. And so when that was disapproved, there was no time to
3 reschedule him, and he actually said, I'll get in a car and we can
4 video-link from Belgrade
5 to Belgrade
6 Court for video-link, so that, despite his intentions, really wasn't able
7 to be facilitated between yesterday and today, so that's the situation
8 we're in.
9 MR. GROOME: Can I just clarify. This is the same Vladimir Rasic
10 who played basketball for a university in Florida, went to university in
11 the United States?
12 MR. ALARID: For a junior college, I believe, but yes.
13 MR. GROOME: Okay.
14 JUDGE ROBINSON: Well, one result of our not sitting tomorrow
15 afternoon, since I presume we'll conclude with this witness in the
17 MR. ALARID: That's a possibility, Your Honour.
18 JUDGE ROBINSON: Well, in that case I better not say what the
19 result might be. We'll adjourn until tomorrow morning, 8.50.
20 --- Whereupon the hearing adjourned at 7.16 p.m.
21 to be reconvened on Friday, the 27th day of March,
22 2009, at 8.50 a.m.