1 Tuesday, 14th July, 1998
2 (Open session)
3 (The accused entered court)
4 --- Upon commencing at 9.03 a.m.
5 JUDGE MUMBA: Good morning. Will the
6 registrar please call the case.
7 THE REGISTRAR: Good morning, Your Honours.
8 Case number IT-95-17/1-T, Prosecutor versus Anto
10 JUDGE MUMBA: Can the accused hear me in a
11 language you understand?
12 THE ACCUSED: Yes, Your Honour.
13 JUDGE MUMBA: This morning we are dealing
14 with a motion raised by the Defence as a result of
15 disclosure of documents by the Prosecution after the
16 close of the proceedings.
17 Now, I would like to state to both parties
18 that the Trial Chamber has considered the motion and
19 the arguments by the Defence and also considered the
20 Prosecution response.
21 At this stage, we do not find it necessary
22 for further addresses except perhaps to give Defence
23 counsel an opportunity for a very brief reply.
24 Mr. Misetic?
25 MR. MISETIC: May I have just one moment to
1 consult with counsel then? Thank you.
2 Thank you, Your Honour. Our reply, we have
3 read the Prosecutor's response brief. We obviously
4 dispute almost the entire brief in its entirety, but in
5 particular we make a strong objection to continuous
6 factual statements in the response brief, particularly
7 statements with respect to Witness A's mental
8 condition, whether -- some of those include whether
9 she -- let me find it in particular. They include
10 statements like Witness A is not a schizophrenic, she
11 is not delusional, she has no hallucinations. These
12 are all factual statements. There is no affidavit
13 attached to the brief, there is no reference in the
14 record to any evidence to that effect, and so we would
15 object to factual allegations or factual statements
16 such as those in the brief that have no support through
17 witness testimony at trial or any affidavit attached to
18 the document.
19 Our second and perhaps more important
20 objection to the brief is that it fails to identify a
21 single Prosecutor by name in the brief. We assume that
22 the reference to a senior trial attorney and the use of
23 a feminine pronoun to describe that attorney was a
24 reference to Ms. Sellers. There is no affidavit from
25 Ms. Sellers with respect to what her position was, why
1 she apparently made the decision she chose to make, the
2 document is not signed by Ms. Sellers, and I notice in
3 court today Ms. Sellers is not present to answer any of
4 those questions. We object to her failure to appear in
5 court today on such a serious matter. That is our
6 reply in short, Your Honours. Thank you.
7 JUDGE MUMBA: Thank you very much. I notice
8 that the Prosecution is different today. Who is
9 appearing for the Prosecution, and may we also have an
10 explanation as to why Ms. Sellers is not here.
11 MS. HOLLIS: Yes, Your Honour, Brenda Hollis
12 and Michael Blaxill for the Prosecution today.
13 Ms. Sellers is not here today. There was no
14 instruction that a particular attorney be here today to
15 represent the Prosecution, and I am here to present any
16 oral argument or explanation that the Court may
18 JUDGE MAY: Well, Ms. Hollis, we see you are
19 here and Mr. Blaxill is here. However, there are
20 clearly serious matters to deal with here, and one
21 would have expected somebody responsible to be here and
22 present before the Chamber to answer to these matters.
23 MS. HOLLIS: Your Honour, if I could note on
24 that as well that Ms. Sellers had scheduled a leave
25 time after the conclusion of the case and had actually
1 undertaken that leave prior to the filing of the
2 Defence motion.
3 JUDGE MUMBA: Thank you. However, in future,
4 the Trial Chamber expects that when serious matters of
5 this nature, particularly regarding procedural issues
6 in a criminal trial, particular trial attorneys should
8 You may be seated, Ms. Hollis.
9 The Trial Chamber has observed that there was
10 a serious misdirection on the part of the Prosecution
11 in this case, in particular that Rule 66(C) does afford
12 the Prosecution the opportunity to seek leave and
13 advice of the Trial Chamber in camera in any matter
14 where they have evidence or a document or anything that
15 is relevant to the Prosecution of the case before the
16 Trial Chamber where they are doubtful as to whether or
17 not it is open to disclosure and that the Trial Chamber
18 has got the authority to take a decision after
19 inspecting the said document or examining the evidence
20 which is relevant.
21 In this trial, it is obvious that Witness A
22 did receive either counselling or treatment as a result
23 of the allegations which are the subject matter of the
24 indictment against the accused before the Trial
25 Chamber. So there was no question of the treatment or
1 counselling not being relevant. It is clearly
3 So the Trial Chamber feels that the
4 Prosecution did not fulfil their mandate on disclosure,
5 they failed in this regard, and the Trial Chamber is of
6 the view that that did prejudice the right of the
7 accused to prepare fully his defence, in particular in
8 matters relating to a witness whose evidence more or
9 less deals with the allegations, the subject matter of
10 the indictment.
11 Although the Defence in their motion are
12 appealing to the Trial Chamber to strike out the
13 evidence of Witness A or to order a new trial, on the
14 second point, this Trial Chamber does not have
15 jurisdiction to order a new trial. That is the premise
16 of the Appeals Chamber.
17 On the first point, on the first request that
18 the evidence of Witness A be struck off, the Trial
19 Chamber is of the view that this is a procedural error
20 specifically in the hands of the Prosecution. It has
21 nothing to do with an error committed by a witness.
22 Therefore, the witness, in the view of this Trial
23 Chamber, cannot be made to suffer as a consequence.
24 The Trial Chamber is of the view that the
25 best procedure under the circumstances and in
1 particular considering the indictment in this case is
2 to reopen the proceedings, allow Witness A to come
3 forward for further cross-examination by the Defence,
4 strictly limited to the documents in issue, the
5 statement recorded by the Prosecution in 1995, for that
6 matter, the Certificate attached, to allow the Defence
7 further to call relevant evidence restricted to the
8 issues regarding psychological or medical treatment
9 received by Witness A as disclosed in these two
10 documents. If they wish to recall Dr. Loftus, they are
11 free to do so. If they wish to call any other
12 specialist medical doctor, for instance a psychologist
13 in this case, to deal with the matters raised in these
14 two documents, they are free to do so.
15 However, I must point out that the Trial
16 Chamber is specifically limiting this reopening of
17 these proceedings to the issues raised in these two
18 documents. It is not an attempt to have a new trial,
19 it is not an attempt to allow any party, either the
20 Prosecution or the Defence, to call evidence which was
21 not called at the time the trial proceedings were still
23 That being the view of the Trial Chamber, I
24 would like to ask the parties if they have any
25 objection or any further suggestions.
1 MR. MISETIC: Your Honours, perhaps I should
2 have discussed that in my reply because it was in their
3 response brief.
4 I cannot state, I guess, strongly enough how
5 strenuously we object to the reopening of the
6 proceedings for the simple reason that this was not a
7 mistake made at trial, this was a mistake made well
8 before the trial ever began. This statement was in
9 existence since July of 1995. Mr. Furundzija came to
10 the Tribunal, as you well know, in December of 1997,
11 and the Rule says, Rule 68, "as soon as practicable."
12 This is not simply, if you look at our
13 motion, a matter of cross-examination of Witness A.
14 The Defence made certain decisions which is what the
15 whole Pre-Trial discovery process is for, to evaluate
16 the Prosecution's evidence. That is why there is a
17 sixty day limit in Rule 66(A) to provide the Defence
18 with 60 days to prepare for trial, review the
19 statements that are produced pursuant to Rule 66, and
20 anything pursuant to 68, and then make your decisions
21 as to, for example, Dr. Mujezinovic. Had we had this
22 statement, his cross-examination can go into further
23 detail. My questioning of him, let's say, what he
24 knew, may be evidence that he could have given forward
25 that would then have been relevant to any expert that
1 we call is now out the window.
2 In effect, it would be like trying to unring
3 a bell. The bell has been rung, we made decisions at
4 trial, we've made opening and closing statements, and
5 in effect, to make a reference to poker, we put our
6 cards on the table and now we're trying to go back and
7 piecemeal as to how to reconstruct this.
8 As you well know, a trial is not a piecemeal
9 effort, it is one big picture --
10 JUDGE MUMBA: Mr. Misetic, the Trial Chamber
11 has taken all those points into consideration.
12 MR. MISETIC: You asked if we had an
13 objection. That is our objection. I don't know that
14 we can go back now and piecemeal try to reconstruct a
15 case out of this. Secondly, the relevance of the
16 statement is not just the statement itself, it is any
17 evidence that we could have then, through
18 investigation, have uncovered as a result of being made
19 aware that she had a diagnosis as suffering from post
20 traumatic stress disorder.
21 JUDGE MUMBA: Mr. Misetic, what would you
22 suggest, because the Trial Chamber has decided there
23 will be a reopening of the case. So if you wish to
24 recall, to have any of the Prosecution witnesses
25 recalled, you should say so.
1 MR. MISETIC: We haven't had time to discuss
2 what we wanted to do with that because we didn't
3 foresee that as a -- I mean, that was going to be part
4 of an argument today as to -- we didn't foresee that as
5 a fair or a possible solution to this because, as I
6 stated, a reopening -- I hate to repeat myself, but a
7 reopening puts us in a terribly awkward position now of
8 doing things in reverse, in effect.
9 JUDGE MUMBA: All right. In that case then,
10 you will be given time to reconsider the decision of
11 the Chamber. It will be delivered in writing, and then
12 you will be free to make any applications by motion --
13 MR. MISETIC: May I make an oral application
14 that in the meantime, to reconsider the ruling, since
15 we didn't file a reply brief, didn't have an
16 opportunity to file a reply, that would have been a
17 significant part of a reply brief that we would file.
18 I would ask the Court orally to reconsider the motion
19 in lieu of what our stated position is and the problems
20 that we are going to have in a reopening of the case.
21 I stand here before you today unable to make
22 a judgment as to this because I have to now look
23 through the entire trial testimony, see how we can
24 reconstruct this, but even at this point then, a
25 reopening to us has created a sequence that is clearly
1 out of joint and we have to see now what the effects
2 are on the accused and his rights because we're
3 conducting a cross of a Prosecution witness,
4 potentially a reopening of the Defence's case in
5 chief. Some of the witnesses, particularly
6 Dr. Mujezinovic, may be relevant to us since he was a
7 physician who examined her, he's the only physician
8 whose name we have. We don't have the name of the
9 witness who gave this statement. That has also been
10 precluded from the Defence.
11 JUDGE MUMBA: If I may ask the Prosecution --
12 MR. MISETIC: I have one other comment that
13 was given in a footnote that is particularly
15 JUDGE MUMBA: Before you conclude the
16 psychologist known isn't it, from the submission by the
17 Prosecutor . The one whose statement was taken by the
18 Prosecutor's Office.
19 MS. HOLLIS: Is known to us; is that the
21 JUDGE MUMBA: Yes.
22 MS. HOLLIS: Yes.
23 JUDGE MUMBA: So the name and address can be
24 given to the Defence counsel?
25 MS. HOLLIS: We have not talked to the
1 psychologist as to whether she would agree to that, so
2 that was the reason that that was taken out at that
3 time. It was felt that it was the substance of the
4 information that was being disclosed at that time.
5 MR. MISETIC: Again, Your Honours, if I may
6 reiterate, it is not simply this witness that was, from
7 our perspective, the violation of Rule 68. It is the
8 Pre-Trial failure to disclose the issue that is the
9 violation of Rule 68. It is the Pre-Trial failure to
10 disclose the diagnosis, it is the Pre-Trial failure to
11 disclose that she was having problems with memory. The
12 fact of the matter is, at trial, we, if I may say so,
13 basically had Dr. Mujezinovic not voluntarily offered
14 that, we had no idea that Dr. Mujezinovic was a
15 treating physician. We would have been entirely
16 precluded from that entire area of questioning.
17 Again, I draw the reference to unringing the
18 bell. We can't tell you what we would have done had we
19 known 60 days prior at least, but I say that Rule 68
20 imposes an even stricter requirement, what other
21 avenues of discovery we would have pursued, what maybe
22 would be different from my opening statement, my
23 closing argument. It's not just a question of a
24 particular witness, it's a question of trial strategy.
25 It's a question of decisions made by counsel as a
1 result of the evidence disclosed by the Prosecution.
2 As you will recall in our last Status Conference,
3 Ms. Sellers made on the record a statement that the
4 Prosecution has fulfilled its obligations under the
5 Rules of Procedure and Evidence.
6 We were entitled then to say, "That is the
7 entire Prosecution case, and we can then, as counsel to
8 the accused, make decisions regarding trial strategy.
9 So those decisions permeate the entire case,
10 and again, I would ask the Trial Chamber to orally
11 reconsider, if there is an alternative -- I mean, our
12 belief is, at least under the common law, that striking
13 the testimony is proper. It is not a punishment of the
14 witness, it is a punishment of the Prosecution.
15 The other point I would like to make is this
16 is not the first time this is up. This is the fifth or
17 sixth time I have been before you complaining about a
18 misconduct on the part of the Prosecution. In my
19 statement, in my argument, I was going to say: You, to
20 your credit, have bent over backwards in this case to
21 make sure that Mr. Furundzija gets a fair trial with
22 respect to the issues previously presented, and yet to
23 provide the Prosecution an opportunity to put on a case
24 as pled in the indictment. We had the complaint filed
25 by the Trial Chamber, then during trial, they tried to
1 deviate from the indictment and we needed relief from
2 the Trial Chamber to protect us from that. Now post
3 trial we have even more problems.
4 My position is, if this was the first time
5 that this had occurred, perhaps the Prosecution should
6 be given the benefit of the doubt. But on the fifth or
7 sixth time, how many times must Mr. Furundzija come
8 before you and say, "I have yet another example of
9 misconduct on the part of the Prosecution." And as we
10 go forward, rather than being smaller violations,
11 they're greater violations.
12 With all due respect to Witness A, her
13 problem would not be with the Trial Chamber or with
14 Defence counsel, her problem would be with the
15 Prosecutors in this case and how they conducted
16 themselves, and it's not -- shouldn't be a burden on
17 Mr. Furundzija now to have to not have a trial as any
18 other Defendant before the Tribunal would have a
19 trial. Sixty day disclosure, time to prepare, here are
20 the witnesses, put on your opening statement,
21 cross-examine the Prosecution's witness, put on your
22 case in chief, make a closing argument, and wait for
23 the Trial Chamber to make a decision.
24 Now because of their misconduct, he has to
25 have a trial where the issues directly relevant to the
1 case are now brought, in effect, post-trial, even
2 though the Trial Chamber is opening up the proceedings
3 again, disjointed, and in a way that I don't think --
4 I'm younger than Mr. Davidson but I would suspect that
5 Mr. Davidson has never had to go through something like
6 this in his 35 years and I certainly haven't had to
7 experience a trial where we go out of order.
8 JUDGE MAY: Well, I have 35 years. It's not
9 uncommon in the United Kingdom if evidence emerges at
10 the last minute, and after speeches, for the matter to
11 be reopened. That is so. It seems to me that that is
12 not necessarily an injustice or an unfairness to do
14 While I am, as it were, speaking, perhaps you
15 can help me with this: If you have the opportunity to
16 cross-examine Witness A about the statement, if you
17 have the opportunity to call any evidence about the
18 matter or to have another witness recalled, if you
19 wanted that other doctor recalled for the Prosecution,
20 does that not cure any possible injustice or
21 unfairness? I'm trying to understand the rest of the
22 argument about your strategy. How do you foresee, how
23 do you say that you're put at a disadvantage if the
24 matter is reopened in that way?
25 MR. MISETIC: Because, Your Honours, first,
1 to get to what I was saying earlier, we're not arguing
2 alone that it's the statement or this particular
3 witness that should have been disclosed, it's the
4 information Pre-Trial i.e., this is a significant area
5 that could have been and should have been developed by
6 the Defence. That would have included witnesses that I
7 can certainly say at this point in time, standing
8 before you this morning, I don't even know their
9 identities. So I can't say that calling
10 Dr. Mujezinovic and calling Witness A back would cure
11 the problem because it wouldn't cure the problem
12 because a Rule 68 disclosure is an entire area. That's
13 what I'm saying. The only reason we knew that she had
14 psychiatric or psychological disorders, and I'm not
15 sure that the distinction is that relevant at the
16 moment, is because Dr. Mujezinovic testified as such.
17 Now, the Prosecution states that in her 1995
18 statement, she stated she was suffering. She stated
19 that she had physical problems, she suffered physical
20 problems, she had rashes, et cetera, but there was no
21 statement that "I have had psychological or psychiatric
22 disorders," and indeed at the time she gave the
23 statement apparently she was still going to Medica to
24 receive treatment, not counselling as the Prosecution
25 put it in their brief, it is treatment that she
2 So, no, that wasn't disclosed to us. It
3 should have been disclosed to us. We don't feel that
4 it is a remedy to call one witness back or two
5 witnesses back.
6 On the second problem, which is, we've
7 already put on a case before you. I can't say at this
8 moment that maybe we would have made some other
9 decisions that we wouldn't have called a particular
10 witness or we wouldn't have pursued a specific area of
11 questioning or we would have pursued a specific area of
12 questioning with a particular witness.
13 JUDGE MUMBA: Mr. Misetic, it does not do us
14 any good going over what was not done, what was
15 supposed to be done. We have reached the stage where
16 there is a point, a good valid reason why the Trial
17 Chamber has decided that it will reopen these
18 proceedings, and that is a decision you have to comply
19 with. When the written decision is handed to you, you
20 are free to appeal.
21 MR. MISETIC: I understand that, but it's
22 been our policy to try to go through the Trial Chamber
23 to seek a redress before we go into an Appellate Court.
24 JUDGE MUMBA: After due consideration of what
25 the Defence counsel has submitted, the Trial Chamber is
1 still of the view that the trial can be reopened, and
2 that the Trial Chamber cannot order a new trial.
3 However, in the reopening of the trial, the Defence
4 will be free to recall any Prosecution witnesses, to
5 call any Defence witnesses they feel like calling in
6 order to deal with the procedural matter that has
7 occurred in this case.
8 At this juncture, I would like to ask the
9 Prosecution what their views are, if they would need to
10 do anything.
11 MS. HOLLIS: Thank you, Your Honour.
12 Your Honour, in terms of remedial action that
13 would be appropriate in this case, we believe that the
14 remedial action that has been stated by the Trial
15 Chamber is the appropriate remedial action because it
16 allows fundamental rights to the accused to confront
17 evidence but it also enhances the overlying purpose for
18 which the Trial Chamber is here, and that is the
19 truth-seeking process, and does not punish the witness.
20 Our opposition to the decision does not have
21 to do with the remedial action, it has to do with the
22 analysis leading to a decision that the late disclosure
23 was prejudicial to the accused. The reason that we
24 object to that is as follows: We believe that in
25 making this determination, one cannot look to the
1 documents disclosed themselves. Instead, those
2 documents have to be put into context. And we believe
3 that the context here includes the following facts:
4 The statement that was taken by the OTP on which the
5 Defence has relied in great part was taken in July of
6 1995, and in that statement, contrary to Defence
7 counsel's assertions, this witness does indicate
8 ongoing problems, effects, from what had happened to
9 her, and she includes such things as the inability to
10 sleep, the fact that she has bad dreams, she doesn't
11 want to sleep. So she's not just talking about
12 physical symptoms, she's talking about the
13 psychological impact of the trauma.
14 The disclosed documents are in July of 1995
15 and in September of 1995. So they are talking about
16 the same time frame. They do not add anything
17 significant to what is in the OTP statement. The fact
18 that they add a label to the symptoms that are in the
19 OTP statement do not give greater validity or concern
20 to those symptoms, and the Defence was fully aware of
21 the OTP statement and her description in that statement
22 of psychological as well as physical effects of what
23 had happened to her.
24 In addition to that, Your Honour, the Defence
25 was aware that this witness had gone to Medica and had
1 received counselling, and we suggest it is a
2 distinction with no difference to say it was
3 counselling, not treatment, because counselling, for
4 most purposes, in fact perhaps for all purposes, is
5 treatment. And if we look at the Defence submission
6 itself, we suggest it becomes clear that there was, in
7 fact, no prejudice for this late disclosure. If you
8 look at the discussion by the Defence where they say
9 that the late disclosure --
10 JUDGE MUMBA: Ms. Hollis, may I interrupt
11 you? It is not the intention of this Trial Chamber to
12 ask you to repeat what has been submitted in writing
13 already. I was just asking the Prosecution that, in
14 view of the order by the Trial Chamber to reopen, is
15 there anything the Prosecution wishes to say?
16 MS. HOLLIS: I'm sorry, Your Honour, I
17 thought you also asked if we had any opposition.
18 JUDGE MUMBA: No.
19 MS. HOLLIS: Then if we're not allowed to
20 state any further our opposition, we have nothing
21 further to add.
22 JUDGE MUMBA: Thank you. Mr. Misetic, you
23 have understood the order of the Trial Chamber as to
24 the reopening.
25 MR. MISETIC: Yes, we have, Your Honour.
1 JUDGE MUMBA: A written decision will be
2 issued, and you are free to take your decisions.
3 MR. MISETIC: Thank you.
4 JUDGE MUMBA: The Trial Chamber has got other
5 ongoing trials, and it is our view that in reopening
6 this trial, we are looking at six weeks' time. We
7 would be happy to schedule the first hearing on the
8 31st August, which is a Monday, and perhaps going to
9 the second day, which is the 1st of September. So
10 those are the dates the Trial Chamber is looking at,
11 and the Trial Chamber believes that both parties have
12 sufficient time to prepare their cases soon after the
13 written decision of the Trial Chamber has been issued.
14 MR. MISETIC: Your Honour, may I ask for the
15 following remedy also in the order?
16 JUDGE MUMBA: Yes.
17 MR. MISETIC: That the Prosecution be
18 required to disclose any additional information with
19 respect to psychological or psychiatric care or
20 treatment? The brief they filed is very --
21 JUDGE MUMBA: It only answers the Defence
23 MR. MISETIC: It uses terms like there is no
24 evidence that she underwent psychiatric treatment at
25 Medica. It never comes out and says there is no
1 evidence that she underwent psychiatric treatment or
2 had any disorders, period. What I am concerned with is
3 I don't feel like coming back in the middle of
4 September when potentially more evidence is disclosed
5 even after this, so if we could, to use the phrase, an
6 ounce of prevention -- whatever. You know the
7 statement. I would prefer to know that in advance if
8 the Trial Chamber agrees with the Defence that in light
9 of your ruling today, that it is a relevant area and if
10 they do have more in their files with respect to this
11 area, perhaps it might expedite our investigative
12 efforts. Thank you.
13 JUDGE MUMBA: Ms. Hollis?
14 MS. HOLLIS: Yes, Your Honour.
15 JUDGE MUMBA: You have understood what
16 Mr. Misetic is talking about.
17 MS. HOLLIS: The reference to psychiatric
18 care by Medica was a direct response to the Defence
19 pleading, it was not an attempt to, if you will, use
20 fine distinctions to hide any sort of evidence.
21 JUDGE MUMBA: May I ask this question then:
22 Is there any other evidence that the Prosecution have
23 regarding treatment, psychological or medical or
24 counselling, on Witness A as a result of the trauma she
25 underwent as a result of the allegations, the subject
1 matter of the indictment against the accused?
2 MS. HOLLIS: May I consult for a moment, Your
4 JUDGE MUMBA: Yes.
5 Yes, Ms. Hollis?
6 MS. HOLLIS: Yes, Your Honour. After
7 consultation with co-counsel, the Prosecutor at this
8 time is not aware of additional evidence. Because of
9 the sensitivity of this issue, we will certainly
10 undertake yet another search to ensure that, but at
11 this time, we are not aware of additional evidence.
12 JUDGE MUMBA: Thank you. I think we have
13 come to the end of our proceedings in this matter. We
14 shall adjourn.
15 --- Whereupon proceedings adjourned
16 sine die at 9.37 a.m.