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Page 1827

1 pleadings and in decisions regarding VG-42, most of it arising out of a

2 pre-trial matter. Although the Prosecution identified the witness at the

3 time designated by Rule 65 ter, we had not made the decision to call

4 witness by the time Judge Thelin had ruled all Rule 66 disclosure be

5 completed at times several months earlier. It was his view that despite

6 the absence of any violation of Rule 65 ter by the Prosecution, its

7 failure to identify and disclose the witness according to the work plan

8 he established was a sanctionable act and left it to this Trial Chamber

9 to decide whether or not to permit the calling of this witness.

10 The Trial Chamber on the 8th of July, 2008, denied the

11 Prosecution motion to include VG-42 on the witness list, citing the

12 failure to disclose this witness's statement at the time designated by

13 Judge Thelin. In denying this witness the Chamber acknowledged that the

14 evidence of this witness was prima facie relevant but held the view that

15 the evidence was cumulative of witnesses already included on the witness

16 list.

17 My submission today is an effort to make clear to the Trial

18 Chamber that the evidence of VG-42 is not cumulative and in fact our

19 inability to call VG-42 as a witness compromises our ability to meet our

20 burden of proof on counts 6 and 7 of the indictment. We have made this

21 request in writing in our motion for leave to amend the witness list of

22 the 8th of September in which the Prosecution proposed to drop another

23 witness to this event, a witness we believe may be unable to sustain our

24 burden on these counts.

25 Your Honours, while I still disagree that the work plan deadlines

Page 1828

1 somehow negated the right of the Prosecution to select its witnesses up

2 until the time clearly designated in the Rules, I accept the sanction of

3 the Court. I believe the Chamber in sanctioning the Prosecution intended

4 to deny it the ability to call a witness not to make it impossible to

5 meet its burden on a particular count. That, Your Honours, is the

6 probable effect of the sanction. It is my position that such a severe

7 sanction for what was never an intentional disregard of Judge Thelin's

8 work plan but an exercise of the Prosecutor's rights under Rule 65 to

9 select its witnesses would be an inappropriate and a miscarriage of

10 justice.

11 In April of this year, Your Honour, the Prosecution on its own

12 initiative reduced the size of this case by one-third. Yesterday I moved

13 to withdraw a witness and today I will move an additional witness that I

14 believe is no longer necessary to establish our burden of proof. The

15 Prosecution has endeavoured to prosecute this case in the most efficient

16 way possible, but reducing the Prosecution case to its essential evidence

17 means that the Chamber's decision denying the calling of a particular

18 witness jeopardises its ability to prove its case.

19 VG-42 is the only eyewitness to the Varda executions who knew

20 Milan Lukic from before the event and saw him pull the trigger and kill

21 the men on that day. She went to the killing site afterward and helped

22 bury some of the victims.

23 The Defence have been in possession of VG-42's relatively brief

24 statement for approximately six months now, so I am requesting that the

25 Chamber give serious consideration to our application to substitute this

Page 1829

1 witness, VG-42, for Witness VG-85. In doing so, the Chamber still

2 sanctions the Prosecution for the perceived non-compliance with Judge

3 Thelin's work plan in an appropriate way and does not compromise the

4 Prosecution's ability to prove its case. If the Chamber grants this

5 relief, I would also be seeking to withdraw an additional witness who I

6 believe would not any longer be necessary to the establishment of charges

7 with respect to counts 6 and 7. Thank you.

8 JUDGE ROBINSON: Yes. We'll consider you application and give a

9 ruling as quickly as possible.

10 MR. GROOME: Thank you, Your Honour. And Ms. Marcus would like

11 to address the Chamber on a disclosure matter with respect to this

12 witness.

13 JUDGE ROBINSON: Yes. Just a minute.

14 MR. CEPIC: I think Mr. Alarid.

15 JUDGE ROBINSON: All right. Mr. Alarid.

16 MR. ALARID: Your Honour, just for the record, the time for our

17 response to that motion to substitute witnesses hasn't expired yet and so

18 that was one of the things we wanted to point out in terms of you making

19 your ruling and of course that does, I know, complicate the scheduling of

20 the witnesses but this was just filed September 8th to substitute the

21 witness in again.

22 JUDGE ROBINSON: If we were to allow the application, to grant

23 it, when do you -- would you propose to call this witness?

24 MR. GROOME: Your Honour, one of the problems that we're facing

25 now is that many of the remaining witnesses are subject to pending

Page 1830

1 applications. We would like to call this witness next week. There are

2 other pending applications before the Chamber. One of the suggestions I

3 was going to put forward to the Chamber, I anticipate we may finish early

4 tomorrow with the evidence. I was going suggest to the Chamber to

5 consider devoting the remainder of the time to perhaps dealing with some

6 of these pending applications orally. Again as I say, many of the

7 witness that is we're trying to schedule in the remaining two weeks of

8 the Prosecution case are subject to pending applications and after we

9 receive a decision by the Chamber they are of course many arrangements

10 that need to be made before the witness actually appears.

11 JUDGE ROBINSON: The response would be due on the 22nd if --

12 MR. ALARID: Monday. Monday, Your Honour.

13 JUDGE ROBINSON: Monday.

14 MR. ALARID: Yes.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: Mr. Alarid and Mr. Cepic, would you be able to

17 provide a response to this motion by tomorrow?

18 MR. ALARID: We would make effort if ordered by the Court. We'd

19 prefer not to, of course, but, you know, it would be at the Court's

20 discretion on that.

21 JUDGE ROBINSON: Mr. Cepic.

22 MR. CEPIC: We'll try to do our best and complete this motion --

23 MR. ALARID: And if we --

24 MR. CEPIC: -- tomorrow morning.

25 MR. ALARID: If we could just limit our response just to 42 and

Page 1831

1 give us leave to supplement the response for the remaining witnesses

2 requested by the Prosecution by Monday, that might be a fair way to split

3 the issue.

4 JUDGE ROBINSON: Yes, we can do that. We could do that. So I

5 would expect you to respond tomorrow. This is an informal way of dealing

6 with applications that run into the kind of problem that the Prosecution

7 has, and the same facility will be extended to the Defence when it

8 presents its case. Not that I'm inviting it.

9 MR. ALARID: I hope so, Judge. I'll be probably asking at this

10 point.

11 JUDGE ROBINSON: Ms. Marcus.

12 MS. MARCUS: Yes, Your Honour, could I request closed session --

13 private session for this submission.

14 JUDGE ROBINSON: Yes. Private session.

15 [Private session]

16 (redacted)

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Page 1832

11 Pages 1832-1833 redacted. Private session.

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7 [Closed session]

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