1 Thursday, 19 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 8.53 a.m.
5 JUDGE ROBINSON: Yes. Mr. Groome, I understand you have a point.
6 MR. GROOME: Just a brief matter, Your Honour. I just ask
7 permission for Lieutenant-Colonel Raymond Lane. He is a person we are
8 hoping to call as an expert, and I'd ask for permission to have him sit
9 with me in court to assist me in formulating questions for the Defence
10 expert. I believe it's permissible under 90(C).
11 JUDGE ROBINSON: Yes.
12 MR. IVETIC: I don't know are we done with the preliminary
13 matters? Are we done with preliminary matter or should I call the
15 JUDGE ROBINSON: Yes, please call the witness.
16 MR. IVETIC: We have Mr. Martin McCoy today, Your Honours.
17 [The witness entered court]
18 JUDGE ROBINSON: Let the witness make the declaration.
19 THE WITNESS: I solemnly swear that I will speak the truth, the
20 whole truth and nothing but the truth.
21 WITNESS: MARTIN McCOY
22 JUDGE ROBINSON: Yes, you may begin, Mr. Ivetic.
23 MR. IVETIC: Thank you, Your Honours.
24 Examination by Mr. Ivetic:
25 Q. Good day, Mr. McCoy. As you know, my name is Dan Ivetic, and
1 today I'm going be asking you to assist the Trial Chamber with some
2 questions relative to the Defence of Milan Lukic. How do you feel today,
4 A. Very good. Thank you.
5 Q. Now, just one reminder before we get into the actual questioning
6 portion of my discussion with you. Since we are both speaking the same
7 language, and since this all has to get translated and printed up in the
8 transcript correctly, we have to try to kind and pause between my
9 question and your answer to give the interpreters time to catch up with
10 us, and to make sure that we don't both talk over one another. I would
11 ask that you kind of keep an eye on the transcript that's in front of you
12 to assist you in that regard, as will I. Is that fair enough?
13 A. Yes, sir.
14 Q. Thank you. Now, for the record, could you please state and spell
15 your full name.
16 A. Martin Max McCoy. That's M-a-r-t-i-n, M-a-x, M-c-C-o-y.
17 Q. Thank you, sir. Now, could you just briefly tell us a little bit
18 about yourself? For instance, when and when were you born?
19 A. I was born in the country of the United States, the state of
20 New Mexico, the city of Albuquerque, and that's in the county of
21 Bernalillo, on June 26th, 1973
22 Q. And sir, could you tell us where you currently reside?
23 A. I currently reside in the state, in the city of Albuquerque. My
24 physical address is 6308 Mesquite Drive North-west.
25 Q. And now with regard to your education prior to your employment,
1 could you please give us a brief run-down or summary overview of your
2 educational background.
3 A. Starting with high school, I attended a private Catholic high
4 school by the name of St. Pius X High School. Prior to that, I attended
5 Catholic grade school from kindergarten to 8th grade. After high school,
6 I did attend a trade school by the name of TVI. It stands for Technical
7 Vocational Institute. It's like a junior college, per se, and I did take
8 classes in the fire science technology field, and after that I did attend
9 New Mexico State University
11 Q. Now, first of all, if we could back up for a little bit. With
12 respect to your -- and I'll get back to the post-secondary school and the
13 Technical Vocational Institute that you attended. First of all, where is
14 that institution located?
15 A. It's located also in Albuquerque
16 Q. And with regard to that particular school, what years did you
17 attend that learning institution?
18 A. I believe it was 1992 to approximately 1994, and it was
19 part-time. I also held a full-time job at that time.
20 Q. And you indicated that you were doing the fire sciences technical
21 field. Could you describe for us some of the specific courses of study
22 that you followed at that institution, the course-work that you
24 A. Yes, sir. It's quite a large array, from fire tactics, how to
25 actually extinguish fires to fire prevention, how to prevent individuals
1 from starting fires, along with sciences like chemistry and physics,
2 including math and English also.
3 Q. And now moving along to the New Mexico State University
4 ask you with respect to that learning institution, what years did you
6 A. It would have been the -- I believe it's the fall of 1996 through
7 the fall of 1998, and, again, it's a wide range of classes to include
8 building fire sprinkler systems, fire prevention; also, sciences along
9 with emergency medical training.
10 Q. Thank you, sir. And with respect to that institution, again, I
11 have to ask you, were you a full-time or part-time student, and if not,
12 what other job were you doing to occupy your time?
13 A. During my course of study at New Mexico State University
14 1996 through 1998 I did study part-time at the university because I did
15 hold a full-time position with the Los Cruces Fire Department as a
16 full-time professional fire-fighter.
17 Q. And we'll get to your employment in the various fire departments
18 that you have served in a moment. I'm now trying to finish up with your
19 education. I'd like to -- one moment.
20 MR. IVETIC: It's my understanding that this exhibit that we had
21 scanned in yesterday is not yet made its way into the released e-court.
22 The administrators have not uploaded it, so as to permit me to release
23 it, Your Honours. For the time being, I'd like to have this hard copy of
24 the last page of that exhibit put up on the ELMO just for purposes of
25 allowing us to follow along, and then hopefully the problem will be
1 solved in the interim as I communicate with persons outside of this
2 courtroom to try to get that accomplished.
3 Q. Sir, I believe what will be coming up on the ELMO as soon as
4 the -- sir, I believe what's coming up on the ELMO ought to be -- there
5 we go. Could you tell us, what is this document that you provided to me
6 yesterday in the course of our preparations for today's testimony?
7 A. This is my most recent transcript from New Mexico State
8 University --
9 Q. Okay.
10 A. -- and it shows all my hours. If I move it up, right there at
11 the bottom, I believe it's a total of 58 hours and a cumulative GPA of
13 Q. Now, sir, with respect to the cumulative GPA, first of all, for
14 those persons in the courtroom who may not be familiar with the American
15 scholastic method of ascertaining performance at the academic level, what
16 is the significance of the grade point average of 4.0 and the grades of A
17 that are listed for the various courses that you took at New Mexico
18 Statute University
20 A. It's the best grade. It's a letter system along with a number
21 system. A, the letter A, is, of course, the best grade you can get, and
22 it's given the number value of 4; B would be 3; C would be 2; D would be
23 1; and F, which also stands for failing, equals 0. So on this
24 transcript, you can see all grades were A, which equals a 4.0 average.
25 Q. Thank you.
1 MR. IVETIC: Your Honours, I'd like to seek your assistance as to
2 what I should do. Should I introduce this exhibit stand-alone and wait
3 for the others to get into e-court? This is electronically part of a
4 larger batch of some 52 or three documents, of which I'll only be going
5 through a handful with the witnesses and the rest would be tendered to
6 the Chamber's -- I don't know which is more convenient.
7 JUDGE ROBINSON: Introduce it now.
8 MR. IVETIC: I would introduce this as the next available 1D
9 exhibit, Your Honours.
10 THE REGISTRAR: Exhibit 1D159, Your Honours.
11 MR. IVETIC: Thank you.
12 Q. And now, sir, did you in fact obtain a degree from this
13 University and if not, why were your studies interrupted?
14 A. I did not obtain a degree. I did move from Las Cruces,
15 New Mexico, to Albuquerque
16 department at the end of 1998, so I did not finish my schooling at
17 New Mexico State
18 Q. Now, sir, I understand that in addition to your formal academic
19 education that we've summarised and gone through now that you have had
20 employment experience and training specific to your profession and line
21 of work. I would, therefore, at this time like to go through some of
22 that, and in order to assist us, I believe I would like to have 1D22-0614
23 put up on the e-court screen. And sir, what hopefully will be coming
24 up -- no, this one as well. All right. One moment, please.
25 Sir, what I had hoped to bring up was a copy of your curriculum
1 vitae or resume. We'll get that once it comes up, and I'm just going to
2 forge ahead asking you questions about it.
3 Now, first of all, one of things I'd like you to explain for us,
4 where is the first fire department that you worked for that you mentioned
5 at -- that you were working at while attending college?
6 A. The first fire department I was employed at was the city of
7 Las Cruces Fire Department, and that's in southern New Mexico. I was one
8 of 12 people selected out of approximately 500 to be hired and start a
9 full-length training academy.
10 Q. Okay. And with regards to the Las Cruces Fire Department, could
11 you tell us, how many persons did that fire department employ during the
12 time period that you were an employee of the same?
13 A. It was approximately 100 to 120 employees. It's been ten years
14 since I've left, so I don't quite remember.
15 Q. And with regard to the community that you served while a member
16 of that fire department, what kind of community did you serve in terms of
17 the number of residents?
18 A. It was approximately 100.000 people lived in the city limits of
19 Las Cruces.
20 Q. And for how long? How many years did you serve as a member of
21 that fire department in Los Cruces?
22 A. Slightly less than three years. It was end of January 1996 when
23 I was hired, and when I left it was beginning of December 1998.
24 Q. And now for those of us that are laymen, that are not fire
25 protection professionals, could you describe for us your basic duties and
1 responsibilities while you were employed at this fire department in
2 Los Cruces, New Mexico.
3 A. My basic normal, everyday duties were to respond to all fire and
5 type of incident where anyone gets hurt, whether it be a vehicle
6 accident, a fall, a trip; any type of structure fire; wildland fire;
7 vehicle fire; any type of emergency service that was required -- that
8 required the fire department, we would respond, including protecting the
9 aeroport. That was one of my specialties while a member of the
10 Los Cruces Fire Department. I did pursue above and beyond training while
11 I was there to include 96 hours of training at one of the United
12 States' largest aeroports, which would be the Dallas Fort Worth
13 International Airport
14 train firemen from all over the country, all over the world because
15 they're a highly-trained aeroport fire department.
16 Q. Thank you. Just waiting for the translation to catch up with us.
17 Now, you mentioned -- and I want to go into your training a little bit
18 now. You mentioned earlier in your introduction to your employment if
19 this fire department that you attended a 12-week academy. Could you tell
20 us a little bit about that. How many -- first of all, with respect to
21 the training, was it consecutive weeks or spread out? How did that
23 A. For the Los Cruces Fire Academy
24 there -- it consisted of physical activities, physical training every
25 morning, which consisted of calisthenics, jumping jacks, push-ups,
1 sit-ups, along with runs that extended past ten miles. That was just in
2 the early morning hours. And then we would get ready for our day as far
3 as our book-works. We would be presented classes from everything a basic
4 fire-fighter should know from how to extinguish small fires with
5 extinguishers, to using ropes and knots to hoist large equipment up
6 exterior sides of buildings, and then later in the day we would be called
7 upon to do a practical exercise using what we were just taught, the
8 information we were just taught.
9 Q. Thank you, sir. And how many hours a day were involved in both
10 the physical and the classroom and application portions of this training
11 academy offered by the fire department?
12 A. Physical would be approximately an hour and a half every morning,
13 Monday through Friday, classroom would be approximately four hours in the
14 morning, and the practical application would be approximately four hours
15 every afternoon. And along with these certain blocks of instruction, we
16 would be given written tests that were -- it was required that you pass
17 every test. If you did not pass every test, you would be let go or
19 Q. And what can you tell us about the instructors for that academy?
20 A. The instructors ranged from the rank of fire-fighter, driver,
21 lieutenant, captain, all the way up to the chief of the fire department
22 did instruct classes. They were seasoned veterans ranging anywhere from
23 5- to 20-plus years of service with the fire department.
24 Q. Thank you. And you indicated that you had to take tests and if
25 you did not pass all the tests you would be dismissed. Did you, in fact,
1 successfully complete that academy?
2 A. Yes, sir, I did.
3 Q. And is a diploma or certificate from completion of that academy
4 included in the pact that you provide to me, which is the document that
5 we're having difficulty pulling up on e-court at the moment?
6 A. I believe so.
7 MR. IVETIC: And, Your Honours, with the hope that that document
8 will finally make its way into the system eventually, I would note that
9 at this time that that ought to be page 34 in e-court of that packet, the
10 diploma from the academy.
11 Q. Sir, with respect to that academy, were there persons who didn't
12 finish successfully?
13 A. No, everybody did finish successfully.
14 Q. What can you tell me about any other training you received
15 specific to your job while a member of the Los Cruces Fire and Emergency
17 A. Restating, I did take the basic fire-fighting class at the
19 instructor. CPR stands for cardiopulmonary, and respiratory. I
20 instructed several hundreds of people while -- with the Los Cruces Fire
21 Department. I also obtained certificates from the organisation, it's
22 called IFSAC, which is International Fire Service Accreditation Congress;
23 and the three certificates I obtained from this organisation are
24 fire-fighter 1, fire-fighter 2, and instructor 1, instructor methodology,
25 which means I am a fire service instructor.
1 Q. Does that mean that you are accredited to instruct firemen in
2 terms of performing their professional duties, and do you so -- have you
3 had an occasion to instruct younger firemen?
4 A. Yes, I have, and yes, I do. Currently, I'm not assigned to our
5 training academy, but I have taught at the academy regarding certain
6 specialties I have, like aircraft rescue and fire-fighting.
7 Q. Now, with regard to the time period that you spent at Los Cruces
8 Fire Department, did you have occasion to respond to calls involving
9 fires and see first-hand the after-math and effects of fires on buildings
10 and structures?
11 A. Yes, sir. Often, we responded to house fires, commercial
12 structure fires, church fires, strip-mall fires, so from large fires all
13 the way down to small car fires, yes.
14 Q. And sir, Mr. McCoy, I believe you testified that you left the Los
15 Cruces Fire and Emergency Service Department in December of 1998. Where
16 did you go from there?
17 A. I -- after leaving the Los Cruces Fire Department, I went to the
18 Los Alamos Fire Department, which is in north-central New Mexico. This
19 department offered a little bit more pay but also more opportunity for
20 other training along with I lived in Albuquerque, the city of my birth,
21 and commuted to Los Alamos
22 Q. And I take it that Los Alamos
23 Cruces was or, Dona Ana county.
24 A. Yes, sir. Quite a bit closer, approximately 150 miles closer.
25 Q. And sir, with respect to the fire department at Los Alamos
1 when you were serving there, first of all, what size was the fire
2 department in terms of manpower?
3 A. Approximately 120 uniformed officers.
4 Q. We're talking Los Alamos
5 department, what kind of a community did it serve?
6 A. The community it served -- that we served and protected was a
7 smaller community than Los Cruces in the numbers of people, residents,
8 but in the quality of hazard or the degree of hazard, it was quite a bit
9 higher. Los Alamos County
10 laboratory, United States Government Department of Energy's National
11 Laboratory, and we did protect all buildings for the DOE, Department of
12 Energy, at this site. These buildings included plutonium facilities,
13 uranium facilities, along with tritium facilities.
14 Q. And sir, was there any kind of special theme about your
15 employment there, any kind of special security clearance that you had to
16 apply for and be accredited for in order to operate in securing and
17 investigating fires at these facilities?
18 A. Yes, sir. Every fire-fighter with the Los Alamos Fire Department
19 is required to obtain a Q clearance. It's equivalent to -- or it is a
20 top-secret clearance, but it's equivalent to a Department of Defence
21 top-secret clearance. They do a thorough background check that goes back
22 15 years, and basically your background has to be spotless.
23 Q. And with respect to this particular fire department at the
24 Los Alamos County
25 fire-fighter in that department?
1 A. I moved from Los Cruces to the Los Alamos Fire Department in
2 December of 1998, and I worked through October of 2001. So again,
3 slightly less than three years.
4 Q. And with respect to your responsibilities and duties at this fire
5 department, could you briefly give us an overview of that?
6 A. Again, very similar to Los Cruces. We were required to respond
7 to all medical emergencies whether they arose from a sick individual,
8 caring for the elderly, or a traumatic injury, like a car accident, or
9 fires, such as structure fires, vehicle fires. This -- the geographic
10 area where Los Alamos
11 50.000-acre wildfire in the summer of 2001 that did threaten and burned a
12 few structures on the national labs along with 250 structures, which are
13 houses, in one night because of this wildfire.
14 Q. And did you render your services in regards to trying to contain
15 that fire and salvage buildings?
16 A. Yes, sir. We worked shift-work for seven days straight to
17 protect and serve the community. My other duties above the beyond the
18 regular firemen duties were to fix and repair or rebuild - which would be
19 also repair - our self-contained breathing apparatus. I was the only one
20 in the whole department that did this. It's a lot of responsibility.
21 Everybody wears a self-contained breathing apparatus when they enter a
22 structure fire, and it's a lot of responsibility to repair these and send
23 another fireman into a fire with temperatures reaching 5, 600 degrees
24 with a piece of equipment on their back that you repaired.
25 Q. Let me just ask you this one follow-up question as to that before
1 moving on. Did you have to be specially trained in order to be qualified
2 to deal with that self-contained breathing apparatus, and if you could
3 tell us who -- what entity is behind the technical in that apparatus.
4 A. Yes, sir. I did attend a training school to be able to repair
5 this apparatus, and the brand name is Scott. It's a Scott Air-Pak,
6 S-c-o-t-t, and they're owned by Tyco right now, but the technology, the
7 pressure-reducing technology was created or invented by NASA.
8 Q. And for those unfamiliar with NASA, what agency is that?
9 A. It's the aeronautical agency for the United States.
10 Q. Now, with respect to your time-period spent with this fire
11 department, did you have any additional trainings or academies similar to
12 that you had at Los Cruces or in addition to what you had at Los Cruces?
13 A. It would be in addition. It wasn't an entry-level fire academy.
14 It was a fire-fighter 2 or advanced training academy, and they did
15 observe my time and my experience with a similar fire department; and I
16 was hired as a fire-fighter 2. At the same time, there were fire-fighter
17 1s who had less training and cadets who had no training hired at the same
18 time as me. When I started the Los Cruces Fire Department, I did have
19 some schooling pertaining to the fire service but no work experience, so
20 I was hired as a cadet - that's with Los Cruces - meaning that I did have
21 a complete, full-length training academy under my belt. I did -- I was
22 able to be hired as a fire-fighter 2 or a fireman with experience for the
23 Los Alamos
24 was advanced fire training.
25 Q. Okay. And with respect to that academy, I want to ask you, can
1 anyone go through that academy, or is there a selection process for the
2 same, and if so, could you tell us what that selection process was and
3 how many persons were selected?
4 A. There is a selection process, and have you to interview along
5 with produce resumes and prior training. If you were -- if you didn't
6 have the experience or the training necessary, you wouldn't qualify for
7 the fire-fighter 2. They would put you at a lower level, which would be
8 the fire-fighter 1, or the cadet level with virtually no experience. And
9 out of all the people that applied, there was only five people that were
10 selected for a fire-fighter 2 position.
11 Q. And again, was there testing involved as part of this academy,
12 and did you, in fact, successfully complete that academy?
13 A. Yes. They were testing on a weekly basis along with practical
14 application and written tests. You -- there was a hundred percent
15 success rate. You had to pass every test. If not, you would be
17 Q. Thank you.
18 MR. IVETIC: And for the record, once we get the exhibit in
19 e-court, I believe it'll be page 22 that is the certificate of completion
20 for the fire-fighter 2 academy at Los Alamos. Just to verify with the
21 witness --
22 Q. Sir, was that February of 1999 when you completed that academy?
23 A. Yes, sir.
24 Q. Okay. Ah, we have it up in e-court now. Is this the certificate
25 of completion that we have for the Los Alamos Fire Department Academy,
2 A. Yes, sir. It's signed by the chief, Douglas MacDonald.
3 Q. Okay.
4 MR. IVETIC: And if we can now have on the screen on one side,
6 Q. Hopefully, that should be your CV. Perfect. And sir, if you
7 could look at this, does this appear to be an up-to-date and complete
8 copy of resume or curriculum vitae listing your various accomplishments
9 and employment?
10 A. This lacks some of my certificates that I received recently, but
11 it's accurate and correct.
12 MR. IVETIC: Thank you. And with the caveat that we'll be going
13 to address some of those more recent certificates a bit later in your
14 background testimony, Your Honours, I would ask to tender 1D22-0614, the
15 document that is tonne left of the screen, as the next available
16 1D exhibit number.
17 JUDGE ROBINSON: Yes.
18 THE REGISTRAR: Exhibit 1D160, Your Honours.
19 MR. IVETIC: Thank you, Madam Registrar.
20 Q. Now, sir, looking at the CV that we now all have access to on the
21 screen, it says that in 2001 you moved to the fire department of the city
22 of Albuquerque, New Mexico, and that is -- is that still where you are
23 currently employed?
24 A. Yes, sir. That is correct.
25 Q. And can you tell us with respect to this fire department in
3 A. There is approximately 700 uniformed fire department employees
4 for the city of Albuquerque
5 Q. And again, to put in perspective for us the employment at this
6 fire department in relation to your previous employment, what kind of
7 community in terms of the number of residents is covered and served
8 within the jurisdiction of the Albuquerque Fire Department?
9 A. The city of Albuquerque
10 a large city. We have over -- I believe it's 22 fire stations, and we
11 have quite a spectrum. We have Haz-Mat teams, he have heavy technical
12 rescue teams. We have swift water rescue. We have a river that runs
13 through town along with many aurials that flow during heavy rains, and we
14 have many areas of specialties within the city and fire department.
15 Q. Now, sir, let me just skip ahead just briefly to try and tie
16 things together here. You've indicated that there are 22 fire stations
17 and approximately 700 persons employed in this fire department. Could
18 you tell us your current position within that fire department, and how
19 many persons in the entire Albuquerque Fire Department system are trained
20 for and do the job that you do?
21 A. My current position with the Albuquerque Fire Department is that
22 of fire/arson investigator. There's seven individuals that do exactly
23 what I do, so that's 1 percent of the fire department is qualified and
24 has the training necessary to investigate fires correctly.
25 Q. And just so we can better understand your position within the
1 system, could you tell us, in terms of calls you might be asked to
2 respond to, do they come from a particular section, or do you serve the
3 entire jurisdiction of 600.000 and the entire area covered by the 22 fire
4 stations that make up the Albuquerque Fire Department?
5 A. There are times that I'm the only arson investigator on duty to
6 protect this city of 600.000 people. It's a lot of responsibility.
7 There could be three or four fires in one night that I have to
8 investigate. It makes for a long night, but the city has entrusted me
9 with the responsibility of doing the task for solving all the arson
10 crimes in the city.
11 Q. Thank you. And we'll get back to your investigative -- arson
12 investigative work in a second. I'd just like to finish up with the
13 other training. Now, when you came to the Albuquerque Fire Department,
14 did you have to go attend an academy similar or in addition to those that
15 you had already attended in your prior posts at the Los Alamos and
16 Las Cruces Fire Departments?
17 A. Yes, sir, I did. It was another lateral academy. Again, this
18 academy was not for an individual without -- or with no fire training.
19 It was an individual who met the requirements of a trained fireman, and
20 they built upon the knowledge that we already had; and it was in
21 approximation about half the length of a normal academy, which I believe
22 this particular academy was nine weeks, and a full-length cadet academy
23 is 18 to 20 weeks.
24 Q. And again, with respect to this particular academy, from where
25 were the instructors drawn from, what specialties or experience?
1 A. From the ranks of the fire department. Again, we have
2 driver-operators, driver-engineers that taught some classes, lieutenants
3 and captains that taught others, battalion chiefs and commanders that
4 taught certain classes, but all employees of the fire department. Some
5 of the specialties was Haz-Mat, swift water rescue, high- and low-anger
6 technical rescue, which would include rope rescue.
7 JUDGE ROBINSON: What's Haz-Mat?
8 THE WITNESS: Haz-Mat is Hazardous Materials Training.
9 MR. IVETIC:
10 Q. Thank you. And did you successfully complete this academy, and
11 did you obtain a degree or certificate with respect to the same?
12 A. Yes, sir. I did successfully complete and along with the other
13 academies. Very strict, very stressful. If you fail one test, you're
14 terminated. I'm still employed there, so I did pass all the tests.
15 Q. Thank you. And now, the bottom of this CV, if we could scroll
16 down to it, I believe has a rendition of some of the certificates that
17 you have achieved. You indicated there are some that are not appearing
18 on this list.
19 MR. IVETIC: If we can go to Exhibit 1D -- pardon me, not
20 exhibit, document 1D22-0615, and I believe it ought to be page 2 of that
21 document, so it should be 0616, I think.
22 Q. Sir, is this one of the certificates that is not currently
23 reflected on the resume that was submitted, I believe, about a month or
24 two ago?
25 A. That is correct, sir.
1 Q. And what can you tell us about the subject matter of this
2 particular -- well, first of all, let's start -- the International
3 Association of Arson Investigators. What kind of an organisation is
5 A. It's an international association, obviously, just by the name,
6 but it has certain training, materials, classes, seminars; and it's
7 tailored to the arson investigator.
8 Q. And is this in the nature of ongoing training to keep you current
9 with all trends in your profession?
10 A. Yes, sir, that is correct. Again, most of my other certificates
11 are 80 hours, 96 hours, 120 hours. This is a short-tested training
12 programme, but it is continuing education in the arson field.
13 MR. IVETIC: And if we can go to the next page, which should be
15 Q. And sir, is this another of the certificates that does not appear
16 on resume relating to your ongoing -- ongoing training in your field?
17 A. Yes. This is another short -- it's a 4-hour tested programme,
18 and I am a member of in association, this IAAI, or International
19 Association of Arson Investigators, and --
20 Q. For how long -- pardon me for interrupting. For how long have
21 you been a member of that association?
22 A. Approximately two years.
23 Q. And with respect to this particular tested programme, what was
24 the subject matter of the same? If you could describe it for us.
25 A. Managing complex fire scenes. This entailed dealing with
1 multi-jurisdictions, multi-agencies, large scenes -- scenes that have --
2 fire scenes that have resulted in fatalities and how to process them
3 correctly in terms of evidence and autopsies and coroner reports.
4 Q. Thank you.
5 MR. IVETIC: And if we can go to the next certificate in line,
6 which would be 1D22-0618, I believe, 7 or 8, actually. 7, I think.
7 Q. And sir, is this another certificate that is not reflected in the
8 resume that was previously tendered?
9 A. That is also correct, sir.
10 Q. And just briefly, is this also on the topic of investigating
11 suspect fires for purposes of determining the cause?
12 A. Yes. The title is Investigating Fatal Fires. Fatal fires can be
13 accidental, but they also can be incendiary in nature.
14 Q. Okay. We'll get to the specification of your arson/investigative
15 duties in a moment. I'd just like to finish up with your training. Now,
16 the certificates that you have indicated, and you've indicated that some
17 of the academies and courses you took were 80 hours, 100 hours, 40 hours.
18 We have here the packet that you provide to me, which was
19 1D22-0615 all the way through 1D22-0665, some 53 -- or actually, it looks
20 like it's 50 documents. With respect to that packet of certificates and
21 all the course-work that you undertook while currently employed, how many
22 total hours of training have you undergone with respect to dealing with
23 fires and the aftermaths of fire?
24 A. I would estimate between 2.000 and 3.000 hours, if not more.
25 There's one certificate in this packet that is a certificate for my
1 completion of my police academy, which is 800 hours. That's one
2 certificate by itself.
3 Q. Okay. And if we can -- my copy's falling apart as we speak. I'd
4 like to -- well, it's in there.
5 MR. IVETIC: What I think I'm going to do, Your Honours, of
6 course, subject to any objections from the other side, I would tender
7 this packet of certificates, diplomas, et cetera, that is 1D22-0615, up
8 through 1D22-0665, tender that all as one group exhibit rather than
9 individual exhibits to assist the Court, for the Court to have the access
10 to these materials; and I might highlight one or two others individually,
11 but I would seek to introduce just the one group packet.
12 JUDGE ROBINSON: Yes, Mr. Groome.
13 MR. GROOME: Your Honour, I don't object per se, but I just would
14 bring to counsel's attention Mr. McCoy's social security number is on the
15 certificate of completion. I'm sure we wouldn't want Mr. McCoy to be the
16 victim of identity theft for having testified here, so perhaps if that
17 one document were sealed or redacted, with you might help Mr. McCoy avoid
18 problems in the future.
19 MR. IVETIC: I have no problem with that suggestion, Your Honour.
20 JUDGE ROBINSON: Yes, we'll do that.
21 MR. IVETIC: Thank you.
22 THE REGISTRAR: Exhibit 1D161, Your Honours.
23 MR. IVETIC: Thank you, Madam Registrar.
24 Q. And then to just finish up on that before going on to your -- to
25 your arson investigative skills and training, with respect to this
1 packet, at page 13 we have a commendation from a member of United States
2 Congress to you. At page 14, we have a resolution from the New Mexico
3 State Legislator commending your work. At page 15, we have a certificate
4 award from the county of Los Alamos for your work; and at page 16 in
5 e-court, we have a certificate of valour from the United States
6 Department of Energy among your many certificates and commendations. I
7 want to ask you about what is not reflected in there, and that is have
8 you ever had any negative assessments? Have you ever been reprimanded,
9 disciplined, or otherwise sanctioned in the course of your employment and
10 the carrying out of you professional duties?
11 A. No, sir. In my 13-plus years as a fireman, as a fire-fighter
12 employee, I have never been reprimanded, disciplined, written up in any
13 negative manner. Furthermore, any employment that I've ever had prior to
14 the fire service I've never been written up, reprimanded, or terminated.
15 Q. And now, I'd like to turn to your arson investigator -- I should
16 say investigator/suspect arson duties. Could you tell us how and when
17 you obtained the position of fire/arson investigator for the Albuquerque
18 Fire Department as you have mentioned in your testimony here today.
19 A. In 2006, the spring of 2006 the fire department announced
20 vacancies in the arson and fire investigation division. To qualify for
21 these two positions, you had to be a promoted driver, a driver-engineer.
22 It's a tested position. It's the first position -- first promotion up
23 from fireman, from fire-fighter, and it's a written test that tests your
24 ability to drive a fire truck, drive the ladder truck, and along with
25 knowledge of various fire scenes. And in 2005 I did test and pass the
1 promotional process for driver-engineer; and, therefore, I was able to
2 apply for the position of fire investigator, and there were approximately
3 ten people that applied for this position, and there were two people
4 selected, and, of course, I was one of them, and that was the spring of
6 Q. Now, you've detailed for us the testing process and the selection
7 process and that you were one of ten applicants who did -- one of ten
8 applicants who applied, one of two who actually succeeded in being
9 appointed to this level. After doing your testing, was there any
10 additional training or academy that you had to successfully complete in
11 order to become employed within the position of fire/arson investigator?
12 A. Yes. The first process was a thorough background check, very
13 similar to the background check for my Department of Energy queue
14 clearance. Very thorough. I believe it also went back 15 years, and the
15 reason for that was to be accepted into the state of New Mexico Law
16 Enforcement Training Academy
17 and that consisted of a full-length 21-week police academy.
18 During this academy, I learned everything that a front-line
19 patrolman learns, and I did pass every test again, and upon completion
20 did receive a certificate stating the fact that I am, in fact, a law
21 enforcement officer, which assists me in doing my job as a fire
23 Q. And just to clarify for us, is that the 800-hour course, this
24 being the police academy that you mentioned earlier?
25 A. Yes, sir, that is correct.
1 Q. And in the course of performing your duties for the Albuquerque
2 Fire Department, are you authorised and powered to carry a firearm and
3 perform arrests and other police functions in addition to your fire
4 prevention and investigative duties?
5 A. Yes, sir, that is correct. I am a full-fledged law enforcement
6 officer. I am commissioned by the city of Las Cruces -- excuse me, the
7 city of Albuquerque
8 department to carry a weapon and perform duties as a law enforcement
9 officer. In the city of Albuquerque
10 arrested individuals for this crime. I do carry a weapon. I do carry a
11 sidearm. I am required to wear a vest, a bullet-proof --
12 bullet-resistant vest on a daily basis along with handcuffs to arrest.
13 JUDGE ROBINSON: Are they arrests that you make relating to fires
14 or just general?
15 THE WITNESS: Yes, sir. I have arrested I believe three or four
16 individuals relating to fire. Again, fire, arson in the city of
18 along with recently an individual pulled a weapon out on me, a gun. I
19 drew my weapon out on him, and he was arrested by myself and my superior
20 officer for assault on a peace officer. So I have arrested for other
21 things also.
22 MR. IVETIC: And --
23 JUDGE ROBINSON: Mr. Ivetic.
24 MR. IVETIC: Thank you, sir. Thank you, Your Honour.
25 Q. With respect to when you get called out to a suspected scene of a
1 suspicious fire or a suspected arson and you arrive, would you normally
2 arrive while other fire and/or police personnel are still on the scene,
3 and if so, what is your authority as to and over them?
4 A. Upon my arrival on any fire scene, I speak to the incident
5 commander, who is the rank of battalion chief or battalion commander with
6 the Albuquerque Fire Department, and he relays any pertinent information
7 to me. Then at that point, I take over the scene. I am in charge of the
8 scene. Anything I need, anything I say goes, whether it's from the
9 police department, from the fire department, or other agencies involved
10 such as utility companies or even Bernalillo County
11 Q. And one thing that I skipped was -- I don't know how it is
12 exactly in the fire department, but could you explain to us the
13 situation. Are you currently -- do you currently hold a rank, or what is
14 the situation with respect to that?
15 A. Earlier, I stated I have tested for the rank of driver, which I
16 currently am, driver-operator, driver-engineer. If I was not in the fire
17 investigation office, I would be driving a fire truck. Although I have
18 recently tested for the rank of lieutenant and I did pass the test; I am
19 currently on a waiting list to get promoted to the rank of lieutenant.
20 On my curriculum vitae, there was a section in there where I did upgrade
21 from driver to the rank of lieutenant. We call it acting lieutenant for
22 quite an amount of time. I believe it was three or four months
23 consecutive, so I do have supervisory experience.
24 Q. Now, in the standard operating practice and procedure of the fire
25 department that you're employed by, could you detail for us the method of
1 work of yourself and fellow fire investigators, that is to say, how is it
2 that your shifts run?
3 A. My -- I do work shift-work, and we work 48 consecutive hours. If
4 my shift starts on a Monday morning at 8.00 a.m., I work all day, all
5 night Monday until 8.00 in the morning Tuesday and continuing all day
6 Tuesday until 8.00 Wednesday morning. I am relieved by another
8 Q. And with respect to calls to go out and investigate a scene, a
9 location for a suspicious fire, how many personnel from your
10 investigative/arson department would report to a scene? What's the
11 standard procedure?
12 A. Standard procedure if nobody is off, if nobody is on holiday
13 would be two -- two individuals, two fully trained arson investigators.
14 Q. And could you detail for us in that line of work based upon your
15 experience and training, when the two investigators go on the scene how
16 many -- strike that. What type of determinations do you make? That is
17 to say, how many different classifications or types of causes are there
18 for fires that you've been trained to identify?
19 A. Through all my training and experience, there are only four
20 fires, four classifications or fires. The first in no particular order
21 would be incendiary, which is with ill-intent to burn the property of
22 another; accidental, which would include all accidental fires,
23 malfunctions of electrical equipment, mechanical equipment, candles.
24 Candles are a big reason for accidental fires, along with natural or
25 God-created fires, which would be lightening. It's just a
1 classification. And the last would be undetermined.
2 Q. And yourself and your colleagues in the department that do this
3 type-work, search -- the six other individuals that do this kind of work,
4 do you operate under a set of guidelines or rules when you respond to
5 calls and investigate suspicious fires?
6 A. Yes, sir. The Albuquerque Fire Department has its own specific
7 guidelines relating to the fire investigative field, along with -- we use
8 a guidebook called, it's the National Fire Protection Association,
9 NFP 8921, and it's a guide. We refer to it as a guide.
10 Q. And with respect to this publication, NFP 8921, I believe you
11 showed me a copy if it yesterday while we were preparing, is this a -- is
12 this a guide that is distributed within your industry beyond Albuquerque
13 that is to say, is it in use in other fire departments, and is it
14 accepted in the profession?
15 A. Yes. It's widely accepted throughout our profession. It is my
16 opinion that most municipalities throughout the United States, including
17 federal agencies, use this guide along with -- it's accepted as an
18 international guide also.
19 Q. Thank you. Now, in the report that you did specifically for the
20 incidents that are of interest to this Trial Chamber, which we'll get to
21 in a little bit - I'm waiting to get the number for that to see if that's
22 been released into e-court - but you mentioned that you approached the
23 scene, and I believe your colleague also indicated he approached the
24 scene in a systematic approach. Could you describe for us based upon
25 your knowledge, experience in the field what a systematic approach is to
1 examining a structure that is -- that you are investigating for a
2 suspected fire and/or arson?
3 A. A systematic approach in my opinion is an approach -- also the
4 opinion of the guide, is an approach in a systematic manner that's the
5 exact same every time, so you train yourself not to miss anything, and
6 it's also moving from the least burnt portion of the structure to the
7 most severely destroyed portion of the structure, and it's done in a
8 systematic fashion, always very similar to exactly the same -- as close
9 to the same every time. Every building's different, but it's done in a
10 systematic fashion.
11 Q. And in order to examine a site in a systematic fashion, what
12 would be the first steps or the first -- the first examinations as to
13 that site? For instance, if we take Pionirska, for instance, what did
14 you do when you first approached that site?
15 A. First and foremost, being a law enforcement officer, I make sure
16 the scene is safe. There's no threats to myself or my colleagues. Then,
17 I make or do a 360 of the building, meaning I walk completely around the
18 building so I know exactly what I'm looking at, what wall I'm looking at,
19 what side of the building I'm looking at, and if there are possibly any
20 threats unobstructed portion of the building, and while I'm doing my
21 initial 360 or walk-around, I photograph the structure in this fashion,
22 also, so I have a complete 360 photographed documentation of this
24 Q. I see we're still having difficulty with your report. Sir, do
25 you have a copy of your report with you today? Maybe we can
1 short-circuit this somewhat.
2 A. I believe so.
3 Q. If you can pull that out, sir, and I'd like to have that -- with
4 the assistance of the court usher, have that report put on the ELMO for
5 everyone to follow along.
6 MR. IVETIC: And while we're waiting for that, Your Honours,
7 we've gone through the history and training and educational and
8 professional experience of Mr. McCoy. At this time, I would tender him
9 as an expert for determining -- for talking about fires and the effects
10 of fire upon structures and materials and investigation of suspected fire
12 JUDGE ROBINSON: Mr. Groome?
13 MR. GROOME: Your Honour, before the Chamber would take the step
14 of making a finding that this person, Mr. McCoy, has expertise, the
15 Prosecution would request an opportunity to ask him some questions so
16 that all the relevant information with respect to whether he should be an
17 expert is before the Chamber. In the States, it's commonly called a
18 voir dire. I know in other systems they may have different names for it,
19 but I think before the Chamber makes that determination, each party
20 should have an opportunity to ask the questions they believe are relevant
21 to that particular point.
22 MR. IVETIC: That's perfectly acceptable, Your Honours, and I
23 believe we've been following that the Prosecution gets the opportunity to
24 voir dire after we finish with the witness. If that's how we're going to
25 proceed with this one, I can move on. I'm at Your Honours' convenience,
2 MR. GROOME: Your Honour, I would have no objection to asking my
3 questions in my cross-examination as long as the Chamber were to reserve
4 its finding as to whether they're going to treat Mr. McCoy as an expert.
5 JUDGE ROBINSON: We'll do that.
6 MR. IVETIC: Thank you, Your Honour.
7 [Trial Chamber and legal officer confer]
8 JUDGE ROBINSON: Just a minute.
9 MR. IVETIC: Yes.
10 [Trial Chamber confers]
11 MR. GROOME: Microphone, Your Honour.
12 [Trial Chamber confers]
13 JUDGE ROBINSON: Mr. Groome, have you not already challenged the
14 qualifications of this person as an expert under Rule 94 bis?
15 MR. GROOME: Yes, Your Honour. We notified the Chamber that we
16 were not accepting his expertise, and given the adversarial nature of
17 these proceedings, before the Chamber would reach a final determination
18 about whether he is an expert, implicit in the right to proceed in that
19 way is to ask questions so the Chamber can have all the relevant
20 information before it.
21 Otherwise, it's no right at all to challenge his expertise. I
22 know the Chamber in its ruling reserved its decision about whether it
23 would accept his report as an expert report, but again, if the Chamber is
24 to designate him as an expert now and permit him to give expert opinions
25 without the Prosecution having any opportunity to draw out important
1 information relevant to that, then the point is moot at the time I'm able
2 to challenge it.
3 JUDGE ROBINSON: I want to find out exactly what the Chamber's
4 ruling was.
5 MR. IVETIC: I don't know if it helps, Your Honour, but I think
6 we're about 5, 7 minutes away from a break.
7 JUDGE ROBINSON: We'll take the break now, and I'll have that
8 matter clarified.
9 --- Recess taken at 10.16 a.m.
10 --- On resuming at 10.46 a.m.
11 JUDGE ROBINSON: Mr. Groome, I have before me the decision of the
12 Chamber of the 4th of March, and in that decision we ordered that a
13 number of persons appear before the Chamber as expert witnesses, and
14 included in that list is Martin McCoy, so the Chamber has already made a
15 determination that this witness is an expert. What we did, however, do
16 is to reserve our decision regarding the admission into evidence of the
17 reports of those persons, and his report is among those in respect of
18 which the decision as to their admission is reserved.
19 MR. GROOME: Yes, Your Honour. The only response I would have is
20 that Mr. O'Donnell was also one of the people in that decision. I
21 reviewed it over the break, and we actually went through the formal
22 process in his testimony where he was formally tendered as an expert. I
23 didn't contest it, so I didn't ask for a voir dire at that time. I do
24 recognise Your Honour has accurately read that decision. I guess what
25 happened with O'Donnell and, I guess, my sitting here wondering what was
1 the relevance of the last hour and a half if it wasn't about getting out
2 his qualifications and vetting him and getting to a determination if he
3 was already an expert, if he was already an expert -- and I believe there
4 are some questions. And maybe it's a question of what kind of expertise
5 he has, Your Honour. I fully accept that he is a fine fire-fighter. I
6 fully accept that he did a fine job in photographing evidence at the
7 scene, but the question that I have is whether he's really qualified to
8 express an opinion about origins of a fire that started with an
9 explosive. I was thinking over the break the analogy that I have and
10 would offer to the Court is investigators specialise in different fields
11 and one of those might be a homicide investigator, and they are specially
12 trained --
13 JUDGE ROBINSON: I perfectly understand the point you're making.
14 I perfectly understand it, but are you asking us to reconsider our
15 decision, then?
16 MR. GROOME: If that's what I need to do formally, Your Honour, I
17 would ask that it be reconsidered. And the other point that I want to
18 make, Your Honour -- well, just to finish my point, there is a difference
19 between the homicide investigator and the coroner who makes the
20 determination as to the cause of death. It seems when I look at the two
21 resumes of Mr. McCoy and Mr. Dimas, they have the identical expertise, so
22 is there a difference between their expertise? Why are two seemingly
23 very similar people being called to give expertise? So I believe I'm
24 entitled to an opportunity to explore these issue and make submissions to
25 the Court and whether Mr. McCoy is qualified to give that opinion.
1 Again, I do not challenge that he's a fine fireman, and he's done an
2 excellent job in documenting the evidence he found when he examined the
3 scene at Pionirska. It's just whether he's able to make statements about
4 the origin of certain observations he's made, I would challenge and seek
5 to ask him questions about it.
6 JUDGE ROBINSON: Did you not make written submissions challenging
7 his expertise prior to our decision?
8 MR. GROOME: Yes, Your Honour, based on the resume and the report
9 that we had, we did make those. We did not have the opportunity to speak
10 with him, or we did not have the 50 certificates, Your Honour -- for
11 example, you know, if I give a very practical thing, last night we
12 received the 50 or so certificates. It only in looking at them this
13 morning that I realised that not one of them is for any kind of
14 explosion-based fire. They're all qualifications but certainly nothing
15 that's related to this particular case.
16 JUDGE ROBINSON: Mr. Ivetic, I had earlier indicated that you'd
17 have no objection to Mr. Groome asking questions relating to the
18 expertise of the witness.
19 MR. IVETIC: Voir diring as to the applicability of this
20 gentleman's experience and knowledge as I believe was the case with other
21 experts that have come here. Your Honours, we intended to, with our
22 presentation, show this man's experience with fires. He's had first-hand
23 experience with fires from 1996 onwards, and now is in a position where
24 he investigating potential fires; and we believe that does qualify him as
25 someone to render an opinion, and we want to show the Court when he gives
1 an opinion or says something what it is based upon, this years of
2 experience. Working backwards from Mr. Groome's submission now as to why
3 there's two persons, that's the area I'm about to ask him about, why
4 there are two persons. It's actually -- the evidence I will elicit will
5 be in that regard.
6 JUDGE ROBINSON: Just a minute, please. We are going to consider
7 the question raised by Mr. Groome.
8 [Trial Chamber confers]
9 JUDGE ROBINSON: It seems to the Chamber that Mr. Groome has
10 raised an interesting point, and the Chamber would in the interests of
11 justice allow Mr. Groome to pose questions relating to the expertise of
12 this witness. However, it seems to us that that should be done
13 immediately because if a determination is made that he's not an expert
14 witness, then he would not testify in that capacity. He could testify
15 but as an ordinary witness.
16 MR. ALARID: Just one thing to add, Your Honour, just from the
17 practical side of things. One, the two-man team, and I think Mr. Ivetic
18 was going to touch on that, is sort of a standard operating procedure, as
19 well. But more importantly, and we do take some exception with the
20 theory that Mr. Groome's trying to say that we're presenting, which is
21 that this is an explosive-based fire, we believe that an explosive went
22 off in there.
23 JUDGE ROBINSON: Yeah, we don't need to hear that.
24 MR. ALARID: Okay. Thank you.
25 JUDGE ROBINSON: So we are going to adopt the procedure. Whether
1 you call it a voir dire, I am accustomed to that, I think in the civil
2 law they don't have that system; but in any event, I will allow
3 Mr. Groome now to raise questions, and we make a determination about his
5 MR. IVETIC: If I can and just with leave of the Court ask -- I
6 have a series of six questions that relate to the procedure and customs
7 and practice of this particular investigator in the course of his
8 employment that details how many fires he has investigated, et cetera. I
9 believe that will be helpful for --
10 JUDGE ROBINSON: You spent a long time on his expertise, an hour
11 and a half. You have two or three more questions. Okay. Ask them.
12 MR. IVETIC: Okay.
13 Q. Sir, Mr. McCoy, in the course and pattern of your employment, how
14 many fires or scenes a year and in total have you had an occasion to be
15 involved in from an investigation standpoint?
16 A. Approximately 50 fires a year I respond to. A little more than
17 half, about 30 to 35 fires, I'm the lead investigator. I'm in charge.
18 I'm the one that makes the arrests. I'm the one that takes it to the
19 district attorney's office for prosecution, so approximately 50, a little
20 over 50 fires a year.
21 Q. What about in total during the time-period that you've been
22 employed in as an investigator/arson investigator?
23 A. Since graduating the police academy in December of 2006, I have
24 investigated 60 fires that I was the lead investigator on, that I was in
25 charge, that the city of Las Cruces Fire Department left me responsible
1 for rendering decisions on that case, on those cases, and approximately
2 another 60 that I assisted with photography, with sketches, with peer
3 review and rendering -- assisting the lead investigators, investigators,
4 on rendering decisions for those cases.
5 Q. Thank you, and I believe you meant Albuquerque, I presume,
6 instead of Las Cruces.
7 A. Yes, I apologise.
8 Q. And just lastly, you indicated assisting lead investigators and
9 peer review. Could you explain for us, having in mind Mr. Groome's
10 concern, why two persons were required with similar qualifications to go
11 to the site. Could you explain for us the ordinarily accepted process
12 and procedure in your line of work in that professional community as to
13 how to conduct investigations of suspect investigated sites and the use
14 of two investigators.
15 A. First and foremost, it's scene safety. When I'm sifting through
16 debris on the scene, bending over with my back to a door or window, my
17 colleague will watch. Most -- some arson fires are a result of a crime
18 concealment, and the criminal might return if they see we're in the room
19 where he started the fire. So initially, it is -- the teamwork is for
20 scene safety along with two sets of eyes is better than one. He might be
21 looking high, I might be looking low, and then we'll switch, vice versa.
22 And along with peer review on every scene: What do you see? I see this
23 pattern on this wall. What do you see? I don't see that; I see this.
24 And we come to a consensus -- we make our own decisions, and then we come
25 to a consensus at the end to call the fire exactly what it is.
1 Q. And just lastly, that peer review and that consensus, where does
2 it take place? That is, do you leave the site of an investigation
3 without having a consensus based upon peer review and confrontation?
4 A. No, it does happen on scene. We confer with each other and
5 defend our case. I think it's this because of this because using my
6 scientific methodology, I find patterns on this wall, in opposed to what
7 he says, or if he agrees with me he'll -- we'll confer. We will not
8 leave the scene without making an accurate decision.
9 MR. IVETIC: Thank you, Your Honours. Now I guess I pause for
10 whatever Mr. Groome is --
11 JUDGE ROBINSON: Yes. Before Mr. Groome begins his own
12 examination, Mr. Ivetic, in the Tribunal's case law, an expert is defined
13 as a person who by virtue of some specialised knowledge, skill, or
14 training can assist the trier of fact to understand or determine an issue
15 in dispute. So two questions for you first: What is the area of
16 specialised knowledge, skill, or training that you say this witness has;
17 and secondly, what is the issue in dispute in relation to which his
18 expertise would assist the Chamber?
19 MR. IVETIC: The issue of dispute, Your Honours, goes to the
20 heart of the Prosecution's case as to the Pionirska and Bikavac
21 incidents, as to whether, in fact, the evidence on the site, the physical
22 evidence shows indicia of a probability of fire having occurred on that
23 site or not. The report of this expert and the other colleague that he
24 had doing the peer review with is that at the Pionirska site, there was
25 not a fire inside that room where the witnesses the Prosecution stated
1 that there was a long-burning fire. That's the second wrong.
2 JUDGE ROBINSON: Okay. You have made that clear now.
3 MR. IVETIC: The first point, Your Honour, just for the record so
4 we're complete, given this gentleman's experience dealing with fire, his
5 training and experience preventing fires, the causes of fires, and
6 ultimately now his most current experience, investigating buildings that
7 have been suspected to be subject to intentional fires, he is, we
8 believe, qualified to talk about the physical evidence on the scene and
9 determine for us when we see a picture of black wood, for instance,
10 whether that damage to the wood is caused by fire or something else, that
11 is to say as someone who is qualified to determine the causes of damage
12 to a structure and effects of fire; he can help us and assist us having
13 been on the scene whether, in fact, what we see is evidence of a fire or
14 not, and that would be the submission for this expert.
15 JUDGE ROBINSON: Mr. Groome.
16 MR. GROOME: Yes, Your Honour, before I ask my questions, just
17 related to that point, it's not simply a matter of whether there was a
18 fire in the room because I think Mr. McCoy did find evidence of a fire in
19 the room. It's his conclusion that it was the result of children playing
20 or an individual keeping warm, which is I think the opinion that is
21 really at issue. I don't think it's an issue that something happened in
22 that room of a fire nature, just what was the cause of it? Was it as the
23 witnesses described or something else.
24 JUDGE ROBINSON: Yes.
25 Examination on Qualifications by Mr. Groome:
1 MR. GROOME:
2 Q. So, Mr. McCoy, again, I want to make clear that I have no qualms
3 with your fine service as a fire-fighter or as a fire investigator who
4 has collected evidence and taken very detailed photographs in this case.
5 It is simply about whether you are qualified to be designated an expert
6 and have the status and the ability to give opinions to the Chamber.
7 Now, in transcript page 18, you said that seven individuals do
8 exactly what you do in the Albuquerque Fire Department. Is Mr. Dimas one
9 of the seven that you were referring to?
10 A. His position right now is investigator, but his role is more of
11 an administrative role.
12 Q. So does he have essentially the same job as you except he also
13 has some administrative duties in your division?
14 A. Yes, that is correct.
15 Q. But your expertise you would consider equivalent to his
17 A. Expertise, yes. He does have more experience.
18 Q. Okay.
19 A. Longer time-frame in the office.
20 Q. Now, you have no military training or experience; correct?
21 A. Correct.
22 Q. And you have no experience doing forensic examination in a combat
23 zone; is that correct?
24 THE INTERPRETER: Could counsel kindly make a pause between
25 questions and answers. Thank you.
1 MR. GROOME: Yes. Apologies.
2 Q. You have no experience doing forensic examination in a combat
3 zone; is that correct?
4 A. That is correct.
5 Q. And from looking at the many certificates that you've tendered to
6 us, you have no explosives training; correct?
7 A. Correct.
8 Q. Now, you said at transcript 27:
9 "Through all my training and experience, there are only four
10 fires, four classifications of fires."
11 And then you enumerated them as incendiary, accidental, natural,
12 and undetermined; correct?
13 A. That is correct, sir.
14 Q. Now, you never mentioned fires caused by explosions; correct?
15 A. That is correct.
16 Q. How many different types of explosive devices have you dealt with
17 in your work?
18 A. Off the top of my head, a handful, maybe five, five different ...
19 Q. So if there was a fire scene that was the result of an explosion,
20 would you be the person that would do the evaluation, or would someone
21 else be called in to do that?
22 A. I would be the person.
23 Q. And would any other specialist be called in, or would you be
24 considered the investigator -- the senior investigator on that type of
1 A. If there was a possibility of a secondary device, which a lot of
2 times there are, when police departments or fire departments are
3 involved, if there is that possibility, then I would call in the -- being
4 the commander, I would call in the person necessary, which in my
5 jurisdiction would be the bomb squad, Albuquerque Police Department Bomb
7 Q. They would have someone with expertise particular to fires caused
8 by explosions.
9 A. No, with taking care of the secondary device.
10 Q. Now, the transcript at page 3, you said that you took chemistry
11 courses. Now, looking at your transcript from the university, I see that
12 you completed five classes in college and you withdrew from the sixth
13 class; correct?
14 A. That transcript shows that, yes. However, if you go to the top,
15 it starts with 41 credits, I believe, and so it's not just five classes
16 that I've taken in college, but I did withdraw from that chemistry class
17 because I did move like I had mentioned. There's not a grade for that
18 class because I did withdraw.
19 Q. So --
20 JUDGE ROBINSON: And the reason was that you had moved to another
22 THE WITNESS: That is correct. I didn't fail or drop out. I
24 MR. GROOME:
25 Q. So have you, in fact, had any chemistry -- have you completed any
1 university-level chemistry courses.
2 A. Not university level.
3 Q. And the chemistry course that you withdrew from, it looks like
4 you withdrew rather early in the semester, in October, I believe.
5 A. Yes, that's when I moved.
6 JUDGE ROBINSON: And the semester begins in?
7 THE WITNESS: I believe August.
8 JUDGE ROBINSON: August. All right. Thanks.
9 MR. GROOME:
10 Q. Now, do you recognise that just as there's a difference between a
11 homicide investigator, someone trained to gather evidence at a homicide
12 scene, and a pathologist, someone with expertise to determine a cause of
13 death, there's also a difference between a fire investigator, someone
14 qualified to collect evidence at a fire scene, and someone who has the
15 sufficient expertise to advise a Court the origin of the fire.
16 A. I'm trained to determine the origin first and then the cause. If
17 the cause of a fire is an explosive device, then that is part of the
18 incendiary portion. If it was done with ill-intent or accidental, there
19 is such a classification as accidental explosions which are it's a
20 natural gas leak or old munitions from World War II that's found in
21 someone's basement, those without the intent would be considered
22 accidental; and yes, I am qualified to make that cause, that origin and
23 cause determination.
24 JUDGE ROBINSON: What is your special training to determine the
25 cause, the origin of a fire?
1 THE WITNESS: Along with on-the-job training, I have two
2 different courses, two different certificates that were not shown. I do
3 not have them. I could get them for you. One is an 80-hour class. It's
4 a 2-week class that was put on by the United States Department of
5 Homeland Security at the National Fire Academy
7 of May in 2008, and prior to that, I had a one-week class, a 40-hour
8 class there was given in Rio Ranch, which is an adjacent city to the city
9 of Albuquerque
10 JUDGE ROBINSON: How long in your work have you been determining
11 the origin, the cause of fires?
12 THE WITNESS: I was accepted into the arson division the summer
13 of 2006, and I graduated the police academy, which is a prerequisite, in
14 the December of 2008. So the beginning -- the end of -- excuse me. The
15 end of 2006, the beginning of 2007 is when I started.
16 JUDGE ROBINSON: Have you had any practical experience since that
17 time in determining the cause of a fire that actually took place?
18 THE WITNESS: Yes, sir. Yes, sir. As I mentioned earlier, I
19 have over a hundred fires, a hundred fire scenes that I've actually been
21 JUDGE ROBINSON: No, since 2006?
22 THE WITNESS: Yes, sir. Yes, sir. Since 2006, I have been at
23 over 100 fire scenes and assisted in determining the cause or made the
24 determination myself. I am the lead investigator on over half of those
25 fires I've been on.
1 JUDGE ROBINSON: Yes, Mr. Groome.
2 MR. GROOME:
3 Q. Mr. McCoy, again, I don't dispute that given your experience just
4 as a homicide detective after a few years of experience will say, Well, I
5 can see that that was a defensive wound or I can see that that was a
6 gun-shot to the back of the head; but there's a big difference between
7 expressing that opinion to colleagues and actually being recognised in a
8 court. So my question to you is, you see from your CV that you've
9 testified in courts in New Mexico; am I correct?
10 A. That is correct.
11 Q. And when you testified, have you testified about the steps that
12 you took when you went to a scene, the collection of any samples, taking
13 pictures of the scene?
14 A. Yes, sir, I have.
15 Q. In the US
16 designated an expert. It's a rather long inquiry by the Court; and the
17 Court makes a legal determination that you are now an expert, and you can
18 give opinions in the court, and you're treated very differently. Have
19 you ever been qualified as an expert by a court in the United States?
20 MR. IVETIC: Objection, Your Honour, as to relevance. We operate
21 under the Rules of Procedure and Evidence in this Tribunal, which asking
22 for anyone with specialised knowledge. It's a different criteria than in
23 the United States.
24 JUDGE ROBINSON: I don't see anything wrong in his asking the
25 questions. We make up our own minds as to whether it has any value.
1 MR. ALARID: And I can add just for -- to exemplify, Your Honour,
2 is in a criminal case a police officer is allowed to testify --
3 MR. GROOME: Your Honour --
4 MR. ALARID: -- as a police officer. A fire investigator is
5 allowed to testify as a fire investigator. In fact, I could provide the
6 New Mexico case law, I could provide the New Mexico case law where being
7 a police officer is not considered expert, but is still allowed to give
8 testimony based on following of the standard operating procedures of
9 their profession and during the investigation. It would only by in a
10 civil arena where a law investigation -- or excuse me, law enforcement of
11 either capacity would be designated as an expert.
12 JUDGE ROBINSON: Thank you. Let's proceed with this. I don't
13 want this procedure to be too long.
14 MR. GROOME: Just a couple of questions, Your Honour. I think
15 I'm at the heart of the matter here.
16 Q. Sir, do you understand my question? Has a judge in the
17 United States ever said to you, Mr. McCoy, given your training, given
18 your experience -- It is usually someone senior in their field who has a
19 lot of experience. You seem to be at a young stage of your career. Has
20 a judge ever designated you as an expert?
21 A. Don't let my young appearance fool you, okay?
22 Q. Well, I'm just asking, has a judge ever designated you an expert
23 in a court?
24 A. No, they have not, but on my behalf I have given many depositions
25 with fact-based knowledge, factual knowledge that I have
1 scientifically -- with using a scientific methodology come to the
2 conclusion for a case. These are criminal cases, and in the city of
3 Albuquerque, the fire department, the arson investigation division, we
4 hardly ever go to trial because our cases are rock solid. They plea out
5 I'm going to guess 95 percent of the time.
6 JUDGE ROBINSON: What is the scientific methodology that you use
7 to determine the origin of a fire?
8 THE WITNESS: We look at all the facts. We gather data. Then we
9 develop a hypothesis. Then we test the hypothesis during our peer
10 review, and then if it passes the test, then that proceeds on to our
12 JUDGE ROBINSON: Can you tell me some of the science that's
13 involved in coming to this conclusion?
14 THE WITNESS: The science is chemistry-based char patterns,
15 visual signs. We also take samples, and yes, I have been questioned in
16 court about photographs I have taken, evidence I have collected, and why
17 this particular evidence was collected. We are very thorough. We're not
18 a shoddy club that you're suggesting --
19 MR. GROOME:
20 Q. I'm not suggesting that at all, sir.
21 A. We are professionals. We talk to the judges. We talk to the
22 DAs. We talk to people who ask us questions. We --
23 JUDGE ROBINSON: The question that we are determining here is a
24 very narrow one, and it doesn't have anything to do with your shoddyness
25 or not.
1 Any other questions, Mr. Groome?
2 MR. GROOME: Just one question that arises from Mr. McCoy's last
4 Q. You say you make conclusions based on chemistry-based char
5 samples. It's not you that's doing the chemistry and going into a court
6 and saying, Based upon my analysis of the sample --
7 A. You're correct.
8 Q. So that information is given to you by an expert which you then
9 include in your report or would testify to a Court that you received that
10 report; correct?
11 MR. IVETIC: Your Honour, I hate to interrupt Mr. Groome, but
12 he's misstating the evidence. He said char pattern, not samples.
13 MR. GROOME:
14 Q. I think, Mr. McCoy, you knew what I meant, correct?
15 A. If I may?
16 JUDGE ROBINSON: Yes. Go ahead.
17 THE WITNESS: I'm the one that determines what samples of charred
18 fire debris are collected because of my experience and my training, okay?
19 I am the one that read the patterns on the wall. It's not you. It's no
20 one else in this courtroom that decides where the fire originated, it's
21 me, okay?
22 MR. GROOME:
23 Q. But sir --
24 A. I have been given the authority to do this by a mayor of a city
25 of 600.000 people. If he didn't think I was qualified to do that, I
1 wouldn't have a job.
2 Q. But sir --
3 A. There's seven of us in a city of 600.000 --
4 Q. Let me ask you a question. Sir, please don't get defensive. If
5 I could ask you a question. It's the same way that a homicide detective
6 may come into this room and say make the determination that this glass
7 may have evidential value and collect it; but it's not the homicide
8 detective who is going to do an analysis if the finger-prints match a
9 particular person. That's a very narrow field of expertise.
10 You do have expertise. You have expertise in identifying what
11 needs to be collected, but, sir, don't you agree with me that you don't
12 have the expertise that you can sit here by yourself and without the
13 assistance of other experts in chemistry, in spectography, and all of the
14 very specialised sciences that are used in an arson investigation, you
15 don't have that expertise that you can sit here by yourself and issue an
16 opinion about what causes a fire, do you?
17 A. Okay. Referring to this case, 15, 16 years later, I didn't take
18 any evidence, okay. There was no question about a chemist doing his job
19 on this fire. My job was to determine if there was a large fire of heavy
20 intensity inside the basement of the house on Pionirska Street, and
21 that's what I did. There were no samples taken because any aromatic
22 hydrocarbons or presence of ignitable liquid, the fumes would have
23 evaporated over this time-frame; is that clear?
24 Q. Yes. Thank you.
25 MR. GROOME: Your Honour, I have no further questions. I think
1 Mr. McCoy has valuable evidence to give this Chamber with respect to his
2 observations and the very precise way that he went around the scene and
3 took pictures; but with respect to his report where it draws the
4 conclusion that children started the fire or that the fire was started by
5 an individual trying to keep warm, I would have to, with all due respect
6 to Mr. McCoy, object to his opinion in that regard being accepted as an
7 expert opinion in this trial.
8 JUDGE ROBINSON: Mr. McCoy, when you say that you collect the --
9 you collect the char patterns. You identify the char patterns?
10 THE WITNESS: I determine the origin. Then the origin is where
11 in certain cases where an ignitable liquid was poured, whether gasoline
12 alcohol-type fuels, that's -- I determine the origin. Then I take a
13 sample, and I send it to the lab. That wasn't done in this case.
14 JUDGE ROBINSON: But when you send it to the lab, what does the
15 lab report conclude?
16 THE WITNESS: Whether there was a presence of hydrocarbon, an
17 ignitable liquid, or not, and I -- the percentage -- I can't tell you the
18 percentages of times that I collected items that did test positive or
19 not, and it doesn't matter because we take control samples also. We'll
20 take a control sample from something that didn't burn so they know, this
21 is what a piece of wood like -- a piece of wood in the room tested
22 normal, and this is what --
23 JUDGE ROBINSON: Is it on the basis of the lab report that the
24 final conclusive determination as to the cause, the origin is made?
25 THE WITNESS: No, it is not. It is a compilation of everything,
1 but on-scene, I make the determination what the cause of the fire was and
2 where the origin of the fire was, and I have for more than 60 fires and
3 assisted with more than 50 above that.
4 JUDGE ROBINSON: Thank you.
5 [Trial Chamber confers]
6 JUDGE ROBINSON: The Chamber's decision by majority, Judge David
7 dissenting, is that the witness does possess the relevant expertise to
8 provide the Trial Chamber with testimony on the cause, the origin of
11 MR. IVETIC: Thank you, Your Honours. I believe we had left off
12 with the report that I hope is still up there because I still do not have
13 it on e-court, Your Honours, so with the assistance of the court usher if
14 we could pull that up.
15 Examination by Mr. Ivetic: [Continued]
16 Q. And in the meantime, sir, tell me about your examination of the
17 Pionirska alleged fire site. First of all, there's been discussions
18 about your colleague, Mr. Dimas. Whom did you go to the site with, and
19 whom did you perform your scientific methodological inquiry of the site
21 A. I proceeded to the site on Pionirska Street with my colleague,
22 Benjamin Dimas along with Stephen O'Donnell and Jenkins, Cliff Jenkins,
23 to investigate this scene. Doing a systematic approach, I did a 360,
24 which is a complete walk-around of the structure on Pionirska Street
25 photographing all sides, all corners, all angles of the house on
1 Pionirska Street, and then finally, entering the structure from the
2 basement level first.
3 Q. And what portion of the structure was the focus of your inquiry
4 as to ascertaining what had happened?
5 A. The focus of my investigation was on the basement of the house on
6 Pionirska Street, the lowest level.
7 Q. And first of all, let me see if I can get the number for -- first
8 of all, let's focus on your report for the moment since we have it in
9 front of us. The report that we have on the ELMO, is this a report that
10 was generated by you?
11 A. Yes, sir.
12 Q. And when was it generated in relation to your site visit to the
13 Pionirska and Bikavac locations in Visegrad?
14 A. It was after my site visit to the house on Pionirska Street and
15 to the site on Bikavac Street.
16 Q. And the factual observations as well as the specific conclusions
17 that you reached with respect to both Pionirska and Bikavac are set forth
18 in this report. If you were to be asked those same questions in general
19 today, would your answers by the same, with the caveat that we will go
20 through the specifics and look at some photographs?
21 A. Yes, it is the same.
22 Q. Okay.
23 MR. IVETIC: Your Honour, I believe we've already tendered the
24 report in our Rule 94 bis submission, and Your Honours have reserved
25 ruling until the conclusion of the evidence; so I'll move on to the next
1 part of this, which is to start looking at some of the physical evidence
2 that was seen by this witness in his review. If we can call up 1D22-0603
3 in the e-court.
4 Q. And sir, we're seeing the first page of a 4-page document. Do
5 you recognise this document?
6 A. Yes, sir. It's a document I put together.
7 Q. And the photographs are these photographs that were taken by
8 yourself with respect to the Pionirska Street location.
9 A. That is correct.
10 Q. On the first photograph and with the assistance of the court
11 usher, perhaps we can use the pointing marker or device on the screen,
12 the drawing device, I should say. If you could indicate for us in
13 whatever colour would appear well on this photograph, maybe red, with a
14 red arrow on the top photograph where the room that was the focus of your
15 investigation is located.
16 A. This is the doorway into the basement.
17 MR. IVETIC: Thank you. And let the record reflect that it has
18 been done in red. And if we could -- well, before we save this, there's
19 one other item.
20 Q. And on the second photograph that we have there, next to the
21 window there is an area of discolouration in the wall. Did you have
22 occasion to observe that, and what were your factual observations and
23 findings with respect to that discolouration that you've now marked in
24 red on that second paragraph?
25 A. This discolouration in this area here is darkened wet because of
2 Q. Thank you. And the text next to the photograph states: "No
3 signs of fire or smoke damage above the windows."
4 Are those factual findings and conclusions you made base upon
5 what you saw at the site?
6 A. That is correct.
7 Q. Why is that relevant to the ultimate hypotheses or inquiry of
8 whether, in fact, this room was involved in a fire?
9 A. If this basement room was involved in a fire of any magnitude or
10 any intensity, there would be blackened char marks on the exterior
11 portion of these windows. Just like any structure fire, the windows
12 would -- if there was a large fire, the windows would break and the smoke
13 plume would discolour the area directly above the windows that broke out.
14 MR. IVETIC: And let the record reflect that the witness has
15 marked in blue ink the portions relating to whether he would have
16 expected the find the char discolouration from the smoke plumes.
17 If we can save this photograph before moving on.
18 [Trial Chamber and legal officer confer]
19 MR. IVETIC:
20 Q. And perhaps if we can ask a general question while the technical
21 aspects of that request are being handled, sir. You've heard Mr. Groome
22 here talk about the room and talk about what he said was a -- was a fire.
23 Could you describe for us upon your visual examination of the room in
24 question, what were your factual findings and conclusions drawn therefrom
25 as to whether, in fact, that room had been enveloped in a large-intensity
1 fire sufficient for 60 to 70 persons to have perished?
2 A. Gathering the scientific data on-scene through visual inspections
3 of all surfaces in this room, there was not a fire of great intensity.
4 There was small debris, small diameter, fire -- remnants of a small fire
5 in one portion of this room with many surfaces untouched by fire.
6 Q. Where was this area of the room that was -- that had these
7 remnants of a small fire?
8 A. It would be on the floor on the north side of the room.
9 Q. Describing for us based upon the layout of the room when one
10 walks into it, where would that be located since I don't believe we've
11 had evidence as to what direction the door faces.
12 A. The door is on the south side of the room. Again, it's not true
13 south, but it's close enough to call south. Walking through the door --
14 through the doorway, crossing the threshold, looking straight -- looking
15 due north, that's the north wall. It would be at the base of that wall.
16 There was small-diameter charred debris.
17 Q. And based upon your experience --
18 JUDGE ROBINSON: Just a minute. Mr. Alarid, who are the other
19 witnesses for today?
20 MR. ALARID: We do not -- Dr. LaGrange is set for tomorrow
21 morning, Your Honour.
22 JUDGE ROBINSON: Tomorrow?
23 MR. ALARID: Yes, and we would conclude with her for this week.
24 [Trial Chamber confers]
25 JUDGE ROBINSON: Proceed, Mr. Ivetic.
1 MR. IVETIC: Thank you, Your Honours.
2 Q. Sir, given your experience and work history, what conclusions can
3 you draw from that small -- I believe you called it a small-diameter
4 charred debris. What type of intensity of fire was this, or what -- was
5 it a long-lasting fire? Was it a fire that would have enveloped the
6 whole room?
7 A. No, it would not have. There, again, like I said, many surface
8 this is this room that were not touched by flame or heat, and I did
9 select the photos that show that. Along with the threshold at the base
10 of the doorway, along with the door frame and the door, there are other
11 pieces of wood embedded in the concrete that are untouched by heat or
12 smoke. They're not discoloured. They're not wet. They're for all
13 intents and purposes pristine.
14 Q. And now, with respect to this room, it has concrete or brick
15 elements to it, as well, and some plaster. Could you explain for us the
16 principle of heat transference and what one would expect of wood or other
17 material that was perhaps covered over by plaster in a room that was
18 subject to a sustained high-intensity fire?
19 A. If this room had been fully involved in fire, smoke and fire,
20 every surface would have been discoloured, would have been charred.
21 Every surface of wood would have been charred. Every surface of concrete
22 would have been discoloured by soot, other by-products of combustion,
23 soot, dark silt, smoke. It would discolour, again, every surface. It
24 would be pressurised and every crack, every crevasse, including stuff
25 covered by thin layers of plaster.
1 Q. Now, these particular photographs that we on the screen, the four
2 pages that you had indicated you had generated, you have provided
3 comments next to each photograph. Are those comments based upon your
4 review and conclusions you and your colleague reached based upon your
5 experience and expertise at the scene of this location?
6 A. That is correct. We came to a conclusion, many -- to conclusions
7 at the scene, but this document was done in my office with peer review
8 from my colleague, Ben Dimas.
9 Q. And with respect to the factual descriptions and the conclusions
10 that you have set forth in this document, do you stand by those? That is
11 to say, if today under oath we were to go through each picture, would
12 your observations and conclusions as set forth in this document be the
13 same here under oath?
14 A. Of course. Yes, sir.
15 Q. Thank you.
16 MR. IVETIC: Again, Your Honours, we have I believe tendered this
17 as part of our 94 bis package, and that's being reserved for
18 Your Honours' decisions following the witness's testimony. I would like
19 to now move to specific photographs. If we can call up Y020-3398,
21 Q. And sir, as we wait for that photograph to show up on the monitor
22 in front of you, I believe we'll be seeing one of the windows from the
23 location. I would ask you first to identify, if you can, the photograph.
24 A. This window is the southern-most window. Walking into the room,
25 it's going be your first window on the left.
1 MR. IVETIC: If we can pull up side by side with this Y020-3509.
2 Q. Sir, looking at these two photographs side by side, in relation
3 to the -- can you place this window on the exterior of the house? Are we
4 looking at the same section?
5 A. Yes. This window is this window.
6 Q. Okay.
7 MR. IVETIC: Let the record reflect that it's been marked in red
8 ink on the monitor.
9 Q. Now, sir, you will note that there are no window-sills or window
10 frames in this window. The assertion, I guess, has been made that the --
11 that there was a fire and that the wood was either destroyed in the fire
12 or removed by whoever set the fire. Do you see any physical evidence of
13 there having been a fire that involved this window?
14 A. No, sir. There's no evidence of any kind telling me that there
15 was a fire of great intensity in this room by looking at the window, the
16 window-will, or where the window-will would have been.
17 Q. Now, assuming for the moment the argument that there was a -
18 let's assume - wooden window-will, and let's assume there was a fire;
19 what types of physical characteristics would you expect to find in the
20 surrounding concrete and in the embedded wood below that would
21 corroborate such a claim that there was a fire that involved the wooden
22 frame of this window? And if you could perhaps use a different colour
23 pen, if you can highlight for us where those physical characteristics or
24 signs would be, markers of a fire.
25 A. If there was a fire in this particular room, there would be signs
1 along this side of the window along with on top dark discolouration and
2 deep embedded discolouration into the cracks, or if the wood was still
3 there, into the wood itself. Even continuing down, depending on the
4 amount of fuel in the room and the amount of oxygen let into the room,
5 how intense the heat was, any porous object in the room, in a pressurised
6 room will succumb to discolouration from the soot and the silt along with
7 the smoke produced from a large, intense fire.
8 Q. And you've marked in blue that area we believe the fire
9 indicators would have been located, and you've also marked what appears
10 to be a wooden slate. That piece of wood that you've marked base upon
11 your visual inspection of the premises, was that something affixed to or
12 embedded in the wall?
13 A. This particular piece of wood was embedded in the wall.
14 Q. So that would be a part of the wall; is that correct?
15 A. That is correct.
16 Q. And with respect to wood, once it has been exposed to heat and
17 fire, you've already described for us the chemical reaction, I believe,
18 called charring. Once wood has been thus affected by fire, can it ever
19 revert back to an un-charred state?
20 A. No. It's a chemical reaction that cannot be reversed.
21 Q. Thank you.
22 MR. IVETIC: Your Honour, I would ask for this screenshot to be
23 saved and given the next available 1D number.
24 JUDGE ROBINSON: Yes.
25 THE REGISTRAR: Exhibit 1D162, Your Honours.
1 MR. IVETIC: Now if we can go to Y020-3579, and if alongside we
2 can have Y020-3578. The one on the left is a photograph that was in the
3 booklet that the Prosecution tendered for use with Mr. O'Donnell, and for
4 some reason the Prosecution's print-outs appear to have been altered so
5 that they're darker than the original photographs. That's why I'm
6 calling up the originals rather than using the booklet --
7 MR. GROOME: Your Honour, that's a pretty serious accusation that
8 the Prosecution has altered digital files.
9 MR. IVETIC: Not the Prosecution, the scanning process has
10 altered them. It's apparent to the eyes, Your Honour.
11 Q. Sir, does the photograph on the right depict the same portion of
12 the wall as the photograph on the left based upon your recollection of
13 the visual observation of the site at Pionirska?
14 A. Yes, it does.
15 Q. And you will note the darkened area on the right of both
16 photographs. Is that based upon your knowledge and experience as an
17 investigator of fire scenes, does that darkened area or any portion of
18 this wall provide any indicia of a large -- excuse me, of a sustained
19 exposure to fire and/or the results of fire, such as smoke or soot?
20 A. No. Upon visiting the scene, this object was not subjected to
21 fire, was not damaged or destroyed by fire.
22 JUDGE ROBINSON: What about the passage of time, the number of
23 years that elapsed? I mean, is it possible that that evidence might have
24 disappeared over time?
25 THE WITNESS: It's possible. Evidence of any nature would
1 disappear. In this particular room, there was large portions of wooden
2 floor that were untouched. In the time frame that has elapsed since the
3 supposed fire on June 14th, everything could have been replaced. This
4 wood flooring could have been replaced, but in my opinion this is the
5 original wood floor that was in there, that the amount of wear and damage
6 along with moisture, darkening from the moisture, this portion of wood
7 floor appears to be original or dating back to that year.
8 JUDGE ROBINSON: Thank you.
9 MR. GROOME: Your Honour, just so that there's no question in the
10 future, I've asked Mr. Van Hooydonk to take out the printed digital
11 files, the pictures that have been alleged to have been darkened, they
12 were not scanned. We were provided digital files. We printed them, so I
13 have them and I'd ask the usher to circulate them around the court and
14 the Chamber so that the Chamber can see what was printed from the files
15 provided by Defence.
16 MR. ALARID: Mr. Groome, it's only in the book in the PDF format
17 do they have that darker appearance, so I'm assuming they were scanned to
18 make the book.
19 MR. GROOME: They were not scanned. They were just -- digital
20 files were taken and placed in the book.
21 MR. ALARID: Printing, then.
22 JUDGE ROBINSON: Yes, very well. Please continue.
23 MR. IVETIC: Thank you. And for the -- I guess I need to move to
24 introduce both of these photographs. Your Honours, I guess it would
25 probably be best to introduce them separately to give the best possible
1 vantage point for the Trial Chamber as the next available 1D exhibit
3 JUDGE ROBINSON: You want to have them admitted?
4 MR. IVETIC: Yes, Your Honours.
5 JUDGE ROBINSON: Yes.
6 THE REGISTRAR: That's Exhibit 1D163 and 1D164, Your Honours.
7 MR. IVETIC: And if we can pull up side by side Y020-3618,
9 Q. And sir, while well wait for those, you've told members of the
10 Trial Chamber your observations about the wooden floor-boards. The
11 photographs that are coming up on the screen, are these in fact the
12 floor-boards you were talking about in the bottom room of the Pionirska
13 house where the incident was alleged to have occurred.
14 A. Yes, this is the portion of the wood floor I was referring to and
15 let it be known the dark areas are because of moisture and possible
16 rotting from the excess moisture in time, not charring.
17 Q. I think this is a critical point. I'd like for you to explain to
18 us, again, using the pointer or drawing tool, if necessary. Could you
19 describe for us what areas you're referring to that are moisture and rot
20 but not charring, and explain for us how you determined at the scene that
21 this darkened wood was not the result of charring.
22 A. Okay. This area -- I just did something. These portions of the
23 timber that appear darker were, in fact, soaked with moisture from the
24 ambient air, the floor. Again, these windows were open. There's a
25 window slightly above in this direction. It was wintertime, plenty of
1 moisture, and when wood is subjected to heat or open flame, it chars, and
2 it leaves a pattern known in my line of work as alligatoring; and it
3 looks like the back of an alligator, the hide of an alligator, and this
4 wood does not have the alligatoring appearance. It's smooth. You can
5 zoom in and take a closer look, and it is not charred or was not
6 subjected to heat. It's just moisture.
7 JUDGE ROBINSON: Can you say what the darkened appearance of the
8 wood would have been due to if not the result of a fire?
9 THE WITNESS: Without a hundred percent certainty, in my personal
10 experience when you wet wood over a long period of time, it does become
12 MR. IVETIC: May I proceed, Your Honour? Was that --
13 JUDGE ROBINSON: Yes. Yes.
14 MR. IVETIC:
15 Q. And Mr. McCoy, when you entered the room, did you note any
16 sources of external water coming into the room?
17 A. Throughout the whole interior of this room, it was wet, moist.
18 Above this room is the first floor, and there's vegetation growing.
19 There's grass, and I'm guessing the roof was not intact and there was
20 moisture on the ceiling of this basement, possibly through cracks in the
22 Q. Let's take another approach at this wood. Had this wood been
23 exposed to fire and undergone the chemical reaction of charring or
24 creating charcoal, what would the physical remnants or tests be to test
25 for the presence of charcoal? Is there a way you could easily check and
1 it rule out whether in fact something is charcoal?
2 A. As with most charcoal, it'll leave discolouration, it'll leave
3 marks. If you take a piece of paper or even your finger, it will leave a
4 black mark, and tests of that nature were done on this wood, and no
5 residue, no black charcoal or carbon by-product did come off of the wood.
6 Q. Now, looking at these photographs and taking into account what
7 you just said about what you and your colleague did to determine what had
8 caused this wood to discolour, apart from that one small area where there
9 was a small-diameter fire, would these findings and observations be true
10 for the remaining wood floor that was present in this room when you
11 examined it?
12 A. No. When there's a high intense -- high-heat intense fire in a
13 small room such as this in a structure like this, there's a phenomenon,
14 it's actually a scientific event that happens. It's called flash-over.
15 The surface of everything that can ignite will, and -- floor to ceiling,
16 wall to wall, and if that type of fire occurred, this wood would have
17 charring or alligatoring on it.
18 Q. With respect not only to this portion of the flooring but the
19 flooring throughout this room, which I believe in one of the reports is
20 actually measured and are said how large it is, was there any evidence of
21 flashover or charring of the floorboards?
22 A. No, there was no evidence of charring to the floorboards.
23 Q. And what does that mean to you, the trained observer, as to
24 whether, in fact, there was a high-intensity fire enveloping this entire
1 A. There was -- in my opinion, there was not a high-intense fire
2 that created a flashover condition in this room because of the untouched
3 surfaces of the floor timbers along with the wood that's embedded in the
4 concrete below the window.
5 Q. Thank you.
6 MR. IVETIC: If we could turn to Y020-3526 -- pardon, me. If we
7 could save this -- if we could save this picture. Thank you,
8 Madam Registrar. If we could save the screenshot of these two
9 photographs side by side and admit them as the next 1D exhibit number.
10 And if we can have alongside this Y020-3527.
11 Q. And when that picture comes up, sir, I'll ask you to first
12 identify with respect to the door frame of the door, we see certain dark
13 areas on the wood and on both -- and also the concrete. What did your
14 factual observations at the scene determine as to what was this
15 discolouration and whether, in fact, it was indicia of a fire having been
16 in this room?
17 A. My conclusions from these pictures -- or being on scene, this
18 area along with this area, it's obvious that this is mold, green in
19 colour, green in colour, black in colour, moving over, again, green,
20 green in colour, mold. Again, this is a very wet environment. This
21 particular portion is outside. It's exposed to all the elements, and
22 again, the wood in this area -- actually, the complete door frame is
23 untouched by heat or fire, no discolouration, no charring. It's obvious
24 to me that there was no fire of great intensity on the interior of this
25 building. If there was, you would have patterns of smoke exiting out
1 this area in that nature, billowing smoke, discolouring every surface it
3 JUDGE ROBINSON: I'll ask you the same question I asked you
4 earlier about the passage of time and whether that evidence that you
5 would have associated with a fire might have disappeared.
6 THE WITNESS: Evidence of what nature? Are you talking ignitable
7 liquids or the charring of the wood?
8 JUDGE ROBINSON: Well, the charring, for one, yes. What you
9 would normally expect. I mean, what would you normally have expected to
10 see if there had been a fire?
11 THE WITNESS: Okay. In the upper areas of the doorway, the door
12 frame, and depending on the amount of fuel in the room and the amount of
13 smoke coming out of the room, you're going to have discolouration to the
14 door frame, to the concrete above the door, dark discolouration. You're
15 going to have charring from just the heat on the wood. This wood is in
16 pristine condition. Charring is an irreversible chemical change. You
17 can't un-char a piece of wood. It's destroyed.
18 JUDGE ROBINSON: So that the passage of time would not have
19 affected that.
20 THE WITNESS: No, sir. No, sir.
21 JUDGE ROBINSON: Once charred, always charred.
22 THE WITNESS: That is correct, sir.
23 MR. IVETIC: If, for the record, we can just reflect that the
24 blue markings were the most recent additions to this photograph
25 indicating where the charring and soot patterns would have been. If we
1 could save the screenshot of these two photographs side by side as the
2 next available 1D exhibit and tender them into evidence.
3 JUDGE ROBINSON: Yes.
4 THE REGISTRAR: Exhibit 1D165, Your Honours.
5 JUDGE ROBINSON: Mr. Ivetic, you have spent a long time with this
6 witness largely due to the length of your examination relating to his
7 expertise. That was unduly long.
8 Mr. Groome, how long will you be in cross-examination?
9 MR. GROOME: Your Honour, I have a substantial amount of
10 questions and photographs to show this witness.
11 MR. IVETIC: And Your Honours, I would only --
12 [Trial Chamber confers]
13 JUDGE ROBINSON: I understand that we might be able to sit for at
14 least the first session this afternoon. There's a courtroom available.
15 MR. IVETIC: That's fine by us, Your Honours. I was just going
16 to add that the nature of this testimony is very critical because
17 obviously it goes toward the truth-finding of the Court to what happened
18 at Pionirska, so I would be happy to -- with the witness's availability,
19 I would be happy to sit an extra session if that's possible with everyone
20 else. I can't speak for everyone in this courtroom, though.
21 JUDGE ROBINSON: Yes. Well, we'll let you know later.
22 MR. IVETIC: Thank you, Your Honour.
23 If we could pull up Y020-3539. That's, actually, I think 3639.
24 3639, and also -- let's see what that pulls up before I go looking at
25 other ... okay, 3649, is that ...
1 Q. Well, looking at the photograph on the left, sir, and the
2 discolourations to the wood that are evident there, did you observe this
3 phenomenon to the wood that is exhibited in this photograph, and was this
4 related to any fire damage?
5 A. Again, no. This picture is on -- is from the interior of the
6 structure, and smoke or flame billowing out from this doorway would have
7 discoloured the upper if not the entire portion of the door frame.
8 Throughout this whole structure, the basement structure, it was very
9 moist, very damp, and this area --
10 Q. When you say this, could you mark it --
11 A. And this area is not discoloured because of heat or smoke. It is
12 discoloured, in my opinion, because of the moisture.
13 Q. Practically speaking, is it possible for fire to skip and create
14 this kind of pattern on wood, or would it be uniform?
15 A. It would be uniform. It would be across a portion -- straight
16 across. It's not going to skip this area if there was an intense fire
17 pushing large amounts of heat and smoke, it would have been a line of
18 demarcation where the hot gases were above and then the cool gases were
19 below, the cooler air. So the line of demarcation is not going to skip
20 an area like this. It'll be closer to a line straight across.
21 MR. IVETIC: And let the record reflect, you've used blue ink to
22 denote the second set of your observations. If we could save a
23 screenshot of that photograph and admit it as the next 1D exhibit number.
24 JUDGE ROBINSON: Yes.
25 THE REGISTRAR: Exhibit 1D166, Your Honours.
1 MR. IVETIC: And now if we could call up Y020-3591, and
2 perhaps -- pardon me, 3590, Your Honours, first, and then also 3634,
4 Q. And sir, we're looking at, I believe, the same window that we
5 started our discussion with; is that accurate?
6 A. That is correct.
7 Q. If I could draw your attention -- if I could draw your attention
8 to the left-hand side of the window. Do you see that dark line that
9 seems to be curving down from the top of the wall down below the window?
10 A. [Marks]
11 Q. Yes, sir, that one that you've just marked in red. Can you
12 correlate that to the photograph on the right as to where that line
13 terminates on the photograph to the right if, indeed, is visible on the
14 photograph to the right?
15 A. It starts from this black box and then continues down, and in the
16 picture on the left, the black box is right there.
17 Q. Now, based upon your observations at the site and your experience
18 and expertise, were you able to ascertain what this what appears to be a
19 black box is with lines leading to it in four directions?
20 A. This black box is a junction box, electrical junction box, and
21 there were wires I believe here, visible wires, and partially visible in
22 this area here.
23 Q. Let the record reflect you've continued making markings in red.
24 Was the box itself made of wood or some other material based upon your
25 visual inspection of the same?
1 A. Based upon my inspection, it was not wood. It was tin, possibly.
2 I didn't inspect it thoroughly, but I know for a fact it wasn't wood.
3 MR. IVETIC: If we could save this screenshot of the two
4 photographs and mark it as the next 1D exhibit.
5 JUDGE ROBINSON: Yes.
6 THE REGISTRAR: Exhibit 1D167, Your Honours.
7 MR. IVETIC: And with respect to 020 -- pardon me, Y020-3633, if
8 we could just pull that up briefly on the screen, having in mind what
9 we've just seen. And if perhaps we could pull the next one up on the
10 left-hand side and leave the right side as is, pull up Y020-3633 on the
11 left side.
12 Q. Sir, the photograph on the left that has now come up, is that the
13 same spot you were talking about?
14 A. Yes, it is. Again, this area is where the exposed wire was
15 showing and partially in here, and this is a black box, again, of tin,
16 possibly plastic. I'm not quite sure.
17 Q. And based upon your observations, you are confident that this is
18 not a burnt timber in the wall pocket in the ground floor room.
19 A. That is correct. There should be no timber in this area.
20 Q. And again, is this near the first window we looked at in one of
21 the first photographs that had the moisture on the other side?
22 A. Exactly. That is correct. This is the first window to the left
23 once entering the room.
24 Q. Thank you.
25 MR. IVETIC: If we can have a screenshot saved of that and
1 admitted as the next 1D exhibit number. I'd like to then move on.
2 JUDGE ROBINSON: Yes.
3 THE REGISTRAR: Exhibit 1D168, Your Honours.
4 MR. IVETIC: Before --
5 JUDGE ROBINSON: Mr. Ivetic, are the rest of the photographs of
6 the same kind? What I'm wondering is whether it's going to be repetitive
7 of the same kind of evidence that, it's not a fire. It's due to
8 something else.
9 MR. IVETIC: That's correct, Your Honour. The photographs that
10 Mr. McCoy selected and included as part of his report are selection he
11 has comments and conclusions with respect to the same showing these
12 findings. I'm focussing on specific ones that the Prosecution drew
13 attention to during Mr. O'Donnell's testimony and wherein in Prosecution
14 claimed this was wood and timber --
15 JUDGE ROBINSON: I see. Proceed.
16 MR. IVETIC: Okay. And now just before leaving the Pionirska
17 house, I have just one other area to do on Pionirska before briefly going
18 to Bikavac, and I'd like to call up number Y020-3539, and -- well, I'll
19 wait for that to come up before I give the next number. And on the
20 right-hand side, if we can have Y020-3540.
21 Q. Now sir, these are photographs that I believe are included in
22 your report, but they're not of the same resolution of these that are now
23 on the screen. They're a little bit less resolution. You mentioned
24 alligatoring in wood. First of all, the wood that is referenced here,
25 where is it located in reference to the room where the alleged fire is to
1 have taken place?
2 A. On the exterior of the basement room.
3 Q. How far away is this location from any of the windows or any of
4 the doors of the room, the suspect room?
5 A. The closest window or door would be the door to this area, and
6 it's approximately 10 feet. The closest window would be approximately 30
7 feet around a corner.
8 Q. Is there any possibility for a fire starting in that room to have
9 caused this damage at this portion of the house given the other empirical
10 evidence that you saw at the scene of the crime -- the scene of the site
11 pursuant to your knowledge and experience?
12 A. Again, with my knowledge and experience, fire would have damaged
13 the door, the threshold, the door jam, the door frame to get to this
14 point, to have this kind of damage on the outside of the room, but
15 skipping the door frame is not conceivable.
16 Q. And now, with respect to this wood, this wood has been burnt; am
17 I correct, and could you tell us what features in this wood identify that
18 it has been burnt.
19 A. The feature that I'm outlining here is light alligatoring. You
20 can see the marks, the cracks in both ways, up and down. And again, up
21 here, this is larger diameter alligatoring, charring, and the intensity
22 of this fire was not great enough to char this portion all the way
23 through. Again, you have remnants on the backside that -- of clean wood,
24 and going back a little bit in our conversation, this area up here shows
25 little stalagtites or remnants of moisture seeping from the first floor
1 down to the basement level, and again, this is not in the basement. It's
2 in the exterior of the basement.
3 Q. And now looking at the left photograph for a second, there has
4 been a suggestion made that that little piece of untouched portion of the
5 wood is a furring strip that would have been affixed to the wall to have
6 some kind of wall covering. Did you see any evidence of furring strips
7 inside the room that was the focus of your inquiry, the room where it is
8 alleged that the large, intense fire occurred?
9 A. No. There was no signs or remnants of any type of furring strips
10 on the interior of the basement, and this one, if you go on a linear --
11 it's like this, and there's nails up here. You wouldn't tack to an area
12 where there was not a furring strip.
13 Q. Thank you.
14 MR. IVETIC: If we can have -- and if the record could reflect
15 the most latest additions were done in blue ink. If we could have this
16 screenshot saved and admitted as the next 1D exhibit number.
17 JUDGE ROBINSON: Yes, we'll take the break now.
18 MR. IVETIC: I apologise, Your Honour.
19 THE REGISTRAR: Exhibit 1D169, Your Honours.
20 --- Recess taken at 12.20 p.m.
21 --- On resuming at 12.49 p.m.
22 JUDGE ROBINSON: Yes, Mr. Ivetic.
23 MR. IVETIC: Thank you, Your Honours.
24 JUDGE ROBINSON: We have to push along.
25 MR. IVETIC: I'm planning on another 10, 15 minutes tops,
1 Your Honours.
2 If we can have the last two photographs from Pionirska, Y020-3361
3 and Y020-3360 up side by side on the screen.
4 Q. And I suppose soon, Mr. McCoy, you'll have the photographs on the
5 screen of an item that I think you will quickly recognise as the left
6 picture is included on, I believe, your summary report. And while we're
7 waiting for the right-hand side to come up, what can you tell us about
8 this item that is depicted on the left? Where is this, and what is this?
9 A. This is a picture of a pipe chase or a chimney that -- I'm in the
10 basement looking up. This is -- could be a chimney vent of some kind,
11 and once I walk in to the basement through the door, take two or three
12 steps to the right up against or adjacent to the right wall, which would
13 be the west wall of the basement. And the reason I took this photograph
14 is because this area across is approximately four to five inches in
15 diameter, and this area here -- the whole area, but obvious, it's clean.
16 Fire, heat, smoke, it takes the path of least resistance, which is
17 usually up and out. I've never seen a fire where the smoke goes straight
18 down. It cannot. There's usually a floor or ground or something. It
19 goes up and out, and with this area in the circle being clean, it leads
20 me to believe, again, there was no large fire or a fire with great
21 intensity in this basement.
22 JUDGE ROBINSON: Can you just tell us again, where exactly is
23 this chimney? Is it in the same -- does it proceed from the same room,
24 the same basement room?
25 THE WITNESS: Yes. In the basement walking through the door, now
1 I'm inside approximately two or three steps to the right. The windows
2 are going to be on the left, and this chimney is on the right, and the
3 way I photographed it is looking straight up -- from the basement looking
4 straight up. And as you can see, you can see daylight. It's not
5 obstructed. It's a clear path.
6 JUDGE ROBINSON: What would you have expected to see had there
7 been a fire?
8 THE WITNESS: Dark markings, discolouration of a dark colour in
9 nature consistent with soot or smoke-staining, similar to the way I drew
10 outside a window where the fire vents. This is pristine. It's spotless.
11 JUDGE ROBINSON: And this even after 17 years?
12 THE WITNESS: Yes. Yes, sir. Again, this material in here is
13 porous. It's cinder. It's block or concrete in nature, and it doesn't
14 have a smooth surface. Smooth surface like glass can be cleaned. Soot
15 can be cleaned off it. Porous, it can't. It embeds itself. It's
17 JUDGE VAN DEN WYNGAERT: But is this then a chimney that has
18 never, ever been used?
19 THE WITNESS: In my estimation -- I don't know what the purpose
20 of this particular area going up. It could have been for wires. It
21 could have been a vent for a restroom, a commode. They use vents that
22 vent up sewer gas, which is hydrogen cyanide, up and out so it doesn't --
23 so you don't get sick from the smell. If, in fact, that was the case,
24 you wouldn't have discolouration. It could have been in the plans for a
25 wood stove of some kind to be used, and it never was. My conclusions of
1 these photographs is that there was no fire in the basement of great
2 enough intensity to discolour a clear pipe chase, an open-air -- you can
3 see there's daylight. It's not obstructed with any rubbish. It's clear
4 and open to the air on the top level.
5 JUDGE ROBINSON: Yes, Mr. Ivetic.
6 MR. IVETIC: Thank you, Your Honours. If we could have this
7 screenshot saved and admitted as the next 1D exhibit number.
8 JUDGE ROBINSON: Yes.
9 MR. IVETIC: I think I can then move on to Bikavac, where I'll be
10 rather brief.
11 THE REGISTRAR: Exhibit 1D170, Your Honours.
12 MR. IVETIC: Thank you, Madam Registrar. If we could first pull
13 up 1D22-0608.
14 Q. And while we're waiting for that, sir, I believe this will be the
15 summary of the photographs you selected from the Bikavac location. Do
16 you recall -- could you just give us a brief description of what you saw
17 when you arrived at the suspected Bikavac fire site?
18 A. Okay. I don't have anything on my screen yet, but once I arrived
19 on scene of the alleged Bikavac fire, there were no -- there was no
20 structure. It was completely gone. There were remnants of a footing, a
21 portion of the foundation, not the actual foundation itself, but the
22 footing, along with a walkway that led up towards the house; but in my
23 line of work we need a structure to be able to tell if there was a fire
24 there or not. We need something to tell us direction or intensity or
25 lack thereof; and, again, on this structure, it was basically a vacant
2 Q. Okay. And I think now on the left-hand side we do have this
3 document 1D22-0608. With respect to this, is it something you recall?
4 Is it something you generated?
5 A. Yes. These are the photographs I took when I did go to the
6 Bikavac fire scene, and these, again, show the vacant lot, that there's
7 no building. This photograph right here was an adjacent structure,
8 and --
9 MR. IVETIC: Let the record reflect the witness has marked at the
10 top -- second photograph from the top with a red X.
11 THE WITNESS: And that red X, again, indicates a vacant
12 structure, and we did find remnants of a building, and it would have been
13 right here to the -- closer from the building with the X, and again, it
14 wasn't a complete foundation that we did find remnants of, but it was the
15 footing. And the house from my findings would have been adjacent to it
16 and looked similar to that as far as the foundation.
17 MR. IVETIC:
18 Q. Okay, sir. With respect to the Bikavac location, you have made
19 certain findings in your report and have made certain comments giving
20 factual observations and findings in this summary next to the various
21 photographs. If you were to be asked today under oath to comment on
22 these same matters, would your answers to these items be the same? Would
23 you stand by what is asserted in your report and in this factual
24 commentary on these photographs that is in written form?
25 A. That is correct, sir.
1 MR. IVETIC: And again, Your Honour, this has already been
2 tendered and subject to the Court's reservation of ruling pursuant to the
3 94 bis procedure. I would only ask that this particular document be
4 screenshot so that we can have the drawings and have that be admitted for
5 purposes of making reference to the witness's testimony the last two
6 minutes thereof.
7 JUDGE ROBINSON: Yes.
8 THE REGISTRAR: Exhibit 1D171, Your Honours.
9 MR. IVETIC: Thank you.
10 Q. Now, photograph number 5 in this report by you is of a double
12 MR. IVETIC: And if we could perhaps pull up -- let me see. One
13 moment, please. If we can perhaps pull up picture number Y020-3457
15 Q. And sir, what I'd like to ask you is where was this double door
16 locator situated relative to the empty lot where you said that there was
17 a footing or foundation of a house that was no longer there?
18 A. It would have been on the opposite side. Again, I'm going to --
19 I'll mark it -- of this structure. So this structure, this structure,
20 the lot where the Bikavac house should have been, and then this
21 structure. So in a row of houses, it would have been this one, then the
22 house that no longer exists, and then this house, so adjacent to it but
23 on the other side.
24 Q. Okay.
25 MR. IVETIC: I would ask for a screenshot of -- well, actually
1 not a screenshot. Well, I guess we have to since he's marked on it. Can
2 I get a screenshot of both these photographs and admitted as the next
3 available 1D exhibit number.
4 JUDGE ROBINSON: Yes.
5 THE REGISTRAR: Exhibit 1D172, Your Honours.
6 MR. IVETIC: And now if I can have Y020-3461 up on the screen,
7 and alongside it, Y020-3462.
8 Q. Mr. McCoy, did you and your colleague have occasion to -- first
9 of all, who took these photographs of this door?
10 A. I did, sir.
11 Q. And at the time that the door was photographed, did you and/or
12 your colleague have occasion to perform some measurements of the
13 dimensions of this door?
14 A. That is correct, sir.
15 Q. Okay.
16 MR. IVETIC: What ought to be coming up hopefully soon might need
17 to be flipped around so we have it lengthwise, rotated, I should say,
18 rotated 90 degrees, as is true with both of them.
19 Q. And sir, do these photographs accurately depict the manner in
20 which the measurements were taken of the door in question by your
21 colleague while you were taking photographs?
22 A. That is affirmative.
23 Q. And we see -- the door appears to be considerably shorter than --
24 it doesn't seem to be full height. What were the dimensions of the door,
25 do you recall, if that's on your summary report?
1 A. This dimension is 5 foot, 4 inches tall. Yes, 5 foot, 4 inches
2 tall, and --
3 Q. And you're indicating the photograph on the left. With respect
4 to the photograph on the right, what portion of the door are we looking
5 at that is being measured there, and according to the measure there
6 appears to be about 9 inches in width?
7 A. That is just the opening, the windows opening. It's 9 inches.
8 MR. IVETIC: Thank you, Your Honours. I'd ask for these
9 photographs to also be screenshot and admitted as the next 1D exhibit
11 JUDGE ROBINSON: Yes.
12 THE REGISTRAR: Exhibit 1D173, Your Honours.
13 MR. IVETIC: Your Honours, subject to just tendering, again, the
14 three items I believe that we have tendered that the Court has reserved
15 ruling on, the report and the photograph set for Bikavac and the
16 photographs set for Pionirska, subject to those three outstanding
17 matters, I have no further questions in direct examination for this
18 witness, and I pass the witness.
19 JUDGE ROBINSON: Mr. Groome.
20 MR. GROOME: Thank you, Your Honour.
21 Cross-examination by Mr. Groome:
22 Q. Good afternoon, Mr. McCoy. I'm actually going to ask you --
23 JUDGE ROBINSON: Just a minute. Sorry, Mr. Groome. I should say
24 that we will sit this afternoon. 1.45. What courtroom? We don't know.
25 You'll be informed. You'll be informed. The witness tomorrow is expect
1 to last how long, Mr. Alarid?
2 MR. ALARID: Only because the witness was objected, to I say it
3 could be longer. Dr. LaGrange, in reality the opinion is very short and
4 very technical, so I mean from most of it would be background and what I
5 reviewed, but the opinion itself is short. I would hope to take an hour
6 in total court time with direct exam, and absent to serious challenge to
7 her qualifications, I think that would be fair.
8 JUDGE ROBINSON: Very well. Continue.
9 MR. GROOME: Thank you, Your Honour.
10 Q. Mr. McCoy, I want to ask you a lot of questions, I want to show
11 some photographs to you. I want to get -- ask you to recount your
12 observations, and the Chamber has found you to be an expert, so I will be
13 asking you some of your opinions. I think we can expedite this if you
14 try to keep your answers short as possible. I don't mean to unfairly cut
15 you off. Recognise that Mr. Ivetic will have another opportunity to ask
16 you questions if he thinks that there's more that he wishes to bring out
17 from you, but I would ask you to try to keep your answers as short as
19 Now, the first question I want to ask you, at transcript page 53,
20 I'm going to quote what you said, and this had to do in relation to your
21 conclusion about there not being a fire inside the room based upon your
22 examination of the exterior wall. Do you remember that? It was early on
23 in your examination.
24 A. Yes.
25 Q. Now, the quote is:
1 "If this basement room was involved in a fire of any magnitude or
2 any intensity, there would be blackened char marks on the exterior
3 portion of these windows. Just like any structure fire, the windows
4 would -- if the fire was large, the windows would break, and a smoke
5 plume would discolour the area directly above the windows that broke
7 Do you remember saying that?
8 A. Yes, sir.
9 Q. You said something similar at transcript page 58:
10 "Dark discolouration and deep embedded discolouration into the
12 Then you went on to say a few sentences later:
13 "Any porous object will succumb to discolouration from the soot
14 and silt with smoke produced by a large, intense fire."
15 Have I quoted you correctly?
16 A. I believe so.
17 Q. Now, what I'm interested in asking you now is, how significant is
18 your finding, no sign of smoke or soot on the building to your finding
19 that there's no fire inside, no intense fire?
20 A. It's very significant. Again --
21 Q. I thought that. I mean, it seems like a very significant piece
22 of evidence that you've given us your opinion as there was no fire;
24 A. No large, intense fire.
25 Q. No large, intense fire. Okay. I'm going ask that we call the
1 picture Y020-3683. Now, my view is that these monitors don't do justice
2 to the pictures you took. You took very high-resolution photos, did you
4 A. I did.
5 Q. So I've asked some prints to be made of the photographs. So in
6 addition to seeing it on the screen, I've asked the usher to put a copy
7 on the ELMO next to you so you can see the original print, and there's an
8 additional copy that I'm going be asked to be put up on the Bench so that
9 each of these -- they're in the order that I will use them. I would ask
10 that they get handed up one at a time. I won't use them all at the same
11 time. But I'm going to ask that that first picture, it's Y020-3863.
12 And while the usher is getting that set up, you said that you did
13 a 360 - I believe was the word you used - of the building. Can I take
14 that to mean that you had not only examined the basement, you examined
15 the entire building; correct?
16 A. I examined the basement because that was the room in question. I
17 did not do a thorough examination of the complete structure. I was not
18 directed to. This case is a little different. I was told to investigate
19 a fire in the basement. I was not told --
20 Q. Okay. So can we say that you did -- you did examine the entire
21 building, but you did a more thorough and meticulous examination of the
22 room down -- the lower room?
23 A. That is correct.
24 Q. Okay. Now, showing you a picture, it's Y020-3683, can you tell
25 us where you took this picture? It's on the ELMO next to you.
1 A. Without seeing the ones prior, I couldn't tell you exactly where
2 this was. It wasn't in the basement. I'll tell you that right now.
3 Q. It wasn't in the basement?
4 A. No.
5 Q. If I fell you that it is -- the ground floor, we use different
6 terminology here in Europe
7 basement, it's the ceiling of that going into the floor of the first
8 floor above. Do you know the floor I'm talking about?
9 A. Okay. Can you rephrase that?
10 Q. So the ceiling in the basement was a concrete slab; correct?
11 A. Correct.
12 Q. So the floor on the ground floor, what you and I in America
13 call the first floor, is a concrete slab; correct?
14 A. Correct.
15 Q. Now, this is a two-storey structure above the ground.
16 A. Above that cement slab?
17 Q. Yes. Correct?
18 A. Correct.
19 Q. So this is in between the ground floor and the floor above it, so
20 the bottom portion of this would be the ceiling of the ground floor --
21 A. Of the --
22 Q. The first floor --
23 A. Okay.
24 Q. Try not to get too confused here. We would call it the first
25 floor in the US
2 where you would come in at the ground, and it's the floor of the first
3 floor, the top floor in the building. How about we do that?
4 A. Okay.
5 Q. Now, is there any doubt that this is terribly, terribly burnt?
6 A. No. No doubt in my mind at all.
7 Q. And if it was the floor above -- in the top floor, it's
8 reasonable to infer that it was covered in wood. There were other pieces
9 of wood that covered this to make an entire floor.
10 A. This is not part of the floor itself. This is a beam that
11 supports the floor.
12 Q. Right. So this is a rather heavy beam, and it actually looks
13 like it's built into the wall; correct?
14 A. It appears to me.
15 Q. It looks like it's completely burnt.
16 A. It's not completely burn.
17 Q. Sorry, maybe that's a bit of an exaggeration. Substantially
19 A. Less than half of its total mass is gone.
20 Q. And we can't see any other wood connected to it, so whatever
21 floor-boards, whatever other wood was used to make the structure of the
22 top floor is gone, presumably burnt; correct?
23 A. I will not presume that it was burnt.
24 Q. What do you think happened to it?
25 A. Fires are very dynamic. If you have beams such as this, the
1 floor will sit on this, and they'll partially burn away, and then when
2 they lose their stability by resting on one another, they'll fall. They
3 won't completely be consumed.
4 Q. Okay, but would you characterise a floor that would leave nothing
5 other than this left, would you characterise that as a large fire?
6 A. If it all happened at once.
7 Q. Okay. You're an expert. You're allowed to assume certain facts.
8 Let's say it happened at once. Was it a large fire that completely
9 decimated the top floor?
10 A. Yes, but I cannot say without a shadow of a doubt that it did all
11 happen at once. It could have been --
12 Q. You can't say that about the basement either, can you? Nothing
13 you can say about the basement is beyond a shadow of a doubt, is it?
14 A. With a hundred percent certainty, I cannot say that this floor
15 burnt at once.
16 Q. Okay. Let me ask you this. With respect to the soot that you
17 talk about, if the floor-boards burnt on Monday, the fire went out. If
18 the floor beams burnt on Wednesday, fire went out. If the underlying
19 support structure burnt on Saturday and went out, would we see the soot
20 that you're talking about above it?
21 A. Depends how much moisture's in the air, how much rain this
22 building has received.
23 Q. Can we zoom out a little bit? I mean, there are a number of
24 pictures like this. I picked this one for no particular reason. Is
25 there any sign of soot or smoke or any of the phenomena that you've
1 talked about above the substantially burnt timber?
2 A. Okay. Well --
3 Q. Yes or no, sir, and if there is, can you point to where you
4 say -- the smoke or soot that you can talking about?
5 A. There's some discolouration here, here, slight there, and closer
6 there, assuming this wall was not covered at the time of the fire. I
7 mean --
8 Q. So if it were covered at the time of the fire, that would be
9 different. You wouldn't see the smoke and soot; is that correct?
10 A. Are you asking me to say what this building looked like prior --
11 at the time of the fire?
12 Q. No. Obviously you can't say that.
13 A. Okay. Okay.
14 Q. What I'm asking you is you said that you drew a very important
15 conclusion about what happened in the basement floor based on the absence
16 of soot and smoke in the windows. You talked about the smoke plume going
18 A. Yes. Yes.
19 Q. There's no doubt that there was smoke involved with this beam, is
21 A. No, there was smoke production.
22 Q. Where is the smoke plume effect that you've told us about?
23 A. Okay. Over time, exposed to the elements, again, this is a very
24 moisture-rich climate. This is outside. It's exposed to the elements.
25 Q. So -- let me ask you then. So is it possible that exposed to the
1 elements, the smoke and soot that you've talked about can dissipate over
2 time? Yes or no, sir.
3 A. Okay. On this particular --
4 Q. Sir, just in theory. Let's talk about theory first. Yes or no,
5 can it dissipate over time?
6 A. Possible, yes.
7 Q. Do you think that's why on this picture we do not see any
8 evidence of soot or smoke, picture you took about six weeks ago?
9 A. Again, you're asking me -- I mean, it's all encompassing,
10 all-inclusive; to say this is the way the structure was without any wall
12 Q. Okay. It seems that we're talking about two possibilities: One,
13 there was no covering on this brick at the time of the fire; and two,
14 there was a finished wall surface on this brick. Okay? Do you agree
15 with me?
16 A. Sure.
17 Q. There's no other possibility; correct?
18 A. There probably is, but --
19 Q. If you think of one, please tell me what you think it is and
20 we'll talk about this as well.
21 A. Many different variations of what we talked about.
22 Q. When you say many variations, what do you mean? Types of wall
24 A. Yeah. Wood, paper --
25 Q. Let's say for the purposes of our discussion now, it was a
1 flammable material, okay?
2 A. Sure.
3 Q. Let's take the first instance. There's nothing on this wall.
4 Let's say it was a partially built house or the people didn't finish the
5 walls, okay? Why is there no smoke or soot of the type you've described
6 above this obviously burnt beam?
7 A. There is, in certain areas, and if --
8 Q. Can you point to me -- you said it would happen directly over the
9 window. So I imagine that if there's going to be smoke or soot here, it
10 should be directly over the source of the smoke.
11 A. Okay. There's -- when there's a fire, it's pressurised, and if
12 it's an interior fire, the smoke is going to escape through the least
13 resistant area, being window openings and door openings. So you have
14 dark areas concentrated above these openings, okay? I cannot tell you --
15 okay, we're saying that this was the floor. If the fire started in the
16 roof of the structure, the apex, and that burnt off, and then this burnt,
17 this floor area burnt, it wouldn't be pressurised.
18 Q. Well, let me ask you this, then. Doesn't it violate the number
19 one principle of fire investigation, fires start down low, and as they
20 burn, they move upward and outward? Fires usually don't start in the
21 roof and work their way down to the basement, do they?
22 A. Okay, you can't say usually. There's so many variations.
23 Q. Let's say --
24 A. Listen.
25 MR. IVETIC: You've got to let him answer the question.
1 THE WITNESS: There is a phenomenon known as drop-down, okay?
2 Something on fire up high drops down. You're basically saying that
3 there's no attic fires ever, and that's not true.
4 MR. GROOME:
5 Q. I'm not saying that, sir. What I'm saying is that -- I'm asking
6 you to explain a very simple question. Why is there no smoke or soot
7 directly above what is an obviously substantially burnt beam that's built
8 into the wall?
9 A. Many variations. Many possibilities. If, in fact, the roof
10 burnt and developed down, the phenomenon called drop-down, something on
11 fire with gravity falls, drops, starts something lower, like this floor,
12 on fire, there's no build-up of pressure to embed itself in the mortar,
13 in the brick, and these bricks are fairly smooth in nature --
14 Q. Let's talk about that for a minute. They're actually pretty wide
15 concrete mortar joints between the bricks; correct?
16 A. That is correct.
17 Q. And the material, as you can see, it's clay. It's a clay brick.
18 I mean, you were there; right?
19 A. Yes, sir.
20 Q. And the material that they're made of is very similar to what
21 flower pots are made of in the US
22 A. Sir, I'm not a flower pot expert or a brick expert. I don't know
23 what material they're made of. They look similar in colour. They're --
24 MR. CEPIC: I apologise for interrupting but sometimes we have a
25 problem in B/C/S translation because the speakers are going so fast --
1 JUDGE ROBINSON: We'll have to ask both Mr. Groome and witness to
2 observe a pause between question and answer.
3 THE WITNESS: Sure.
4 MR. GROOME: My apologies.
5 THE WITNESS: My apologies, likewise.
6 MR. GROOME: Your mike is on, Mr. Ivetic.
7 MR. IVETIC: It's not, actually.
8 MR. GROOME:
9 Q. So, are you saying -- I mean, these tiles aren't glazed tiles.
10 There are such a thing as clay tiles that are glazed and have a
11 glass-like surface. These tiles were not glazed, were they?
12 A. No, they were not.
13 Q. Now, you talk about the reasons why this may not have the smoke
14 effect that you've talked about, is because there may have been a
15 drop-down fire and there was no pressure; correct?
16 A. Possibly.
17 Q. Well, the portion on the back exterior of the wall where you said
18 you would expect to find the smoke effect, that's an exterior surface.
19 There's nothing to pressure that smoke or to hold it against that wall,
20 is there?
21 A. Correct. Intensity of heat at -- we're talking hundreds,
22 500-plus degrees in temperature, possibly even reaching a thousand
23 degrees in temperature at that window. The temperature above here is not
24 of such an intensity.
25 Q. How do you know that? Aren't you speculating now?
1 A. Okay. There's BTUs, British thermal units that are measured
2 inside structure fires. It's contained, and the pressure is finally
3 built up enough to release, release the heat through a window. There's
4 nothing keeping in heat or pressure in this area.
5 Q. Sir, we've -- most of us have the experience of being near a
6 smokey fire or seeing soot, from perhaps a fireplace, collect on the
7 mantelpiece or smoke from a barbecue staining something in our yards.
8 Very often, it can be simply wiped off with a damp cloth; is that not
10 A. Possibly in some cases. I do have a fireplace in one of my
11 rental houses, and I lived there for five years, and I cannot get the
12 stain off the brick.
13 Q. Well, I'm sorry to hear that, but do you allow for the
14 possibility that the weather, 17 years of snow, of rain, of wind could
15 have removed soot from the outside of this building?
16 A. Possibly outside, but inside there's pristine -- I mean, it's not
17 inconceivable. I don't know what the annual snowfall is in Visegrad or
18 rainfall, for that matter. I don't know the torrential rains or winds.
19 I cannot comment on the weather.
20 Q. If you're going to draw such a significant conclusion about the
21 outside of the structure, wouldn't that be something that you'd want to
22 consider? Does it rain one day a year, or does it rain every day of the
24 A. In my opinion, there should be -- with an intense fire in the
25 basement, there should be black demarcations above the windows, and for
1 that matter, even more so inside, which there's not.
2 Q. Let me move to a different area now. At transcript 29, you made
3 the comment that the first step that you do when you go to a fire scene
4 is to determine that there are no threats to myself or my colleagues. Do
5 you recall that?
6 A. Yes, sir.
7 Q. So even if there was a very important fire for whatever reason,
8 because of who died in it or what property was in it, would that still be
9 the first step that you would take, to determine whether you and your
10 colleague can safely do your work?
11 A. Okay. Yes. In peace-time, yes.
12 Q. Okay. So is it different than if there's an armed conflict in
13 the area?
14 A. I can't say. I've never been expose to that type of threat. In
15 peace-time, what I do on my day-to-day job, what I do is I make sure I'm
16 safe, I make sure my partner's safe, and we do the task.
17 Q. Okay. Now, let me just ask the questions, and again you'll have
18 an opportunity to flesh them out with Mr. Ivetic. So in peace-time, no
19 matter how significant the fire may be to the general public or to
20 whomever, still, the number one thing that has to be done is you have to
21 decide whether it's safe for you and your colleagues to go into that
22 building; correct?
23 A. Yes.
24 Q. And the threats that you are going to consider would be the
25 structural integrity of the building, is it going to collapse on you when
1 you're in there doing your job; correct?
2 A. Correct.
3 Q. Perhaps if it's in an area where there's -- the police are having
4 a shoot-out with a gang, you would want to wait until that is resolved
5 before you go in there; correct?
6 A. If there's viable patients, viable people that were injured, we
7 would make every effort to make the scene safe and get them out as soon
8 as possible --
9 Q. Right. So it's clear, I'm not asking you about the situation
10 where you're trying to save someone's life, that's a different task that
11 you also do. That's a different task than what we're interested in here.
12 What I'm interested in is the task of documenting or collecting evidence
13 at the fire scene. Would you do that in the middle of a shoot-out
14 between police and gang members?
15 A. No, but it should be done as soon as possible --
16 Q. Granted.
17 A. -- afterward.
18 Q. Okay. Now, you say in your report on page 1, paragraph 2:
19 "Photography of a fire scene is best done during or as soon as
20 possible after a fire to record the scene in an undisturbed condition."
21 Can you explain why that is? What types of information could be
22 lost if the fire investigator is not there as soon as possible?
23 A. If a fire investigator arrives while the fire is still in
24 progress, what we do at that point would be photograph the chain of
25 events as it's happening. If the fire first vents through the ceiling
1 through the roof on the north side, then progresses to the south side, it
2 will heed us -- it will lead us --
3 Q. Excuse me, sir. Excuse me. My question was simply, what types
4 of information can be lost? Please don't digress into long discussions
5 about other matters. Can you tell me, what other types of information
6 are lost if a fire investigator cannot get to the scene within a
7 reasonable period of time?
8 A. Reasonable period of time meaning years?
9 Q. Well, could I ask you that, if you want to answer that question
10 first. What would you consider a reasonable period of time in which
11 evidence collection has to be done.
12 A. Within hours.
13 Q. Okay. If for some reason that cannot be done, so we're talking
14 about, let's say, the next day, what types of evidence is lost?
15 A. Within a day, possibly the samples -- if you were to take samples
16 of hydrocarbons, areas where you think an ignitable liquid was poured to
17 accelerate the fire. Other evidence like laten, finger-prints, comes
18 from your finger-tips, the oil on the surface, and with time, those go
19 away, time meaning hours, maybe even a couple of days. They could start
20 to degrade.
21 Q. Okay. So within a few days, we run the risk of losing trace
22 evidence of chemicals that may have been used to start the fire as well
23 as finger-prints; correct?
24 A. Correct.
25 Q. Anything else?
1 A. Within days -- right now, nothing comes to mind.
2 Q. Okay. If something does come to mind, please just let me know,
3 and I'll ask you the question again. Now, am I right to say that the
4 longer you wait to look at the scene, the less reliable are the
5 conclusions that can be drawn from an examination of the scene?
6 A. That's true, but it does not mean that evidence completely
8 Q. No, and as we see here, even 17 years later, there are, for
9 example, the burnt beam that I first showed you, that's still there.
10 A. Again, I don't know how long ago that burnt, so --
11 Q. Now, while we're looking at this beam, if you were to go up and
12 rub your hand on this beam that's been washed by countless rainstorms,
13 had snow and ice sitting on it for months of the years over the past 17
14 years, are you saying that if I brushed my hand on it, I'd still come off
15 with black soot the same as if I brushed my hand across a recently burnt
17 A. Again, on in particular beam, sir, I don't know. I didn't test
18 this beam.
19 Q. But you agree with me, after a certain period of time --
20 A. I can get black marks off of this beam.
21 Q. By just rubbing your hand, it'll actually still come off on your
23 A. I can get black marks off of that beam, whether I have to dig
24 down lower in the deep-seeded char. This is charcoal. It will produce
1 Q. The floor-boards, did you dig down into the floor-boards?
2 A. No.
3 Q. So when you made your conclusion that it wasn't burnt wood, you
4 talked about -- I can look up the quote, but you talk about there was no
5 transfer of material, and what I took that to mean was that in your
6 contacting it with your feet or just touching it with your hands, no soot
7 came off in your hands. Is that what you meant?
8 A. That is correct. Again, there's other clues, such as the
10 Q. Okay, We'll talk about the alligatoring in a few minutes, if you
11 don't mind. But it is possible over time particularly with burnt wood
12 that's exposed to the weather, we can rub our hands on it and we won't
13 get any black soot on our hands; correct?
14 A. Again, I didn't -- you say this was burnt 17 years ago. I don't
15 know, and I did not test this particular object.
16 Q. Now, in addition to the passage of time affecting the recovery of
17 evidence, there are -- there's also the weather, which we've been talking
18 about. That's also a possibility; correct? The record can only pick up
19 an audible answer.
20 A. Oh, yes. Yes.
21 Q. And the passage of time also creates the potential for someone
22 who wants to trick you as a fire investigator to conceal the crime, gives
23 them an opportunity to go back there and remove evidence or attempt to
24 clean it up; correct?
25 A. Yes.
1 Q. So that's another reason why it's important to get there as soon
2 as possible; correct?
3 A. Yes.
4 Q. Is it fair to say to you as an investigator, if there's a delay
5 between the time of the fire and the time that the evidence -- there's an
6 attempt to collect evidence there is a delay, you as the investigator
7 must consider whether that delay has had any impact; is that not correct?
8 A. That is correct.
9 Q. So you would consider whether there were people who innocently
10 and inadvertently did something to affect the forensic examination? It
11 doesn't have to be with bad intent. Someone could move in and clean up
12 the place; correct?
13 A. It's a possibility.
14 Q. So a neighbor with no connection to the case might go in and
15 maybe try to clean it up, try to move into the location; correct?
16 A. It's not inconceivable.
17 Q. And you would need to examine that possibility, would you not?
18 A. Again, if it was brought to my attention, yes.
19 Q. Would you wait for it to be brought to your attention, or would
20 you attempt to -- would you talk to the landlord and say, Look, has
21 anyone been in the apartment since the fire? Talk to the neighbors, Have
22 you seen anyone --
23 A. Yeah, we would --
24 Q. You would, wouldn't you?
25 A. Yes.
1 Q. So you would be active to trying to find out whether anyone had
2 done anything to contaminate the scene or change the scene; correct?
3 A. Yes.
4 Q. Now, would you also need to consider who might have an interest
5 in the destruction of physical evidence, have the perpetrators of the
6 crime returned afterwards and changed the scene in an effort to conceal
7 what had occurred there; is that not correct?
8 A. Yeah, it's all possible.
9 Q. In the 111 fire scenes that you investigated, have you ever had a
10 case in which either one of these things happened, either someone
11 innocently impacted the scene or maliciously impacted the scene?
12 A. In the time frame between the fire was extinguished and I got on
13 the scene, or after I left?
14 Q. I guess what I'm saying is during the time that the fire occurs
15 and the time that you're there to collect your evidence, have you ever
16 had a case where someone either innocently or maliciously interfered with
17 that scene before you were able to process it?
18 A. Maliciously, to the best of my recollection, no; innocently, yes.
19 Q. Okay. Now, in this investigation, when you were asked to go look
20 at this building, did you ask those questions in this case? Did you
21 consider who might have made use of this structure in 17 years or who
22 might have maliciously interfered with it?
23 A. There was talk with close -- again, I don't speak the language,
25 Q. Sure.
1 A. There was talk with neighbors, owners of businesses close by,
2 tenants or occupants of structures, and I'm sure if something like that
3 would have been said, the translators would have informed me of that,
4 that somebody supposedly moved in or remodelled or --
5 Q. So you went with a translator to the neighbors, and you asked all
6 the neighbors whether they had any information about someone making other
8 A. Translator, someone that speaks the language, yes --
9 Q. Please tell me what happened. How did you exclude the
10 possibility that someone moved in and made other use of the property?
11 A. If the person that spoke the language heard of anybody altering
12 the property since the fire, I would have been informed.
13 Q. Who's the person that spoke the language?
14 A. The Defence counsel.
15 Q. Mr. Ivetic?
16 A. Yes.
17 Q. So you were dependent on Mr. Ivetic to do what is an important
18 part of your fire investigation; correct?
19 A. Again, I'm not fluent in the language, so yes.
20 Q. You didn't record the results of those conversations anywhere in
21 your report, did you?
22 A. No.
23 Q. In the 111 cases that you've examined, what's the longest
24 interval of time that elapsed between the fire and your examination of
25 the scene?
1 A. This one case, it was less than a week, four days, I think,
2 approximately four to five days.
3 Q. Now, looking over your report in this case, I don't see any
4 indication that you considered whatsoever the possibility that in the
5 more than 16 years, some perpetrators or some people attempting to help
6 perpetrators may have returned to interfere with the scene. Did you make
7 any efforts or did you give any consideration to the possibility that the
8 perpetrators of this fire may have returned and to try to sanitise it to
9 remove evidence?
10 A. It is a possibility if, in fact, there was a fire; but there's
11 certain items still intact in the basement, in the room that lead me to
12 believe there was not a fire of great intensity. So if there was not a
13 fire of great intensity, why would I assume somebody might have gone back
14 to clean up what --
15 Q. Okay. So let me see if I can follow your thought process.
16 You're saying when you go into the scene, if you do not see signs of a
17 fire of great intensity, there's no need to consider that some
18 perpetrator could have come prior to you being there and taken the
19 evidence that there was a fire of great intensity. Is that what you're
20 saying? Is that your thought process?
21 A. My process -- I went to the scene. There's intact, clean wood in
22 the structure that's embedded into the concrete that could not have been
23 replaced. It's not new. It was there at the time they poured the
24 concrete walls.
25 Q. Okay. So based upon your discovery of a single piece of wood --
1 A. It's not single, but go ahead.
2 Q. How many pieces of wood did you find that were embedded in the
3 concrete that had no signs of burning.
4 A. The entire door frame including the threshold --
5 Q. Okay.
6 A. -- and the single piece of wood you're talking about.
7 Q. So it's the door frame entering, and it's the single strip of
8 wood that's underneath the window immediately to your left?
9 A. That's pristine.
10 Q. Okay. So based upon your discovery of those two pieces of wood
11 those two areas of wood that had no fire damage, you drew the conclusion
12 that perpetrators could not have returned to sanitise that room; is that
14 A. Along with other evidence. It's not just those two things. It's
15 the pipe chase that's clean and not discoloured. It's protected.
16 It's -- there's other -- there's no signs of large fire in this room.
17 Q. Now, let's talk about the pipe chase. You go back and forth
18 between calling it a pipe chase and a chimney. A pipe chase is a gap in
19 a slab floor that allows electrical wiring and plumbing pipes to be
20 passed through the slab to the floor above; correct?
21 A. That could be one definition, yes.
22 Q. What's the other definition, please?
23 A. Give me a dictionary. I'll look it up for you.
24 Q. There's a dictionary here, but based on your training, what is a
25 pipe chase? The way that you use it.
1 A. It transfers pipes from one floor to another, but it's usually
2 all the way up. And this particular hole or whatever you want to call
3 it, it could have used pipes. There could have been wire -- there could
4 have been a chimney. I don't know what they used it for. I wasn't the
5 designer of this structure. I don't know what their intended use for
6 this hole that goes from the ceiling of the basement floor all the way
7 up. I don't know what their intended use was.
8 Q. Well --
9 JUDGE ROBINSON: Mr. Groome, how much longer will you be?
10 MR. GROOME: Substantially, Your Honour.
11 JUDGE ROBINSON: Substantially. You would utilise the hour and a
12 half, this afternoon?
13 MR. GROOME: Fully, Your Honour.
14 JUDGE ROBINSON: Fully. All right. We'll take the break now,
15 and we'll adjourn, in fact, until 2.15.
16 MR. GROOME: Your Honour, we're adjourning to this --
17 JUDGE ROBINSON: Back in this courtroom, yes.
18 --- Recess taken at 1.46 p.m.
19 --- On resuming at 2.18 p.m.
20 [Trial Chamber confers]
21 JUDGE ROBINSON: Private session.
22 [Private session]
19 [Open session]
20 THE REGISTRAR: We're in open session.
21 JUDGE ROBINSON: Yes.
22 Yes, Mr. Groome.
23 MR. GROOME: Does Your Honour wish to say anything about 15 bis
24 before we proceed? Judge David?
25 JUDGE ROBINSON: Yes. In the absence of Judge David,
1 Judge Van Den Wyngaert and myself sit under Rule 15 bis. Thanks.
2 MR. GROOME:
3 Q. Mr. McCoy, I've gotten a little bit ahead of myself, and I want
4 to return to the picture that's still on the ELMO. When we were talking
5 about that, we talked about two possibilities: One, no wall covering.
6 But we never talked what would happen if there was a finished wall
7 covering, how that would impact the evidence of smoke. Am I right in
8 concluding or suggesting to you that if the wall was covered with a
9 finished wall covering at the time of the fire, and sometime after the
10 fire the wall covering were removed, that you would not expect to see the
11 types of smoke that you -- the phenomenon that you talked about you
12 expect to see outside the windows; is that correct?
13 A. Without saying exactly what kind of wall covering, it's possible.
14 Q. Well --
15 A. And there is discolouration. I've showed you areas of
17 Q. But I guess I got the impression when you were describing the
18 absence of smoke outside the window, I mean, it seemed something quite
19 remarkable. And when I look at this, I don't see the same type of -- it
20 seems minimal. You say you see it -- I would suggest to you that the
21 darker areas are equally consistent with just dark clay in the
22 manufacture of the bricks.
23 A. Again, I'm not a brick expert. I don't know if there is such a
24 thing as dark clay, you know, when you're talking about these red clay
1 Q. Well, am I right in suggesting to you that if there were a wall
2 covering, depending on what the wall covering is, it might diminish the
3 appearance of smoke and perhaps even eliminate it.
4 A. Again, what wall covering are you talking about? I mean,
5 wallpaper? Particle board? What do they use in this area, in this area
6 of the world?
7 Q. I'm sure they use a variety of materials as they use in our part
8 of the world. If there is a distinction to be made between the type of
9 wall covering -- I mean, it seems clear that there wasn't wallpaper on
10 this; correct?
11 A. There could have been. I cannot say one way or other what --
12 Q. You think it's possible that someone would have put wallpaper on
13 this rough brick surface?
14 A. There would have bin something hopefully affixed to the brick and
15 then -- I mean --
16 Q. Can we just expedite this by saying -- let's divide wall
17 coverings, finished wall coverings into two types: Ones that are
18 flammable and ones that are not flammable, okay? Do you accept that way
19 of moving forward?
20 A. Sure.
21 Q. Is there a difference between surfaces that are not flammable and
22 surfaces that are flammable?
23 A. Yes.
24 Q. So what would be the -- would a non-flammable surface, finished
25 wall covering, diminish or eliminate the presence of smoke?
1 A. Non-flammable such as asbestos would diminish the existence of
2 fire by-product.
3 Q. Okay. If it were, let's say, wood panelling, would that diminish
4 the existence of smoke. If the outside of the panelling were burnt but
5 was still intact when the fire was out, would that diminish the kind of
6 presence of the smoke you're talking about?
7 A. It all depends on the extent of the fire and how much of the
8 panelling was consumed.
9 Q. Let's say the entire panelling had alligatoring and was charred,
10 the surface that's facing the inside space of the room that caught fire.
11 A. And is there an air space behind the panelling, or is it --
12 Q. If that makes a difference -- you tell me. Let's say there is an
13 air space behind the panelling.
14 A. There would be slight evidence of smoke or soot discolouration on
15 the brick.
16 Q. So if there was a small air space behind the panelling, you
17 expect to see some slight soot, but the panelling would protect the
18 sub-straight, the underlying wall from marks of soot and smoke?
19 A. Again I think you're trying to back me into a corner.
20 Q. I'm just trying to get a straight answer. You tell me what the
21 variables are. We'll fix some of them. We'll talk about them but --
22 A. The variables on this picture, I cannot say because I don't know
23 if the roof burnt first and it was not a pressurised structure fire.
24 Q. But I'm asking you in theory, I'm asking you in theory if there's
25 a flammable wood surface inside with a small air space behind it, am I
1 not correct in saying unless that wood surface burnt entirely through,
2 that even if the outside were alligatored, even if the outside were
3 charred, there would be a diminishment, not complete absence, but there
4 would be a diminishment of the amount of soot that made its way into the
5 rough surface of the concrete; correct?
6 A. Correct.
7 Q. Okay. Now, if I can just go back to -- I was then asking you
8 about the possibility that people might have interfered -- people
9 maliciously may have interfered with this. Did you ever consider that
10 people wanting to conceal what is arguably one of the most serious crimes
11 that occurred during the war, that someone may have want to conceal that
12 fact from the world?
13 A. Yes, that thought did cross my mind.
14 Q. Okay. And can you tell us about what you considered and how you
15 took that into account in your evaluation of the scene.
16 A. My evaluation of the scene is just that. I looked at the scene.
17 I went into the structure after I did my 360. My 360 revealed no --
18 Q. Okay, let's not repeat because we do want to try to get you moved
19 along and have other witnesses, so based upon your physical examination
20 of the site, you made a determination that people did not maliciously try
21 to interfere with the site.
22 A. I did not say that.
23 Q. Okay. So did you make a determination that someone did not, or
24 did you make a determination that someone possibly interfered with this
1 A. My determination was that it is slightly possible that somebody
2 went in there and cleaned up, tried to clean up, but --
3 Q. Okay, let me just stop you there before we get too far afield.
4 A. But with my experience, I know for a fact that there was not a
5 heavy-involved, intense heat fire.
6 Q. Sir, you keep coming back to that, but I want to try to break
7 down that conclusion and see how you came to it. Just one second,
9 You said that it was slightly possible that someone went in and
10 cleaned up the site. What did you see that made you think that it was
11 possible that someone went into the site and attempted to do some
13 A. Again, there was pieces of the floor. Whether they had been
14 completed rotted away or somebody came in and removed them, again, I --
15 Q. So there are some portions of the floor that had been entirely
16 removed from the building exposing the earth underneath? Is that a fair
17 statement of what you found?
18 A. Yes. Yes. I don't know how they were removed or who removed
19 them, but yes.
20 Q. Okay. So you concluded by seeing that -- you could see the dirt
21 floor, that someone had removed whatever material was above that dirt
22 floor; correct?
23 A. I don't --
24 MR. IVETIC: Your Honour, that misstates the evidence.
25 THE WITNESS: I don't know --
1 MR. GROOME:
2 Q. Would I be fair to say that approximately a third of the floor
3 behind the door was essentially gone; it was just dirt?
4 A. Approximately, yes.
5 Q. Okay. So anything else other than the removal of that portion --
6 or the fact that that portion of the floor was missing, anything else
7 lead you to believe that there was a possibility that someone could have
8 interfered with this site?
9 A. No.
10 Q. Now, this is different from many investigations that you've done
11 in that by the time you were asked to look at this site, there were
12 already two people on trial for what occurred here; correct?
13 A. I believe so.
14 Q. Did you ever ask any questions, what if -- what opportunity if
15 any either of the people on trial for this fire had to get into this
16 site, what access they may have had to this site?
17 A. You're talking after the alleged date?
18 Q. Yes. After the alleged date, you think that it may have been
19 interfered with, did you ever ask, Well, the two people that are accused
20 for -- of this crime, did they have access to the site at some point
21 after the fire?
22 MR. IVETIC: Objection, Your Honour. Again, it misstates the
23 evidence. He never said that he thought -- he said there's a slight
24 possibility. There's a difference, and he specifically stated he doesn't
25 know whether the wood rotted away or was taken away. Mr. Groome is
1 trying to put improper recitation of matters that are supposedly of
2 record, and they are not of record. They are wrong.
3 JUDGE ROBINSON: I don't see much point in the question, quite
4 frankly; but you wish to have the question answered?
5 MR. GROOME: Yes.
6 Q. Well, sir, let me put it to you in your context. If you were
7 investigating a scene in Albuquerque
8 that the owner of the business may have burnt it for insurance money, and
9 you believe that some evidence has been tampered with. Wouldn't you
10 naturally try to account for whether or not the owner of the business had
11 the ability to go back in and tamper with the scene?
12 A. Again, I have -- I had no information that that happened. You're
13 asking me if -- do I think? I said it's a possibility. I never said in
14 fact it did happen. I don't know for a fact that that --
15 Q. Okay, I'm asking you a different question now. I'm asking, did
16 you ever consider whether the two people accused of this crime, did you
17 ever ask Mr. Ivetic or Mr. Alarid or anyone, what, if any, access did
18 either Milan Lukic or Sredoje Lukic have to this site after the 14th of
19 June, 1992? Did you ever ask that question?
20 A. No, I never did, but it was my assumption that they lived in this
21 city; correct?
22 Q. You made the assumption, not me.
23 A. That this is -- they were in this city, I believe. Again, it's
24 not my -- wasn't my task to assume where they resided, where they
25 occupied, what structures they lived in. It was my task to find out
1 origin and [Overlapping speakers] ... cause.
2 Q. Again, just conscious of the time. But this case is a little bit
3 different in that there are two fire sites, and we heard you testify in
4 direct examination that there was evidence that the Bikavac fire site had
5 been completed removed. All the rubble's gone from the house; correct?
6 A. Correct.
7 Q. So someone went to Bikavac and removed the house; correct?
8 A. It's not there.
9 Q. What you saw at Bikavac, you saw the footings and you saw the
10 dirt level with the footings; right?
11 A. Not completely level. There was some grade alterations.
12 Q. Would it have been consistent with someone taking a bulldozer and
13 just levelling the house and loading the material up into a truck and
14 carting it off?
15 A. That would be possibly one way to do it if you can get a
16 bulldozer and are a big dump truck in that tight neighborhood.
17 Q. Okay. Well, let's say you could in Bikavac. What's your opinion
18 as to whether you could have gotten a bulldozer into the Pionirska site?
19 It's a very different site, isn't it?
20 MR. IVETIC: Objection, Your Honour. It misstates the evidence.
21 He just said he doesn't think you can get it in that neighbourhood, in
22 Bikavac. So again, Mr. Groome is reciting improperly the evidence that
23 is of record and is stating it as if the witness has testified to it.
24 MR. GROOME: Your Honour, the record speaks for itself. I fully
25 expect that the Chamber will not use me as evidence but the words of the
1 witness. I ask that I not be continually interrupted when asking
3 Q. Sir --
4 JUDGE ROBINSON: You have an obligation, if you are stating the
5 evidence to state it properly.
6 MR. GROOME:
7 Q. Sir, the Pionirska site, what's your opinion as to whether a
8 bulldozer could have gone down where you walked to examine that room?
9 A. Yes.
10 Q. It could?
11 A. Yes.
12 Q. And you say the Pionirska site is more accessible than the
13 Bikavac site?
14 A. In my opinion, yes.
15 Q. And why is that?
16 A. It's closer to town. There's not structures that would be in the
17 way of a large bulldozer, but --
18 Q. Knowing now -- knowing that the Bikavac site clearly had been
19 interfered with, did you give consider -- full consideration to the fact
20 that perhaps the Pionirska site had been interfered with as well?
21 A. Can you rephrase that question?
22 Q. I mean, it seems that you're asked to look at two sites. One
23 clearly has been carted away completely. There is nothing, absolutely
24 nothing for to you look at. Is the fact that someone has removed that
25 site, does that not put you on notice to give serious consideration to
1 whether someone has interfered with Pionirska Street fire site?
2 A. It's a thought in my mind, but obviously not to the degree that
3 Bikavac was taken away.
4 Q. Okay. I want to ask you now about the chimney or the pipe chase.
5 Let's see if we can determine whether it's a pipe chase or a chimney.
6 Now, we've talked a bit about a pipe chase. If it were a pipe chase, it
7 would have some openings to the other floors through which pipes could
8 pass; correct?
9 A. Yes.
10 Q. Okay.
11 A. Possibly, unless it was straight to the top.
12 Q. Well, that's not a pipe chase, then. That's a vent, is it not?
13 A. Okay.
14 Q. It's either a chimney vent or I think you said a vent for a
15 toilet; correct?
16 A. Again, I did not design this structure. I don't know what the
17 intended use was for that. I know that it was clean on the inside. It
18 did not have soot.
19 Q. Okay. Well, my question to you is, there are no openings from
20 that cavity into any of the other floors?
21 A. Not that I'm aware of.
22 Q. Okay. I'm going to ask that Y020 -3444 be called up. While it's
23 being called up, a toilet vent, am I not correct in saying that PVC pipe
24 is the most common material used to make a toilet vent?
25 MR. ALARID: Objection, calls for speculation. Facts not in
1 evidence, and I don't know if they use PVC pipe in Visegrad and 1992,
2 Your Honour. I know what the building code is in Albuquerque, New
4 [Microphone not activated].
5 JUDGE ROBINSON: Yes, the witness can answer if he's able to.
6 THE WITNESS: I'm not a PVC toilet expert --
7 MR. GROOME:
8 Q. Well, I noticed on your --
9 A. -- for Visegrad.
10 Q. I noticed on your transcript that you actually got an A in
11 general construction when you studied for your fire department. Now --
12 A. I believe it was building construction.
13 Q. Building construction. And in that course, they never talked
14 about venting?
15 A. Building construction is the actual structural components of the
16 building, not the services, the electrical -- it's -- it's not a plumbing
17 class. It's not a plumbing class.
18 JUDGE ROBINSON: [Microphone not activated] ... Mr. Groome.
19 MR. GROOME:
20 Q. Sir, here's the building next door, and here's a pipe running up
21 the exterior. Is that not the type of pipe that's commonly used to vent
23 A. With all due respect --
24 Q. If you're able. If you can't say, then please tell me you can't
25 say, and I'll ask you another question.
1 A. With all due respect, I do not know what this pipe is made of. I
2 don't know what material. It could be a gutter, carry water off the
3 roof. I do not know what that pipe is.
4 Q. Okay. I'm going to ask that Y020-3361 be brought up.
5 MR. GROOME: I'm not tendering that, so there's no need to save
6 it. I'm go to ask that the witness be given a printed copy of it, again,
7 to make sure that you have the most clear picture.
8 Q. In your general construction course --
9 A. Building course.
10 Q. Building course, Y020-3361, was it required for the fire career
11 that you were pursuing, the building course or the construction course?
12 A. Yes. It's related to the fire service. It did --
13 Q. So that being the case -- I mean, I'm sure at some point you
14 studied chimneys and what materials chimneys are made of; correct?
15 A. Yes.
16 Q. Can you tell the Chamber what a chimney block is?
17 A. I don't know what you mean by that.
18 Q. Let me explain, and you tell me, maybe you know it by a different
20 A. Okay.
21 Q. Ordinary house construction is made by blocks very often 4 inches
22 by 6 inches.
23 A. Okay.
24 Q. Those blocks are not used when building a chimney because there
25 would be so many mortar joints, there would be a risk of CO2, carbon
1 monoxide, escaping into the living area and perhaps killing people;
3 A. CO, just CO is carbon monoxide.
4 Q. I'm sorry. Which ever is the bad one.
5 A. Yes. That would escape --
6 Q. Okay, just yes. We have that. So there's a special block
7 designed for chimneys which is a solid concrete block with a hole in the
8 middle that are simply stacked one on top of the other, and that is hoped
9 to give the best seal in a chimney; correct?
10 A. I've never used that method. We -- where I live, we use
11 stainless steel or insulated pipe, metal.
12 Q. Well, on 3361, we can actually look up --
13 JUDGE ROBINSON: Just a minute, Mr. Groome. May I just inquire,
14 are we still in closed session, or are we in open session?
15 [Trial Chamber and registrar confer]
16 JUDGE ROBINSON: Open session, okay.
17 MR. GROOME:
18 Q. Mr. McCoy, we can see all the way up the chimney here. Would you
19 agree with me that while there are horizontal joints visible, there are
20 no vertical joints in this chimney indicating that ordinary blocks were
21 not used to building it?
22 A. Okay.
23 Q. I mean, do you see any vertical joints?
24 A. No, I do not.
25 Q. Okay. So we know it's a chimney. Now there are two
2 A. I don't know it's a chimney.
3 Q. Okay. So are you aware of any other, from your construction
4 course that you got an A in, are you aware of any other use in a house
5 where you would build with solid concrete blocks from the basement all
6 the way to the roof?
7 A. There are many possibilities, but --
8 Q. Can you name a few of them, please?
9 A. Again, I didn't build this house. I don't know the use of this
10 opening. Possibly, there was a satellite dish on the other structure.
11 Maybe it was to run satellite wires.
12 Q. So you think someone bit this heavy amount of block to run wires
13 for a satellite dish?
14 A. I don't know. I don't know why they -- this opening existed.
15 Q. Okay. Well, let's -- if you would, you're allowed to assume
16 things, and I can ask you theoretical questions.
17 A. Okay.
18 Q. So let me ask you a theoretical question. If this is a chimney,
19 it seems that there are two possibilities: One, according to you, it was
20 never used; or, two, it was used and either rain over 17 years running
21 down the top of that chimney washed away any soot, or someone cleaned it
22 some other way; correct?
23 A. Correct.
24 Q. There's no cap on this chimney?
25 A. It does not appear to have a cap.
1 Q. Okay. Now, you say -- I think the word you used is "pristine."
2 There are two pictures.
3 MR. GROOME: I'm going to ask that the actual printed photograph
4 be admitted into evidence now. That's Y020-3361.
5 JUDGE ROBINSON: Yes.
6 MR. GROOME: And I'm going to ask that you be shown Y020-3360,
7 another picture you took of the same chimney.
8 THE REGISTRAR: That's Exhibit P273, Your Honours.
9 MR. GROOME: And if we could have the ELMO on.
10 Q. Now, did you take this picture?
11 A. I believe so, yes.
12 Q. It doesn't look quite as pristine in this view, does it?
13 A. Well, again, shadows and stuff. I mean, on this one it looks
14 much worse than this one.
15 Q. The 3661 looks much worse, you say?
16 A. No, no, no. From the -- 3360 to my screen, it looks worse.
17 And --
18 Q. Which looks worse, the computer screen or the printed copy of --
19 A. The printed copy, and it does look worse because of the shadows
20 from the one that was just handed --
21 Q. Well, shadows usually travel in a straight line depending on
22 what's create the shadow --
23 MR. ALARID: Objection, calls for speculation, outside the scope
24 of expertise.
25 MR. GROOME: I'm asking him if he can see smoke in the chimney.
1 MR. ALARID: He's asking about shadows and straight lines.
2 JUDGE ROBINSON: [Overlapping speakers]
3 MR. GROOME:
4 Q. Sir, if you look at the bottom of this, it actually looks like
5 there is not smoke or soot at the bottom of this chimney, does it not?
6 A. It looks slightly discoloured, but if you look at the other
7 picture it's very clean, and not just on the lip but all the way through.
8 As far as you can see on that other picture, it's clean. And there's
9 no -- after years and year or a day of burning wood, using this as a
10 chimney, you're going to have soot creosote build-up, which sometimes it
11 might go away over years; but all the way up and just a small amount of
12 water coming down the opening, it's going to have a linear striations
13 where the water runs down the interior of this chimney that you're
14 calling it.
15 Q. Thank you, sir.
16 MR. GROOME: I tender that into evidence, 3360, and with all of
17 these, Your Honour, I'd ask that not only the e-court version, but the
18 hard copy. Again, Mr. McCoy took these pictures at very high resolution,
19 which is lost on the video monitor, these are actual photographic prints
20 of his files.
21 MR. IVETIC: Your Honour, I'm at a loss to how we can proceed.
22 We don't have the ability to make such photographic print-outs. The
23 Defence rooms are not blessed with the same resources as the Prosecution.
24 I'd like to tender the same copies of our pictures as well.
25 MR. GROOME: The Prosecution has no objection to that,
1 Your Honour.
2 MR. IVETIC: How do we get them?
3 MR. GROOME:
4 Q. Sir --
5 JUDGE ROBINSON: Just a minute. You had tendered that into
7 MR. GROOME: Yes, Your Honour.
8 THE REGISTRAR: That's P274, Your Honours.
9 MR. GROOME: And perhaps just to accommodate Mr. Ivetic, at the
10 end of my examination if there are any of the photos that we printed out
11 that he would like to tender, I'd be happy to provide them for him to do
13 Q. Now, sir, did you see any concrete signs inside the building that
14 indicated to you that someone had changed it since the time of the fire,
15 either innocently or maliciously?
16 A. No.
17 MR. GROOME: Can I ask that Y020-3434 be called up.
18 Q. Now, I want to look at the photos of the windows in the room.
19 Did you read the statements of the witnesses?
20 A. No, I did not.
21 Q. You did not read any statements?
22 A. No, sir.
23 Q. Let me tell you what some of the witnesses testified with respect
24 to the windows. They testified that there was glass in the window, in
25 fact it was reinforced glass, and that before escaping at least one woman
1 broke it with her hand after hitting it I think five or six times before
2 being able to escape. Now, knowing that or assuming that there was, in
3 fact, glass in this window, am I correct in suggesting to you that there
4 must have been a frame of some sort, that it would be impossible to mount
5 a piece of glass against the bare concrete as we see it here?
6 A. That sounds very conceivable.
7 Q. Okay.
8 A. That if there was glass, there would have been a frame of some
10 Q. And frames are usually wood, aluminum, and sometimes plastic, a
11 vinyl material; correct?
12 A. The ones that I know, yes.
13 Q. Can you draw just four arrows to indicate the surfaces where you
14 would expect to find the frame of the window, the material that holds the
16 MR. GROOME: Maybe we can have the assistance of the usher.
17 Q. Okay, you've drawn a box around the inside perimeter in blue. So
18 it would be fair to say that at least the side surface would have been
19 covered with some material on which to affix the glass.
20 A. Inside, meaning --
21 Q. I'm talking about the narrow side of the inside of the block;
22 correct? Is that what you intended to draw?
23 A. Yeah, if it was 3-D, it would be -- you know --
24 Q. Okay. So it's the width of the wall, along the width of the
25 wall; correct?
1 A. Yes.
2 Q. Now, the window jams are missing; correct?
3 A. They're not there.
4 Q. Now, didn't you consider that to be a concrete indication that
5 something that has changed since the night of the fire?
6 A. Again, I just saw this structure for the first time two months
7 ago. I don't know what it looked like for the last hundred years.
8 Q. You told us that you didn't read the statements before you did
9 your examination. So did you have the misconception that there was no
10 glass in this at any time?
11 A. There was not a misconception on my part. I don't know what this
12 structure looked like prior to June of 1992 and after. I do not have
13 that capabilities to --
14 Q. But -- I mean, in your experience as a fire investigator, have
15 you ever seen a fire scene where the complete jam of the window is gone?
16 A. Okay. Say that question again.
17 Q. There's no indication whatsoever of the window jam. It's not
18 like there's burnt remnant. It's not like there's a piece on the ground.
19 The window jam that was here is completely missing; correct?
20 A. So you're for certain that there was a window in that --
21 Q. Well, you're allowed to assume facts.
22 A. I'm asking you.
23 Q. Well, the way it works is I can't testify. So I'm asking you to
24 assume that the witnesses are correct, that they say -- you seem to frown
25 when I say the witnesses are correct. Do you ever -- do you disbelieve
1 what I'm telling you?
2 A. I can assume that, I guess.
3 Q. Okay. So assume that the witnesses are correct that there was a
4 window here, and it was surrounded by a jam.
5 A. Okay.
6 Q. The fact that it's completely missing, is that not concrete
7 evidence that someone, either innocently or maliciously, did something to
8 this scene?
9 A. Yes.
10 Q. Okay. Now, I want to show you the other window --
11 MR. GROOME: And actually, I would tender this into evidence.
12 JUDGE ROBINSON: Yes.
13 THE REGISTRAR: That's Exhibit P275, Your Honours.
14 MR. GROOME:
15 Q. Y0 -- sorry, I call up Y020-3478, and this is the second window
16 in the room. While it's being called up, did you not recall that there
17 were blocks actually mortared into the second window?
18 A. I don't believe they were mortared. They were placed. They
19 weren't --
20 Q. Okay. Let's say they weren't mortared. Let's say they were just
21 placed there in that other window. Is that not a concrete indication
22 that after the night of the fire, someone, either innocently or
23 maliciously, changed the room?
24 A. Yes. Innocently or --
25 Q. Correct.
1 A. -- maliciously, yes.
2 Q. Thank you. I'll just wait for it to come up, and then I'll
3 tender it, and then we can move on.
4 MR. GROOME: Do you want me to read the exhibit number again?
5 It's Y020-3478.
6 Q. Can I ask you to circle the blocks that are in the window.
7 A. [Marks]
8 Q. Now, again, in this window, the window jams are missing, and
9 there are blocks in the window instead.
10 A. Okay. When you say they're missing, I don't know for a fact that
11 they were ever there, just --
12 Q. Assuming that they were there at one point, they're missing now.
13 A. Assuming that -- yes, they would be missing. Yes.
14 MR. GROOME: Okay. I would tender that into evidence.
15 JUDGE ROBINSON: Yes.
16 THE REGISTRAR: That's Exhibit P276, Your Honours.
17 Q. Now, it seems that an important part of your conclusions here
18 have to do with this door into the area, and I quote you at transcript 65
19 where you say:
20 "Actually, the complete door frame is untouched by heat or fire
21 of great intensity."
23 A. Yes, sir.
24 Q. And this is actually a primary basis for your conclusion that the
25 fire damage we see in the portico just outside the room has no connection
1 with anything that could have happened inside the room; correct?
2 A. Correct.
3 Q. And because I think you say at transcript 71:
4 "Again, with my knowledge and experience, the fire would have
5 damaged the door, the threshold, the door jam, the door frame, to get to
6 this point. To have this kind of damage on the outside of the room, but
7 skipping the door frame is not conceivable."
9 A. That's correct.
10 Q. So is it your conclusion that in addition to whatever children
11 lit fires or whatever people lit fires inside the room to stay warm,
12 there was another fire at a different time in the portico?
13 A. Yes.
14 Q. And are you able to characterise the magnitude of that fire based
15 on your examination of the alligatoring?
16 A. Being that there's still remnants of the flammables on the wood,
17 the untouched wood, it wasn't -- in my opinion, it wasn't that intense of
18 a fire. If it was, it would have completely destroyed all the remaining
20 Q. Now, on page 3 of the report, my question -- well, you talk about
21 the door, so my question to you is, did you consider whether the door and
22 the door frame were the original door frame that were there on the night
23 of the fire, or did you just assume that they were?
24 A. I did consider that fact, and we did -- me and my colleague
25 looked at the door thoroughly, along with photographing it thoroughly,
1 and we came to the conclusion that it was there. It was -- it's the
2 original door because of the way it's set into the concrete. If you show
3 some photos, I can --
4 Q. Okay. Maybe you could just list them for me now. So it was set
5 into the concrete.
6 A. Yes.
7 Q. What else made you think that it was -- or made you believe or
8 conclude that it was the same door?
9 A. Again, through overhearing my colleague speak, the door opens
10 inward, and I believe someone said there was an explosion or it would
11 have pushed the door outward, and the door -- someone said at some point
12 the door went outward, and that's not true. The door --
13 Q. This door swings inside.
14 A. That's correct.
15 Q. So did you read statements, or did you not read statements?
16 A. Again, I said overhearing my colleagues talking.
17 Q. Okay. So let's take a look at that door, and let's explore that
18 a bit further.
19 MR. GROOME: Could I please ask that Y020-3526 be called up on
20 the screen.
21 Q. I saw pictures of the mission. You all seemed -- or the trip to
22 the site. It seemed that you were all wearing heavy clothes. Was it
23 cold at the time?
24 A. Very.
25 MR. GROOME: Are we able to call that up?
1 While it's being called up, if -- is the Registrar -- looks like
2 something's happening.
3 MR. IVETIC: That's 3526, counsel. I don't know if that's ...
4 MR. GROOME: That's not the picture I was looking for.
5 Q. Let me ask you, do you recall there's a gap to the right of the
6 door, between the door jam and the concrete. Is there not?
7 A. I think there is at some point along the frame.
8 Q. And did you draw any conclusion from that?
9 A. No.
10 MR. GROOME: Can we look at Y020-3348.
11 Q. Now -- maybe if we look to the right now, can you see the gap
12 that I'm referring to?
13 A. Yes.
14 Q. Could I ask you to circle that?
15 A. This one?
16 Q. Yes.
17 A. Okay.
18 Q. So that's the gap. Now, look to the left. Now, what we're
19 looking at is that the edge of the door, the door is swung into the room;
21 A. Yes.
22 Q. Now, the mortice for the lock set, we can see that here, can we
23 not, the hollowed-out portion of the door where the lock is inserted?
24 A. Okay.
25 Q. Can you circle that?
1 MR. ALARID: Objection, calls for speculation. The counsel is
2 testifying, and maybe I just don't see what he sees.
3 MR. GROOME: I'm talking with a man who got an A in construction,
4 and I can ask a leading question. If he knows, he knows. And he has
5 said yes that he does know.
6 JUDGE ROBINSON: Please answer the question.
7 MR. GROOME:
8 Q. Can you please circle the mortice where the lock set would be.
9 A. There is a hole right there.
10 Q. Okay. Now, that's affixed to the same side of the door as the
11 hinges, is it not?
12 A. It's on the same side as the hinges, yes.
13 Q. Have you ever in your life seen a door where the doorknob is on
14 the same side of the door as the hinges are on?
15 A. Okay. If you show other pictures of this door, there's also
16 one --
17 Q. I will.
18 A. Okay.
19 Q. Maybe just answer my question. Have you ever seen a door like
20 that, where the lock set is on the same side of the door as the hinges?
21 A. To the -- no.
22 Q. Sir, is that not unequivocal evidence that this may not be the
24 A. Again, I don't know if this room was ever tenable. I don't know
25 if they used it as a barn. I don't know what this room was used for. If
1 this is the original door, it could have been a remanufactured original
2 door. I mean, if you go to this area, you know these people are not
3 wealthy. They use old bricks to --
4 Q. Well, let's not make generalisations about the people in the
5 area. They to do their best to stay warm in the cold winter. I tender
6 this, and let's look at some other pictures of the door.
7 Now, when you -- I'm sorry.
8 THE REGISTRAR: Exhibit P277.
9 MR. GROOME:
10 Q. Two of the witnesses gave evidence that when they were forced
11 into the room, they actually heard the look being turned -- locked behind
13 A. Okay.
14 Q. Did you overhear that before you went to the scene? Had you
15 heard that, would that have made you more concerned with looking at a
16 door that it's physically impossible to lock because the doorknob and the
17 lock are on the same side as the hinges?
18 A. Okay. It's physically possible that this door had a lock on the
19 other side.
20 Q. So you never entertained the possibility that this might not be
21 the original door that was there the 14th? You concluded that it was?
22 A. Yes, sir.
23 Q. Okay. I tender that, and I'm going to show you another door. I
24 think this will have the other mark that you're referring to.
25 JUDGE ROBINSON: Yes, let's admit that.
1 THE REGISTRAR: That's Exhibit P278.
2 MR. GROOME: Y020-3551.
3 Q. This picture's from the exact same perspective, but in this case
4 the door is closed.
5 MR. GROOME: Is there a problem with the computer?
6 Q. Okay. Sir, now we're looking at the door, the same perspective.
7 The door is closed; correct?
8 A. Yes.
9 Q. Now, there's a small black or small brown square to the right.
10 Is that the place where you're saying might have been a lock set?
11 A. I believe so. Something in this area, you know, could have
12 made -- could have --
13 Q. Could you please circle -- maybe, could you make a more precise
14 circle or draw an arrow to the thing that you think may be evidence that
15 a lock set was on the right side of the door.
16 A. I cannot tell with this picture. I see something black, but I
17 don't know what that is. You're leading me to believe that I think
18 that's a lock set.
19 Q. Well --
20 A. There's something black and square. I want a better picture. I
21 know there's a better picture.
22 Q. Okay. Well, you said that there was something on the other side
23 that you believe might be a lock set. Can you point -- can you circle
25 A. I did.
1 Q. So that's the point that you were talking about?
2 A. Again, again, there's a better picture. I know I took a better
3 picture than this.
4 Q. Okay. I was given 450. Maybe during the break we can make
5 arrangements for you to look and you can find what you think is a better
6 picture. But this is the portion of the door that you were referring to?
7 A. Yes.
8 Q. Now, if the lock set is there, there would have to be another
9 indentation in the door jam for the lock set to fit into; correct?
10 A. I would imagine so, yeah.
11 Q. And there is none on this door jam, is there?
12 A. Is there a better picture? Can you find me a better picture?
13 Q. I will try to find you a better picture. Let me ask you from
14 your independent recollection as you sit here today, when you examine the
15 door jam, and it seems you examined it quite carefully, did you see any
16 indentation on the door jam where the bolt of the door would fit?
17 A. To the best -- to my recollection, no.
18 Q. Okay.
19 A. I can't say for certain that there was an indentation.
20 Q. Okay, but --
21 A. But I don't recall.
22 Q. So you don't recall, or your best recollection is there's none?
23 A. I don't recall.
24 Q. Okay. So let me tender this now, and then I'll show you a couple
25 more pictures.
1 [Trial Chamber confers]
2 THE REGISTRAR: As Exhibit P279, Your Honours.
3 MR. GROOME:
4 Q. Sir, I'm going to ask that you be shown Y020-3543, and I'm going
5 to also ask -- I'm sorry, that's Y020-3543 and Y020-3639.
6 MR. GROOME: If both of those could be placed on the screen at
7 the same time. We could remove this.
8 Q. Now, while this is being brought up, looking into the room, at
9 the top left-hand side of the door, there is a piece of wood. I think
10 you and I would refer to it as a 2 by 4, the rough dimensions of the
11 wood, that is used as a wedge to secure the door jam; is that not
13 A. Yeah, it looks something like that.
14 Q. And it looks like a temporary thing. It doesn't look like a
15 permanent fixture of the door, does it?
16 A. Again, I don't know the construction techniques for basements in
17 Visegrad --
18 Q. Let's go with what you know. Have you ever seen a permanent
19 finished door have a piece of wood hammered in or jammed in to the side
20 to hold it up?
21 MR. IVETIC: Objection, calls for speculation, relevance, unless
22 he leads a foundation that this witness has seen doors in Visegrad and
24 MR. GROOME: I'm just asking --
25 JUDGE ROBINSON: Please answer the question.
1 THE WITNESS: I have seen doors with shims in them; when they're
2 finished, they're covered --
3 MR. GROOME:
4 Q. This isn't a door shim, is it?
5 JUDGE ROBINSON: Mr. Ivetic, the transcript has recorded you as
6 saying specks league of nations.
7 MR. IVETIC: I believe that was speculation, Your Honour.
8 JUDGE ROBINSON: Yes, go ahead.
9 MR. GROOME:
10 Q. This is not a door shim, is it?
11 A. Sir, with all due respect, I would call this a door shim.
12 Q. Okay. I'm going to ask that we have the photo of this. I'm
13 going to ask that it be placed on the ELMO in front of you, Y020-3639,
14 and there's also a copy for the Bench. I'd ask -- it's all there in the
15 order that I had used them. I ask that it be passed up to the Bench.
16 MR. IVETIC: Can we get a copy, counsel?
17 MR. GROOME: They're your pictures, Mr. Ivetic.
18 Q. Okay, sir, I put a little yellow tag to show you the portion of
19 this 2 by 4 or this wedge that I want to address with you. To the
20 lay-eye, it looks charred. It looks like there's white ash on it. It
21 looks burnt. Do you disagree with that?
22 MR. ALARID: Your Honour, I object from the standpoint of
23 inconsistent theories. Mr. Groome's, on one hand, postulating that this
24 door was ex post facto and part of a tampering process wherein the door
25 was replaced or otherwise reconstructed, and then on the secondhand
1 arguing the same thing that that same exact door frame that could have
2 been installed after the fact is now charred and covered be ash. I think
3 the Prosecution has to pick a theory of modality of this crime.
4 MR. GROOME: We're not talking about the theory of the crime.
5 We're talking about the door, and I believe it's all fair --
6 JUDGE ROBINSON: Yes, please answer the question.
7 MR. GROOME:
8 Q. Sir, this is burnt, is it not?
9 A. It is not burnt.
10 Q. So that white ash underneath is not burnt?
11 A. It's not white ash.
12 Q. What is it?
13 A. It's decay. It could be numerous things, but it's not ash.
14 Q. Now, Mr. O'Donnell when he saw that picture said it was ash. Did
15 he have the same opportunity to see this as you?
16 A. I believe so. I believe -- I mean, he's not the ash expert.
17 MR. ALARID: And I would ask for a reference in the transcript to
18 such an admission by Mr. O'Donnell, or was this something that was put to
19 him by close-ended cross-examination by appearance?
20 MR. GROOME:
21 Q. Sir, can I ask you to circle the white portion underneath that
22 you say is not burnt wood. Actually, could I ask you to mark it on the
23 ELMO, the hard copy. You'll be provided with a pen.
24 MR. ALARID: Do we have a transcript reference for
25 Mr. O'Donnell's reference?
1 MR. GROOME: I'm sorry. I'll have to get it for you, the
3 THE WITNESS: Just for clarification, what do you want me to
5 MR. GROOME:
6 Q. The narrow part of the 2 by 4 that's facing downward that it
7 looks white and gray that you say is not burnt; can I ask you to circle
9 MR. IVETIC: Your Honours, I believe he said that the whole thing
10 was not burnt. So that's misleading.
11 THE WITNESS: It is misleading.
12 MR. GROOME:
13 Q. Circle the other white and gray part on the this 2 by 4, please.
14 A. You want me to circle the part of the 2 by 4 that I think is not
15 touched by flame?
16 Q. I asked you to circle the white and grey portion of the 2 by 4
17 which you say in your evidence now is not burnt. That's what I'm asking
18 you to do.
19 A. None of it's burnt, for the record, but I will circle the grey
20 portion that you want me to.
21 Q. And you're certain that that is not burnt?
22 A. Yes.
23 Q. Okay. Now, if we could look at from the outside, that's 3543, so
24 maybe we -- could that hard copy be put up on the ELMO. And sir, is it
25 your evidence that none of this -- this is the other side of the wedge,
1 is it not correct?
2 A. I believe so, yes. That's the way it appears.
3 Q. And this is not burnt.
4 A. It is not burnt.
5 Q. Okay. Now, if it were burnt, if it had charring and
6 discolouration from burning, it seems that both ends of the wood have
7 been sawed off, correct, leaving a clean, pristine wooden surface;
9 A. It was sawed out at some point, yes.
10 Q. Well, I guess my question to you is, if it's really mold, why
11 would mold only form on the side of it and not on the two ends?
12 MR. ALARID: Objection, calls for speculation, lack of
14 JUDGE ROBINSON: Answer the question.
15 THE WITNESS: Restate your question.
16 MR. GROOME:
17 Q. You say all the discolouration is mold; correct?
18 A. Yes.
19 Q. Mold knows no difference between the side and the cut edge, does
21 A. No.
22 Q. So if it were mold, we would expect -- if this is the original
23 wedge, sitting here for 17 years gathering mold, wouldn't we expect to
24 see blackening or discolouration on the two sawed ends of this piece of
1 MR. ALARID: Objection, calls for speculation. I think we can
2 see some areas --
3 MR. GROOME: Your Honour, I'm asking for a --
4 JUDGE ROBINSON: Just answer the question, and Mr. Alarid, please
5 restrain yourself. The objections do not have any weight if they're of
6 that kind.
7 THE WITNESS: I'm not a mold expert, okay, and just like they're
8 not -- there doesn't appear to be mold on this side, there's mold all
9 through here and all --
10 JUDGE ROBINSON: Let's move on. He's not a mold expert. Let's
11 move on, Mr. Groome.
12 MR. GROOME:
13 Q. Will, sir, if it were -- I put to you, sir, that this is a burnt
14 piece of wood from a fire that someone after that fire took it, cut it,
15 and jammed it into in door jam; am I wrong?
16 A. Yes, you are. This is not a burnt piece of wood.
17 Q. Okay.
18 MR. GROOME: I would tender those exhibits, Your Honour, the hard
19 copies as well as the other copies.
20 JUDGE ROBINSON: Yes.
21 THE REGISTRAR: Exhibit P280, Your Honours.
22 MR. GROOME:
23 Q. Now, Mr. McCoy, I have a better picture of the -- where the lock
24 set would be, and I'd ask that you -- we call up Y020-355 -- 3552.
25 That's Y020-3552.
1 Now, sir, we're looking at the portion of the door jam that you
2 wanted to refer to; correct?
3 A. Yes, but I would -- I wanted a different angle, but ...
4 Q. Well, show us where the indentation -- where the place is for the
5 lock to lock into.
6 A. This angle, I cannot see one.
7 Q. But isn't that the surface of the door jam where we would expect
8 to find that mortice where the bolt would go into?
9 A. Somewhere in this area. Is there another angle of this?
10 Q. Well, sir, I'm going to give you all the photos that you took
11 that we can find of the door.
12 MR. GROOME: Can we call up 3553.
13 Q. Perhaps this is this photo that you're speaking about. Now,
14 here's a close-up of it. Mr. McCoy, there's no place to put a bolt in
15 this door jam, is there?
16 A. The part that's visible, no. Is there a picture on the back-side
17 of this?
18 Q. I'll look for that, as well, but could I ask you --
19 A. [Overlapping speakers] ... area?
20 Q. The portion that you've circled, that's the portion that we would
21 expect to find the lock set go into; is that not correct?
22 A. Somewhere in here, yes.
23 Q. Okay. And it's not there, is it?
24 A. Again --
25 Q. Okay, we'll let the picture speak for it.
1 MR. GROOME: I would tender 3553.
2 JUDGE ROBINSON: Yes.
3 THE REGISTRAR: 3553 is now an Exhibit P282, and 35 -- the hard
4 copy of the previous exhibit is Exhibit P281, Your Honours.
5 MR. GROOME: Now, can we look at Y020-3540. I would ask that the
6 markings be saved as well.
7 Q. Mr. McCoy, do you still maintain that there's no possibility that
8 this door was changed?
9 A. You're asking me if there's no possibility?
10 Q. You've drawn the conclusion that it's the original door, and
11 based on that conclusion you've made rather important conclusions about
12 how this fire happened. Are you sure that this is the same door?
13 A. The conclusion I came to is this is the same door.
14 Q. Do you want to reconsider it now?
15 A. No.
16 Q. Okay. Now, let's look at Y020-3543. We've seen this before.
17 I'm going to ask that you -- the usher place, again, a printed A3 copy
18 for you and that the Chamber receive a printed copy as well. Now, this
19 picture was taken on the wall outside under the portico of the room that
20 you examined; correct?
21 A. Correct.
22 Q. And it was to the right of the door?
23 A. Correct.
24 Q. You don't dispute that this shows a serious fire, do you?
25 A. A small fire could have caused that.
1 Q. A small fire.
2 A. Yes.
3 Q. What would you have to see to make you think that it was a big
4 fire? How would it look different? How would a big fire look different?
5 A. Bigger members, wood members being deeper charred. This is
6 lightweight material, and lightweight material, just like paper, burns
7 easily and fairly rapidly.
8 Q. You've already explained what alligatoring is, and we can see
9 alligatoring on this; correct?
10 A. Yes.
11 Q. Are you able to tell by the pattern of alligatoring the intensity
12 of the fire?
13 A. Yes. Yes, you can.
14 Q. And what's your opinion with respect to your observations of the
15 alligatoring in this photo?
16 A. Areas such as this and this would be deeper, deeper, more defined
17 definition for a more intense, longer-burning fire.
18 Q. So the deeper the indentation in the alligatoring, the more
19 intense the fire was that caused it?
20 A. Yes.
21 Q. Okay. Thank you. So now based on how deep that is, your
22 assessment is that it's a small fire, it wasn't so deep; is that your
24 A. Yes, that is my assessment.
25 MR. GROOME: I'd tender that, and I'd ask that it be left up on
1 the screen for a minute.
2 Q. If you were to put your finger -- I'm sorry.
3 JUDGE ROBINSON: Please tender it. We'll admit it.
4 THE REGISTRAR: That's Exhibit P283, Your Honours.
5 MR. GROOME:
6 Q. If you were to push your finger into that alligatoring, what
7 would happen?
8 A. My finger would turn black, and it would -- it would indent it a
9 little bit.
10 Q. I guess what I'm trying to get at is it fragile? Is it very
11 hard? If you pushed against it, would it give way?
12 A. It depends on how thick the member is. We use -- in the
13 industry, I have never used it, but we have a depth char-metre, and it's
14 a fine instrument that goes in, and it's not a blunt instrument. It's --
15 Q. And that's to measure the depth of the alligatoring?
16 A. Correct.
17 Q. Why did you not use it when you examined this scene?
18 A. Again, I've never used it. I'll just saying in our industry.
19 That's not something I do.
20 Q. Okay. Would it be fair to say that it's softer than the original
22 A. It's been compromised. I'd say yes.
23 Q. If we were to take this piece and put it in the middle of the
24 floor there and leave it there for 17 years where it would be walked on,
25 it would be rained on, perhaps there would be animals living in it for a
1 year or, so would we still see this kind of alligatoring on it?
2 A. How many animals are we talking about?
3 Q. Let's say enough to fill this room.
4 A. No. This piece of wood would probably be compromised.
5 Q. It would be black, but it would not have the alligatoring on it;
6 is that not correct?
7 A. How long did the animals live there?
8 Q. Let's say 17 years. It's been walked on on a regular basis,
9 rained on, snowed on. There's not going to be alligatoring like we see
10 here, is it?
11 A. No, it would be compromised.
12 Q. It would still be black, though; right?
13 A. Yes.
14 MR. GROOME: I'd tender that if I hadn't already. Sorry, I'm
15 losing a bit of track here. I have tendered it? Thank you.
16 Q. Could I ask that you now be shown Y020-3538. This is the same
17 area, but it's taking a step back. It's zooming out a little bit. I
18 want to ask you a few questions about that. It's on the screen. Do you
19 confirm that this is a picture of the same area; it's just taken a few
20 steps back, and we can see more of the wall?
21 A. Yes.
22 Q. Okay. Now, from this picture we get the sense that at one time
23 this wall was covered with a material; do we not?
24 A. Yes.
25 Q. What leads you to the conclusion that this wall was covered with
1 some finished material?
2 A. It looks -- it appears to me that it's lightweight material, and
3 it might have been some type of covering. It also might have been the
4 structure where they poured the actual wall into, a form, if you will.
5 Q. A form? But this wouldn't be strong enough to hold wet concrete,
6 would it, material?
7 MR. ALARID: Calls for speculation.
8 THE WITNESS: I'm not a concrete expert, sir.
9 MR. GROOME:
10 Q. So if you're not a concrete expert, you're not really able to say
11 it might be the form that they poured concrete into, are you?
12 A. It is a possibility.
13 Q. So how are you able to say that it's a possibility but you're not
14 able to say whether it's strong enough to hold the wet concrete? How is
15 that possible?
16 A. I've done it before, but I'm not an expert.
17 Q. Now, fire ordinarily burns up and it burns out; correct?
18 A. Ordinarily, yes.
19 Q. Now, is it reasonable to infer from looking at this picture that
20 the material below this was on fire and the fire travelled up to this
21 area; correct?
22 A. With the evidence shown that I believe to be true and original,
23 there was no fire below this area.
24 Q. So how -- any ideas about what would have happened to the rest of
25 the wall?
1 A. There's a phenomenon and I told -- it's not really an actual
2 term. It's an actual -- it causes fire. It's drop-down. When the
3 material that you spoke of earlier burnt in whatever year, it possibly
4 dropped down and started this fire. There's rubbish. There's
5 vegetation. I cannot explain how that burnt.
6 Q. But what I'm just asking for the bare wall immediately under it.
7 Can we not conclude that there was a fire on that portion of the
9 A. Yes. Yes.
10 Q. Okay. So it's missing now; correct?
11 A. Yes.
12 Q. Was it -- it wasn't on the ground underneath this, was it?
13 A. I do not recall, sir.
14 Q. Well, I'd ask you to look at your other pictures. I could not
15 find any material on the ground, but it seems to me if we know there was
16 a finished wall material here, we know that the top portion was burnt, we
17 cannot find the charred remains of the lower portion, to me that seems
18 like pretty clear evidence that someone has cleared it up; correct?
19 A. Along with time and years and -- I don't know when this fire
20 happened, sir. I don't know how long ago it happened, and with time
21 everything degrades.
22 Q. So are you saying that you believe that the lower portion of this
23 wall degraded into the soil underneath?
24 A. I don't know where -- I don't know where it's at.
25 Q. Did you entertain the possibility that perhaps someone cleaned
1 off the finished wall material here and forgot to get this portion up in
2 the corner of the ceiling?
3 A. I did not entertain that.
4 Q. Okay. Thank you. This did not indicate to you that someone may
5 have gone back into the scene and tampered with it?
6 A. No.
7 Q. Now, here we see a narrow piece of wood that is commonly referred
8 to as a furring strip in the US
9 Do you know the piece that I'm talking about?
10 A. I believe, so but at the same time I don't believe it is what
11 you're saying it is.
12 Q. Okay. Could I ask you to circle what you believe I'm saying is a
13 furring strip.
14 A. [Marks]
15 Q. Okay. Now, that is the piece I'm referring to. You were there.
16 You had a better look than I. What is it?
17 A. It's a portion of the wood as a hole that was not -- it's one
18 piece. It's not two -- you're thinking it's two separate pieces. It's
19 one piece, and this portion was not destroyed by fire.
20 Q. So you're saying that that thin strip is the same material that
21 we see charred?
22 A. I believe so.
23 Q. It's not a piece underneath it on which the top pieces are fixed?
24 A. No. To my -- to the best of my knowledge no.
25 Q. Okay. Thank you. Now, explain how that's possible. What's the
1 phenomenon - you're the expert - that we could have two flammable
2 surfaces budding each other and one could be so significantly burnt and
3 one another portion of the very same material is not burnt?
4 A. There is some slight discolouration right - I just covered it
5 up - right there, and for whatever reason, the material that was on top,
6 one piece, it's -- in my opinion, this is plywood, plyboard, and it's
7 pressed in layers and glued; and the piece right above it is missing,
8 it's gone, for whatever reason, and this is what was behind it.
9 Q. So this is a piece of wood behind the plywood on the top.
10 A. No, it's all one. This is not a furring strip that you're
11 referring to. It's all one. You know how plywood is made. They cross
12 grains, and for whatever reason the material that was covering that,
13 protecting that is not there.
14 Q. Okay. Now you said you don't know what reason. This is the very
15 purpose of having an expert here. What is the scientific reason that a
16 piece of plywood, a piece of integrated wood, that one portion of it
17 could burn so significantly, and the other portion seemed not to burn
19 A. Again, in my expert opinion, I believe there was a piece covering
20 that that did burn completely -- it was uniform. However, the way
21 pressed board is made, it's not there anymore. It's cross -- it's
22 cross-grain. Therefore, the piece on top of that is missing. It's not
23 there. For whatever reason, I don't know .
24 Q. So why isn't this piece burnt? That's what I'm driving at.
25 A. It was behind it. It's all the same, I wish I could draw you a
1 diagram of how pressboard is made.
2 Q. Let me ask you this, then. If it's possible that a piece of wood
3 is affixed to -- or is on top of another piece of wood, whether it be the
4 same plywood or something else, it can protect it from fire damage?
5 A. Depending on the depth or the thickness.
6 Q. But it can do that?
7 A. Yes.
8 Q. So it's possible in a fire like this that we could peel of the
9 charred lay and are we might find wood underneath that does not look like
10 it's been burnt?
11 A. Again, that does look slightly discoloured. It's --
12 Q. But you don't dispute that there's a remarkable difference
13 between the heavily charred piece and this one that still looks like a
14 piece of wood?
15 A. It's discoloured. It is discoloured. It's not pristine.
16 Q. So it's your testimony now that this is fire damage, this piece
17 of wood that you've circled?
18 A. Yeah. The dot in the middle is behind it. I covered it up, but
19 it's discoloured.
20 Q. I'm talking about the part that's not discoloured. The part that
21 still looks like ordinary wood.
22 A. Again, I don't know the shade of wood when it was brand new from
23 the factory. I don't know how discoloured it is.
24 Q. Thank you.
25 MR. GROOME: I'll tender that, please.
1 JUDGE ROBINSON: Yes.
2 THE REGISTRAR: Exhibit P284, Your Honours.
3 MR. GROOME: Now, could I ask that we call up Y020-3613.
4 Q. And again, I have a large piece -- or a large A3 print of this
5 that hopefully will assist you and the Chamber in understanding your
7 What we're look at is a piece of board, I believe you said it was
8 embedded in the concrete, and it had no fire damage; correct?
9 A. Yes.
10 Q. And it's under the window -- under the window closest to the
11 door; correct?
12 A. Yes.
13 Q. And are you saying that this is not a piece of material that was
14 used to affix a finished wall surface on the inside of this room?
15 MR. ALARID: Objection, calls for speculation, facts not in
17 JUDGE ROBINSON: I agree, Mr. Groome.
18 MR. GROOME:
19 Q. Well, sir, you've drawn significant conclusions from this piece
20 of wood saying it's not burnt.
21 A. It's not.
22 Q. Okay. Do you have an opinion as to whether anything was affixed?
23 I believe you're looking at the wrong one. It should be 3613. What's if
24 number at the top of the one on the ELMO that you're looking at?
25 A. 3613.
1 Q. Okay. I apologise. Let me switch to the ELMO. So is it your
2 opinion that there was something -- do you have an opinion as to whether
3 anything was affixed to this piece of wood?
4 A. I don't.
5 Q. Okay. Now, I've put three yellow tags there with what looks like
6 small nails sticking out of that piece of wood where something may have
7 been attached to it. Do you remember those nails?
8 A. Specifically I don't, but it looks like there's one. I don't
9 know about the one on the left or the right, but the one in the -- it
10 appears -- it appears to me that there is one nail in the middle.
11 Q. Okay.
12 MR. GROOME: Well, I would tender that, the hard copy and the
13 electronic copy.
14 Q. And you actually took a much closer picture. We'll show that
16 THE REGISTRAR: Exhibit P285, Your Honours.
17 MR. GROOME:
18 Q. In paragraph -- or photograph 11 and 12 of your report, you say:
19 "Window closest to the door with wood beam. Wood beam shows no
20 fire damage."
21 And in photo 2, you say:
22 "Close-up of wood beam beneath window. No signs of smoke or fire
24 Is this your evidence that this is a beam of wood?
25 A. It's a large diameter -- large as in thick, embedded in the
2 Q. How are you able to determine that it was large if it's embedded
3 in the concrete?
4 A. The thickness, the length -- I mean, it looks a good three feet,
5 you know, and then it's an inch and a half, two inches thick. That to me
6 is a significant piece of lumber.
7 Q. Okay.
8 A. And the depth, I don't know. It could go --
9 Q. It's not a furring strip?
10 A. In my opinion, no.
11 Q. Okay. Now, you see -- this is a close-up picture. Do you see
12 the nail where the yellow tag is?
13 A. Yes.
14 Q. Is that a nail sticking out indicating that something was affixed
15 to this?
16 A. It's a nail sticking out.
17 Q. It's rather low down, so it doesn't seem that it was there to
18 hang a picture, does it?
19 A. I would guess not.
20 Q. Would you agree with me that probability would indicate that
21 someone put a nail into this wood because they were attaching something
22 to this wood?
23 A. Yes.
24 Q. And --
25 A. Attaching what, I don't know.
1 Q. Well, to me it seems also that probability would indicate that
2 they were attaching a finished wall surface. Do you disagree with that?
3 MR. IVETIC: Objection, Your Honour. This is the third time that
4 he's asked a question Your Honour has previously told him to move along
5 with, and I believe Mr. Groome is now testifying as to what is possible
6 to him, which is improper.
7 JUDGE ROBINSON: He's asking the witness whether that's a
8 possibility. What do you say, Witness? Are you able to comment on that?
9 THE WITNESS: I'm not a furring strip expert. I'm not. That
10 piece of wood is not burnt.
11 JUDGE ROBINSON: Yes. Move on now, Mr. Groome.
12 MR. GROOME: Well, Your Honour, let me just ask one more question
13 about this.
14 Q. I mean, you got an A in building. Nails are used to attach --
15 A. Things.
16 Q. -- things --
17 A. Any things.
18 Q. -- to wood; correct?
19 A. Correct.
20 Q. And on this piece of wood, you call it a beam under the window,
21 there are several nails sticking out a small amount from the wood;
23 A. I see one.
24 Q. Well, look down. There's another one to the right?
25 A. I cannot make that out as a nail. I see one item that possibly
1 looks like a nail.
2 JUDGE ROBINSON: Mr. Groome, we're having difficulty.
3 JUDGE VAN DEN WYNGAERT: Excuse me, we don't even see the one
4 nail, so ...
5 MR. GROOME:
6 Q. Could I ask you to point to the nail that you see.
7 [Trial Chamber confers]
8 MR. GROOME:
9 Q. This is 3613; correct? I'm sorry, 3614.
10 [Trial Chamber and registrar confer]
11 MR. GROOME:
12 Q. Sir, can you point to it again so the judges can see? You
13 recognise that nail. Now, over to where the yellow tag is, would you
14 remove that yellow tag. Now, point to where -- the area where that was.
15 Just below that, so Their Honours can -- is that not a nail sticking out
16 partially from a piece of wood?
17 A. I cannot make out anything there. To me that looks like a nail.
18 Q. Is there something sticking out from the wood?
19 A. It could be part of this branch. I cannot, with this picture --
20 JUDGE ROBINSON: The witness has answered that question. Please
21 move on.
22 MR. GROOME: Yes, Your Honour. I'll move on. Tender it, please.
23 JUDGE ROBINSON: Yes.
24 THE REGISTRAR: Exhibit P286, Your Honours.
25 JUDGE ROBINSON: Mr. Groome, we are just a couple minutes away
1 now. How many more questions do you have?
2 MR. GROOME: Actually, not too many, Your Honour. I'm not sure
3 that I'll finish today. I will have I think 15, 20 minutes to go.
4 JUDGE ROBINSON: We can go on, can't we?
5 [Trial Chamber and legal officer confer]
6 JUDGE ROBINSON: I'm just inquiring whether we can go on until
8 [Trial Chamber and registrar confer]
9 JUDGE ROBINSON: Are we okay with the tapes? Who is to provide
10 that answer? Just go on. Just carry on, and let's finish.
11 [Trial Chamber and registrar confer]
12 JUDGE ROBINSON: Right.
13 Mr. Groome, just try and finish in about ten minutes so that if
14 there is -- are you going to have re-examination?
15 MR. IVETIC: Very briefly, Your Honour. I have probably about
16 four photographs and five, six questions.
17 JUDGE ROBINSON: Already. Well, let's take it as far as we can
19 MR. GROOME:
20 Q. I'm going to ask that you be shown Y020-3591. While that's being
21 called up, if I might make use of the time -- I'm sorry, Your Honour.
22 JUDGE ROBINSON: I'm going to stop you at 5 to 4.00 when we have
23 reached -- so I can do some stock-taking, Mr. Alarid, in relation to the
24 remaining witnesses because we may give you another day, but I want to
25 know before giving you the day that the time will be used profitably.
1 MR. GROOME:
2 Q. Sir, the piece of wood that we were just talking about that you
3 agree has at least one nail in it is the piece that we can see to the
4 right of this photo; correct?
5 A. Correct.
6 Q. Could I ask you to circle it, please, on the electronic screen.
7 A. [Marks]
8 Q. Sir, now, if I could draw your attention --
9 MR. GROOME: I'm sorry, I would tender that.
10 THE REGISTRAR: Exhibit P287, Your Honours.
11 MR. GROOME:
12 Q. Now, sir, on photograph 6 of your report, you say:
13 "Dark areas near left corner are consistent with a small exterior
15 So there was evidence of fire under the portico of the building;
16 is that correct?
17 A. Yes.
18 Q. So your evaluation of the outside, under the portico, there's the
19 fire damage up in the right-hand corner by the ceiling, and there's
20 another area on the left that has fire damage? You talk about dark
22 A. Okay. On photograph 6, my photograph 6 -- do you have it?
23 Q. The problem is, though, the copy we were provided, they were all
24 black. We couldn't really see what you were referring to.
25 A. Okay.
1 Q. Is it the same, or is it a different area?
2 A. It's the same area. This picture is facing west, and the area
3 I'm referring to is the same area we just went over.
4 Q. Okay. So --
5 A. So at this point, it's to the left.
6 Q. I understand now. So in your evaluation, you agree that there
7 are at least one fire outside and one and possibly two smaller fires
8 inside; correct?
9 A. I believe there was only one fire inside.
10 Q. Okay. So you --
11 A. And one fire outside.
12 Q. Okay. So the fire inside is one fire that may have had two
13 causes: Children playing or people keeping warm.
14 A. Possibility of either.
15 Q. What made you think that it was children playing or people
16 keeping warm?
17 A. There was a large amount of human feces, people possibly hanging
18 out, using this as a shelter, playing, any number of reasons. It's a
19 cold climate.
20 Q. But I guess the thing that strikes me as a little bit curious is,
21 doesn't it seem unusual that someone trying to keep warm would light a
22 fire on the floor that they're sitting on, a wooden floor?
23 A. There's portions that are dirt, correct, and I -- I would think
24 that most people would know better than to light a fire on a wood floor
25 just to keep warm, okay, and the area I saw that had small amounts of
1 small-diameter wood was away from the intact wood floor.
2 Q. Okay. So you're reaching the conclusion that someone lit a fire
3 there to keep warm based on your finding charred wood that was of a small
4 dimension; correct?
5 A. Yes, and not just any possibility but possible, probable child's
6 play, kids playing, or keeping warm.
7 Q. So the wood that you saw burnt, you believe is not the floor but
8 wood that someone brought in to light up and keep themselves warm?
9 A. That is correct.
10 Q. How did you make that determination?
11 A. It was in a small area away from the wood floor and in the
12 diameter. It wasn't wood planks that we saw earlier or that -- that we
13 saw earlier.
14 Q. Well, if we took a floor-board, let's say three-quarter inches
15 thick, 6 inches wide, and it was burnt very severely, and then it was
16 placed on the floor, and 17 years of people walking on it, animals
17 walking on it, would it not break up into smaller bits?
18 A. Yes, but the amount, it wasn't all over throughout the room. It
19 was just in a smaller area. It was a small, little fire.
20 Q. But you're drawing that conclusion based on finding some small
21 pieces of burnt wood. Isn't it --
22 A. In a small location. It wasn't throughout the whole room.
23 Q. Isn't it equally consistent that the floor-boards burnt very
24 thoroughly behind the door, the pieces were broken up over time, people
25 walking on it, and someone shovelled out as much as they could, and they
1 missed a few small fragments? Isn't that equally consistent with your
3 A. It's not consistent with my theory at all. I mentioned nothing
4 about people shovelling anything out.
5 Q. Well, how do you know that someone didn't?
6 A. I don't know, but the floor-boards that were there, they're still
7 there. The floor is -- the majority of the floor is intact. It's -- in
8 that one corner, it's there.
9 Q. We'll talk about the floor in a few minutes, perhaps tomorrow
10 morning. Mr. Ivetic has already asked you about that electrical box. I
11 want to ask you to take a look at Y020-3624. If I haven't tendered this,
12 I apologise and would ask to tender it before we move on.
13 JUDGE ROBINSON: Yes.
14 THE REGISTRAR: It will be admitted as Exhibit P288,
15 Your Honours.
16 MR. GROOME:
17 Q. Sir, what you see on the screen now is something embedded in the
18 wall of the room. Why did you take a picture of these two items embedded
19 in the wall?
20 A. I photograph fire scenes thoroughly. If I don't know what it is,
21 I can't explain it, I still photograph it. If I --
22 Q. Okay. That's sufficient. When I looked at it, I thought it
23 looked like burnt wood; am I incorrect?
24 A. It looks -- it looks dark in colour.
25 Q. Does it look like burnt wood?
1 A. Some -- yeah, it could possibly look like that.
2 Q. Where in the room are these two pieces of burnt wood embedded in
3 the wall?
4 MR. IVETIC: Objection, Your Honours. Again, misstates the
5 evidence. He has not said that it is burnt wood. That's Mr. Groome
7 MR. GROOME:
8 Q. I stand corrected. Where are these two pieces that look like
9 burnt wood in the room?
10 A. Sir, I do not know.
11 Q. Is it inside or is ti outside?
12 A. Outside the room.
13 Q. Is it inside the room or in the portico?
14 A. Sir, at this time I do not know.
15 Q. Could I ask you between now and tomorrow morning to please look
16 through all your photographs and be able to answer that question for me
18 A. Yes, sir.
19 Q. Thank you. So let me move on, then. Now I want to talk about
20 the floor. Before I do that, what is the term accelerant mean in the
21 nomenclature of arson investigation?
22 A. An accelerant is an item that is used to accelerate the fire,
23 such as gasoline, some type of ignitable liquid, anything utilised to
24 accelerate or quicken the fire, start up the fire faster, to get it going
25 quicker and faster.
1 Q. Okay. You as an investigator, fire investigator, how do you make
2 the determination what signs you look for for whether an accelerant was
4 A. There's various ways, and they're all used together. One is
5 obvious, smell, and we also used, which wasn't used on this fire,
6 obviously, a canine, whose smell is much greater -- like, a thousand
7 times greater than ours, and they're trained as accelerant dogs, and
8 they'll clue in --
9 Q. Okay, but you didn't have one of those. What are the other ways?
10 A. Again, like I said, smell, visual signs --
11 Q. That's the part I'm interested in now. What are the visual
12 indications that an accelerant has been used in a fire?
13 A. An accelerant relating to a liquid, an ignitable liquid would
14 leave circular-type patterns or -- circular-type patterns because liquid
15 flows out, and it's not going to be a sharp, jagged. It's going to be a
16 gradual arc, or circle, possibly even a donut. There's also a donut
17 shaped liquid, little or no burning in the centre but burning around it.
18 Q. Is it fair to say that when an accelerant is used on a floor,
19 we'll see burning wherever the liquid was; it'll be more significant
20 burning than the rest of the floor; correct?
21 A. Again, the donut shape with no burning in the centre, there's
22 still ignitable liquid there, but it burns --
23 Q. Why does the gasoline in the middle of the donut --
24 JUDGE ROBINSON: Just a minute. I'm gong to have to stop you now
25 and we'll resume tomorrow morning.
1 Now, let me take stock, Mr. Alarid. How many more witnesses do
2 you have?
3 MR. ALARID: Your Honour, we have Dr. Linda LaGrange scheduled
4 for tomorrow. We have Officer Benjamin Dimas who is set for -- let's say
6 JUDGE ROBINSON: You say Monday?
7 MR. ALARID: Well, this is going long.
8 JUDGE ROBINSON: I see. Yes.
9 MR. ALARID: But he's arriving on Saturday, so we were
10 anticipating on starting him Monday. We had -- but, again, if it runs
11 long, we have retired Deputy Chief Cliff Jenkins, who is the police
12 officer investigator, and then we have Dr. Hough, who is the psychologist
13 that -- and then of course, we have seven subpoenas outstanding. We have
14 Vlade Rasic, and technically we have Milan Lukic himself.
15 JUDGE ROBINSON: Is he going to testify?
16 MR. ALARID: He wants to.
17 JUDGE ROBINSON: Yes, so you counted today what? Sounds like
18 four or five?
19 MR. ALARID: We have five --
20 JUDGE ROBINSON: Including those from the subpoenaed witnesses?
21 MR. ALARID: No. There's seven subpoenas outstanding, three
22 we're hoping to get quick confirmation of receipt and ability to travel,
23 and four would be the ones where we didn't really have any forwarding
24 information for service of process.
25 JUDGE ROBINSON: So it looks like you could get three?
1 MR. ALARID: Yes.
2 JUDGE ROBINSON: Tomorrow morning I'll tell you what arrangements
3 will be made. Private session, please.
4 MR. ALARID: Thank you.
5 JUDGE ROBINSON: Private session.
6 [Private session]
20 [Open session]
21 THE REGISTRAR: We're in open session.
22 JUDGE ROBINSON: Mr. Groome, did you put in your application for
23 the other matter?
24 MR. GROOME: [Microphone not activated] ... few applications the
25 Chamber has asked about. You asked us about the experts. I think we
1 filed that. That was due Tuesday. That's been filed. There's rebuttal
2 witnesses ... [Overlapping speakers].
3 JUDGE ROBINSON: Yes, that's how many? That's due tomorrow.
4 MR. GROOME: The 20th, as I recall, and that's well underway.
5 And then just so the Chamber is also aware of, we're in the process of
6 finalising an application to open up other portions of the testimony that
7 we believe do not require -- in many cases, it was errors on our part
8 where we just forgot to ask the Chamber to come out of private session,
9 but the Chamber should have that before Friday or Monday.
10 JUDGE ROBINSON: Yes. We'll adjourn until tomorrow morning at
11 8.50 a.m.
12 --- Whereupon the hearing adjourned at 3.58 p.m.
13 to be reconvened on Friday, the 20th day of March,
14 2009, at 8.50 a.m.