Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5797

 1                           Friday, 20 March 2009

 2                           [Open session]

 3                           [The accused entered court]

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

 5             JUDGE ROBINSON:  Mr. Alarid, the Trial Chamber has spent a lot of

 6     time trying to devise measures to ensure that you're able to produce the

 7     witnesses that you have.  Even though come Tuesday of next week you'd

 8     have had the same time as the Prosecution, we have decided that we will

 9     continue hearing evidence up to the 9th of April.  We will be taking a

10     break, the Easter break, and we will return, I believe, on the 21st,

11     Tuesday the 21st.  So on Tuesday the 21st, we'll have the closing

12     arguments.

13             Now, I want to stress, Mr. Alarid and Mr. Ivetic, that when we do

14     this, we expect the time that be used.  We don't want to come and then we

15     have a day's hearing and a witness's evidence is concluded within one

16     session, and the rest of the day is lost.  On Monday, we will be giving

17     directions as to other time periods relating to closing briefs and so on,

18     and I'm going to require you to give me a list day by day of how the time

19     will be used by the Defence.

20             MR. ALARID:  On Monday, Your Honour?

21             JUDGE ROBINSON:  I'll let you know on Monday.

22             MR. ALARID:  Okay.

23             JUDGE ROBINSON:  I'll let you know on Monday, perhaps by Tuesday.

24     Perhaps by Tuesday, yes.

25             MR. ALARID:  Okay.  One of the things I think might come up,

Page 5798

 1     Your Honour, and one of the witnesses we would like to include in that

 2     schedule; and I know it's been denied at one point, but considering

 3     Ewa Tabeau filed a clarification in the Prosecution's most recent filing,

 4     there was some additional research that was done with regards to that;

 5     and we'd still like to follow up with her on the demographic side of

 6     proof of death.  So just to keep that out there, I just want to make the

 7     Court aware, and we'll probably put the request in writing, of course,

 8     but I just want to --

 9             JUDGE ROBINSON:  Don't put it in writing.  I will take this as an

10     oral motion for reconsideration, and we'll give it the consideration that

11     it requires.

12             MR. ALARID:  Thank you, Judge.  Thank you, Your Honour.

13             JUDGE ROBINSON:  Mr. Groome.

14             MR. GROOME:  Your Honour, just a few points.  Related to the --

15     what we're discussing now, in light of earlier orders by the

16     Trial Chamber, we actually had made arrangements for witnesses to begin

17     arriving here, I think next Wednesday is when the first witnesses were

18     going to arrive, so we would appreciate guidance as soon as possible as

19     to when we would start our rebuttal case so we don't delay any

20     proceedings there.

21             And, Your Honour, with respect to the rebuttal case, we were

22     filing the motion today, but one of the witnesses we intend to call is a

23     Dr. Chris [phoen], he is a burn expert here in the Netherlands who looked

24     over Dr. Andersen's report and has some significant issues with it, and

25     he also looked at the same material and is going to come and show the

Page 5799

 1     flaws in Dr. Andersen's report.  He's only available --

 2             JUDGE ROBINSON:  Should he be admitted?

 3             MR. GROOME:  Sorry?

 4             JUDGE ROBINSON:  Should he be admitted as a rebuttal witness?

 5             MR. GROOME:  He's going to rebut with Dr. Andersen [Overlapping

 6     speakers].

 7             JUDGE ROBINSON:  No, I'm saying if we --

 8             MR. GROOME:  Sorry, Your Honour?

 9             JUDGE ROBINSON:  No, that is on the basis that we admit him as a

10     rebuttal witness ... [Overlapping speakers].

11             MR. GROOME:  I'm not anticipating Your Honour's rulings, but you

12     have given us definite time, and all of these things take two, three

13     weeks to organise the logistics.  But he's only available on the 27th of

14     March before he goes on a very extended training trip in the US and other

15     places.  So I would be asking the Chamber to consider, if it does allow

16     us to call him, the Chamber is empowered by the rules to adjust the order

17     of trial to, at least if the Defence have not finished calling their last

18     witness, that this doctor be permit to be called.

19             Your Honour, just two other brief matters.  It occurred to me

20     last evening in discussion with some staff that I think it really is

21     inappropriate.  We talked about Mr. Tabakovic and some of the other

22     witnesses who have since they were initially Defence witnesses have made

23     some really serious allegations against the Defence team and Mr. -- I

24     notified the Chamber that it would be my intention to call them.

25     Mr. Alarid said, Well, we would still like to call them.  And I have no

Page 5800

 1     problem with who calls them, but to me it seems very inappropriate at

 2     this time given these allegations that these witnesses are then asked to

 3     sit down with the people they've made allegations against for proofing.

 4     I have no intention of proofing these people.  I'm intending to introduce

 5     some video statements under 92 ter.  I will let what their video

 6     statements speak for themselves.  I would ask the Court to give some

 7     serious consideration to what -- possibly instructing VWS just to have

 8     them brought to the court.  If Mr. Alarid wants to call them, that's

 9     fine, but I really think it would be inappropriate to require those

10     witnesses to meet in a proofing session with the Defence at this stage.

11             JUDGE ROBINSON:  Yes.  We'll consider that.

12             MR. GROOME:  And then one final matter, Your Honour.  Yesterday,

13     Mr. Alarid notified the Court and us that he intends -- that Mr. Lukic is

14     going to testify.  Now, I would want to ask Mr. Lukic a number of

15     questions about Prosecution witnesses who have said -- given evidence in

16     this case.  And I don't want to -- it's an area that's ripe for

17     confusion.  There are a lot of pseudonyms, a lot of names, and I don't

18     want a situation where I might be asking Mr. Lukic about one witness and

19     he's thinking of another.  So what I would like to do in advance of his

20     testimony is to prepare an exhibit that just has a picture of each of the

21     witnesses so I can say, there's VG-13, you can see VG-13, this person has

22     said this, what do you say that that?  The problem is, Your Honour, I

23     cannot get those from the Registrar.  They're not authorised to release

24     them --

25             THE INTERPRETER:  Mr. Groome, a little slower please, thank you.

Page 5801

 1             MR. GROOME:  [Previous translation continues] ... I'm asking the

 2     Chamber to authorise the Registrar to provide pictures of his own

 3     witnesses that we can create these exhibits.  We would, of course,

 4     observe the protective measures and we would introduce it as a

 5     confidential exhibit when Mr. Lukic testifies.  Therefore, that way

 6     everyone in the courtroom can be very clear about who we are speaking

 7     about, and I --

 8             JUDGE ROBINSON:  I understand what you're saying, but I'll not

 9     give a ruling on that now.  Later today.

10             MR. GROOME:  Thank you, Your Honour.

11             JUDGE ROBINSON:  Let the witness be called.

12                           [The witness takes the stand]

13             JUDGE ROBINSON:  Yes, Mr. Groome.

14             MR. GROOME:  Thank you, Your Honour.

15                           WITNESS:  MARTIN McCOY [Resumed]

16                           Cross-examination by Mr. Groome: [Continued]

17        Q.   Good morning, Mr. McCoy.  Before I ask my questions today, I

18     wanted to give you an opportunity to amend any of your answers yesterday

19     on the main points I raised with you.  Perhaps upon reflection overnight,

20     you might have reconsidered your answers.  Is there anything you want to

21     change about your statement that if there was a fire in the basement,

22     there would be smoke plume damage on the -- above the windows on the

23     exterior of the house?

24        A.   Again, it's a large, intense fire --

25        Q.   Now, we don't have to go through the testimony again.  Is there

Page 5802

 1     anything you want to change or not?  That's all I'm asking you.

 2        A.   No.

 3        Q.   Okay.  Now, is there anything you want to change about your

 4     testimony about your conclusion that the door that is presently in the

 5     house that you saw on January 25th, 2009, is the same door that was there

 6     17 years ago?

 7        A.   It is my opinion, yes.  It is the same door.

 8        Q.   And is there anything you want to change about your conclusion

 9     that the damage that we can see on the wedge in the upper left-hand

10     corner of the door jam has no fire damage on it?

11        A.   That is correct, sir.

12        Q.   Okay.  Thank you.  Now, yesterday at transcript page 5690, you

13     said:

14             "We came to a conclusion -- many to conclusions," I think you

15     were saying many conclusions "... at the scene, but this document,"

16     referring to your report, "... was done in my office with peer review

17     from my colleague, Ben Dimas."

18             Do you remember saying that yesterday?

19        A.   Yes.

20        Q.   Do I take it that you and Ben Dimas discussed the conclusions and

21     you are in agreement with respect to the conclusions in your report?

22        A.   I believe so.  Yes.

23        Q.   So he agrees with the conclusions about the smoke plume, the

24     door, the wedge, the flooring?

25        A.   Yes.

Page 5803

 1        Q.   Okay.  Thank you.  Now, before I go back to talking about the

 2     flooring, I want to show you a couple of pictures that you took and ask

 3     you a couple of questions arising from them.

 4             MR. GROOME:  Could I ask that we call up Y020-3365, and I'm going

 5     to ask that two pictures be placed on the screen at the same time, but

 6     maybe if we start with this one.  It's not one of the large pictures.

 7        Q.   Now, what I'm interested in here, this picture that we're looking

 8     at this is a picture of the house that is directly across from the

 9     Omeragic house, across the gully; is that not correct?

10        A.   Yes.

11        Q.   I believe it was taken from the window of the basement; am I

12     correct in that?

13        A.   I cannot say whether it was on the insider to outside, but from

14     that general area, yes.

15        Q.   Okay.  Thank you.

16             MR. GROOME:  I would tender that into evidence.

17             JUDGE ROBINSON:  Yes.

18             THE REGISTRAR:  That's Exhibit P289, Your Honour.

19             MR. GROOME:  Now, if we could move this to the side of the

20     screen, and if we could call up Y020-3401.

21        Q.   Now, if we could focus on this picture, if we could maybe just

22     zoom in a little bit on that house between the two trees, that's the same

23     house, is it not?

24        A.   Yes, I believe so.

25        Q.   And if we look, we can actually even see the same laundry:  I

Page 5804

 1     don't think this person ever imagined their laundry would be shown at the

 2     Tribunal, but you can even see the same laundry hanging the clothesline;

 3     correct?

 4        A.   Yes.

 5        Q.   Can we zoom out from this picture now again on the right.  So if

 6     that's the same house, that means that the Omeragic house is either

 7     behind that tree or maybe perhaps behind the corner of that building; is

 8     that correct?

 9        A.   Can you zoom in again?

10        Q.   To the house?

11        A.   Zoom in --

12             JUDGE ROBINSON:  Mr. Ivetic.

13             MR. IVETIC:  Objection, relevance and beyond the scope of any

14     expertise this witness has offered, Your Honours.  I mean --

15             MR. GROOME:  He took the pictures.

16             JUDGE ROBINSON:  He's just asking about the photographs that he

17     took.  Proceed, please.

18             MR. GROOME:

19        Q.   I'm just trying to -- okay -- okay -- where would you like us to

20     zoom in, at the house or to the right of the -- you tell us where you'd

21     like to zoom in, and we'll do that.

22        A.   Right below that black satellite dish.

23             MR. GROOME:  Can we zoom in to that area?

24        Q.   Okay.  Now, with the Omeragic house --

25        A.   It would be to the right of that.

Page 5805

 1        Q.   To the right if that.  Just to the right?

 2        A.   Yes.  I'm not sure how far, but you can't see it.

 3        Q.   Now, would I be correct that if the Omeragic house was fully

 4     engulfed in flames, someone standing where you were when you took this

 5     picture would be able to see smoke from the house, no?

 6        A.   Again, you can't see the house.

 7        Q.   Would the smoke go up into the sky, do you think?

 8        A.   Yes, it would, but you couldn't see -- if you can't see the

 9     house, you can't say for certain if you could see the smoke plume or even

10     flames, for that matter.

11        Q.   I don't quite understand.  You're saying that someone standing

12     here, if the Omeragic house was fully engulfed in fire, the roof was on

13     fire, the basement, the ground floor, you're saying that a person here

14     would not have any idea that there was a fire going on there?  They would

15     not be able to see smoke?

16        A.   Can you zoom out again?

17             MR. ALARID:  And objection, Your Honour, calls for speculation

18     and beyond the scope of direct exam.

19             JUDGE ROBINSON:  The witness can answer the question.  If he can

20     answer it, then let him answer.

21             THE WITNESS:  If I cannot see the house, I cannot say for certain

22     if somebody in this position could see smoke or flames from the house.

23             MR. GROOME:

24        Q.   Sir, you're an experienced fireman.  You drive up to a

25     neighborhood.  Have you a call for a fire.  Do you need see the smoke

Page 5806

 1     rising from the top of the building long before you get to the house?

 2        A.   Yes, that's happened on occasion, depending on the intensity.

 3        Q.   So it's not unreasonable to think that someone could see the

 4     smoke from here; correct?

 5        A.   Again, in my expert opinion, I don't believe so.  It might be

 6     possible but not very probable.

 7        Q.   Okay.  It's a dark night when the fire starts.  If it was a large

 8     fire, completely engulfing the house, would somebody from here have any

 9     sensation that there's light up in the sky, light against -- light

10     illuminating the smoke?

11        A.   Again, in the middle of the night at this particular -- from this

12     particular balcony, I was not there at night.  I don't know how much

13     ambient light is in the air from --

14        Q.   I'm not talking about ambient light.  I'm talking about a house

15     that's fully on fire.  It gives off quite a bit of light, no?

16        A.   Yes, it does.

17        Q.   And a house that's fully engulfed in fire, it's making a sound as

18     well; is it nor?  Are beams not cracking?  Do we not hear the roar of the

19     fire?

20        A.   I'm sure there is noise associated with it.  Usually the fire

21     trucks are way noisier; on an average scene in my city the fire trucks

22     are extremely loud compared to the --

23        Q.   Is it unreasonable to think that someone from this balcony would

24     have heard --

25        A.   No.

Page 5807

 1        Q.   They would not have hear it?

 2        A.   No.

 3        Q.   That's your testimony?  Okay.  Thank you.  Can I tender both of

 4     the those photos, please?

 5             JUDGE ROBINSON:  Yes.  Mr. Groome, Mr. Ivetic spent two hours and

 6     30 minutes.  You have now gone about two hours and 37 minutes.  I'll give

 7     you another ten minutes.  You must conclude within that time.

 8             MR. GROOME:  Your Honour, there was an awful lot of technical

 9     problems yesterday trying to pull up these things.  I don't have much

10     more, but I will do my best to finish in ten minutes but we have a few

11     important questions.

12             JUDGE ROBINSON:  We have a very proficient time-keeper, and I

13     have no reason to doubt the accuracy of what she has -- the figures she

14     has given me.  Ten more minutes.  We have move on.

15             THE REGISTRAR:  Exhibit P290, Your Honours.

16             MR. GROOME:  Could we call up Y020-3448.

17        Q.   Sir, can I ask you to circle on this photograph the balcony that

18     you took the photo from.

19        A.   I believe it was either this balcony or this balcony.

20        Q.   Okay.

21        A.   I don't recall this picture.

22        Q.   Do you recognise the house?

23        A.   Yes, and again, I don't know if it was this balcony or this

24     balcony at this point.

25        Q.   Okay.  So it's either one of the balconies you've circled.  I

Page 5808

 1     will tender that into evidence.  I'm going to ask you another question,

 2     okay?

 3             JUDGE ROBINSON:  Yes.

 4             THE REGISTRAR:  Exhibit P291, Your Honours.

 5             MR. GROOME:  Could I call up P31.  Can you turn it sideways,

 6     please.

 7        Q.   Sir, see the circle on the bottom of the photograph?

 8        A.   Yes.

 9        Q.   That's the -- it has 5, 6, or something, 6 it looks like.  That's

10     the --

11        A.   Are you talking about this one?

12        Q.   That one there, yeah.  That's the house you took the picture

13     from; correct?

14        A.   I believe it was that one.

15        Q.   Okay.  Thank you.

16             MR. GROOME:  Tender that into evidence, please.

17             JUDGE ROBINSON:  Yes.

18             MR. GROOME:  And could we call up Y020-3649.

19             MR. ALARID:  And could the Prosecution provide the reference to

20     the exhibit number, as this is clearly a marked photograph.  Is this

21     VG-115's exhibit?

22             MR. GROOME:  P31 is the exhibit number.

23             MR. ALARID:  P31?  Thank you.

24             MR. GROOME:

25        Q.   Sir, there seems to be some problem with the technology.  I'm

Page 5809

 1     going to ask that you look at two photographs from a book of your

 2     photographs to confirm that they're yours.

 3             MR. GROOME:  Could I ask that the witness be shown page 3 on the

 4     book of photographs that was introduced last week.

 5        Q.   Can I draw your attention to the picture on the bottom.  It's

 6     Y020-3649.  Is this a picture of the Omeragic house on the left and the

 7     house next door to the right; is that correct?

 8        A.   Okay.  You want me to --

 9        Q.   3649.  It's the bottom photograph.

10        A.   3649 is the top photograph.

11        Q.   I'm sorry.  The bottom one.

12        A.   Okay.  The bottom one is 3387.

13        Q.   Okay.  And is that the Omeragic house on the left and the -- and

14     the house next door on the right?

15        A.   Yes, I believe -- yes, it's the adjacent house.

16             MR. GROOME:  I would tender that.

17             JUDGE ROBINSON:  Yes.

18             THE REGISTRAR:  Exhibit P292, Your Honours.

19             MR. GROOME:

20        Q.   And I'm going to ask you to look at page 4.  It's Y020-3404.

21     Now, in picture was taken in front of Pionirska Street look up away from

22     the town; correct.

23        A.   Away from the river.  There's -- the majority of the -- I mean,

24     in the north direction.

25        Q.   Well, this is the roadway just in front of where the Omeragic

Page 5810

 1     house is; correct?

 2        A.   There's two or three structures between --

 3        Q.   Between.

 4        A.   Yes.

 5        Q.   But this is this Pionirska Street?

 6        A.   Yes, this is Pionirska Street.

 7        Q.   And where you're taking this picture from is essentially the

 8     driveway to the house directly in front of the Omeragic house; correct

 9     there's a space between two houses there?

10        A.   Yes.  Yes.

11        Q.   Okay.  Thank you.

12             MR. GROOME:  I tender that.

13             JUDGE ROBINSON:  Yes.

14             THE REGISTRAR:  Exhibit P293, Your Honours.

15             MR. GROOME:

16        Q.   Now, sir, if we can go back to talking about the floor.  We

17     finished yesterday, and you had explained what an accelerant is, and my

18     question to you is, if someone walked into this courtroom - this a

19     carpet, let's say there's a wooden floor underneath it - and someone were

20     to pour five gallons of gasoline right in front of me, okay?  The

21     gasoline wouldn't soak all the way to the far side of the room, would it?

22        A.   Depending on the surface.  If it leaned that way, yes.

23        Q.   Let's say it was actually poured out right here on the floor.

24        A.   Okay.

25        Q.   So let's say it's 6, 7 litres of gasoline or a few gallons of

Page 5811

 1     gasoline, it wouldn't be enough to cover the entire floor?

 2        A.   Not of a room this size, no.

 3        Q.   But it would seep out in all the different directions; correct?

 4        A.   Depending on how thin the layer is, it could possibly cover a

 5     room half this size, yes.

 6        Q.   Okay.  But it wouldn't cover all the floor.  I'm trying to -- if

 7     an insufficient amount of gasoline is poured on this carpet not to cover

 8     the entire floor, some parts of this carpet will be soaked with gasoline,

 9     some will not; correct?

10        A.   That is correct.

11        Q.   And if someone were to ignite that and we would allow that fire

12     to take its natural course uninterrupted by a fire Brigade, certainly the

13     parts soaked in gasoline would burn, and that fire would spread to the

14     walls and to the ceiling of the room; correct?

15        A.   Yes.  In a normal fire, yes.

16        Q.   Now, you as a fire investigator are called to examine this scene.

17     If you strip out the floor, you will see a pattern of where the flammable

18     substance was and where it wasn't; correct?

19        A.   Yes.  Burn patterns, not necessarily where it was and was not.

20        Q.   Well, it would be a burn pattern, and that burn pattern would be

21     more intense where the flammable liquid actually was laying on the floor

22     and less intense or possibly non-existent on an area that was not -- did

23     not have the flammable liquid; correct?

24        A.   Correct, but adjacent to the flammable liquid is going to burn

25     more intense than five or ten feet away.

Page 5812

 1        Q.   Correct.  So we could have very significant burning here,

 2     moderate burning front of you, and possibly no burning at the far left

 3     wall of this courtroom; correct?

 4        A.   Possibly, yes.

 5        Q.   Let's look at a photograph.  Y020-3618.  This is one that we --

 6             MR. GROOME:  I'm going to ask that we put a large one in front of

 7     the witness, and there's a large one for the Bench to look at as well.

 8     That could be placed on the ELMO.  Could we turn it sideways.

 9        Q.   Sir, I put some sticky notes on it to indicate the portion that I

10     want to direct your attention to, and I don't want to mark the exhibit.

11     I'd like to you mark the exhibit.  So could we shift it over so that we

12     could see the number 1.  Could I ask you just to draw a circle just

13     around that immediate area and remove the tag that says number 1.

14        A.   And the reason for the circle?

15        Q.   I want to ask you your observations about that area.

16        A.   [Marks]

17        Q.   And put 1 inside there, and you can take the 1 away.  If you'd

18     just write with your own hand 1.  Now, is it your evidence that the area

19     in circle 1 is mold and not burnt floor-board?

20        A.   On the inside --

21             MR. ALARID:  And Your Honour, objection, misstates the evidence

22     as tendered.  The references to mold are not references to the

23     floor-board.  In the original testimony, it was dampness.

24             THE WITNESS:  The floor was wet.

25             JUDGE ROBINSON:  He's asking him his view --

Page 5813

 1             MR. ALARID:  It misstates the evidence.  It misstates his prior

 2     evidence.  He never stated with regard to those floor boards it was mold.

 3             JUDGE ROBINSON:  Mr. Groome, are you putting to the witness that

 4     he had previously said that this was mold?

 5             MR. GROOME:  My recollection was that he was saying -- and he did

 6     say rot as well.  I'm concerned whether it's [indiscernible].

 7             MR. ALARID:  Transcript reference, please.

 8             MR. GROOME:  I'll [Overlapping speakers] myself to fire.

 9             JUDGE ROBINSON:  Reformulate the question because if you're going

10     to refer to previous evidence, then the practice is that you must cite

11     the transcript.

12             MR. GROOME:

13        Q.   Sir, the area in the circle that you've marked number 1 -- is the

14     pen working?

15        A.   [Marks]

16        Q.   Okay.  Is there fire damage in that circle?

17        A.   No, there is not.

18        Q.   That wood is not damaged by fire.  What is it damaged by?

19        A.   It is damaged by -- well, for one, it is damp.

20        Q.   So it's the dampness that makes it this colour?

21        A.   Yes, that is correct.

22        Q.   Now, could we move to the area marked 2.  Could I ask to you do

23     the same exercise, draw a circle around it, put 2 in it, remove the tag.

24        A.   [Marks]

25        Q.   Could we shift it up on the ELMO a bit so we all can see it, and

Page 5814

 1     the same question to you, sir, here, is in this area, is that not fire

 2     damage?

 3        A.   That is not fire damage.

 4        Q.   Okay.  Can we look at 3.  Do the same, please.

 5        A.   [Marks]

 6        Q.   That piece there.  Is that your evidence that that's not fire

 7     damage?

 8        A.   That is not fire damage.

 9        Q.   And 4, it's a furring -- if we could just move over and see 4.

10     Is that against the wall, is that not a piece of furring strip affixed to

11     the wall showing some evidence of fire?

12        A.   Again, to me that doesn't look like it's affixed to the wall.

13     It's angled --

14        Q.   So that is not affixed to the wall.  It is lying inside.  Is

15     there any fire damage on that piece?

16        A.   No.

17        Q.   And -- and it's not affixed to the wall.  Now, let's look at A

18     for a second.

19        A.   Okay.

20        Q.   The floor from this point back, there is not as much -- we don't

21     have the black, the rotting, the dampness that you talk about; right?

22        A.   Correct.

23        Q.   Now, in your evidence yesterday, you said that the woods would

24     get this way because of moisture in the ambient air.  Do you recall that?

25     And that was at transcript -- 62 was the reference yesterday.  I think

Page 5815

 1     they've renumbered it since then.  But do you remember saying that was

 2     moisture in the ambient air that would cause the rot?

 3        A.   Again, I don't remember saying exactly that, and moisture in the

 4     air does add to potential rot.  This area that's black right here is

 5     under the window.  Stuff away from the window is going to be less damp,

 6     okay?  Just giving you --

 7        Q.   Okay.  So it's your evidence -- so is that how you would explain

 8     that some of the boards do not show these signs of this very dark

 9     appearance that you say is not fire and some do?  It's the location with

10     respect to the window.

11        A.   Again, it's not my -- there was -- the majority of in room was

12     damp.  Why?  I don't know.  There were two windows that had been opened

13     for 17 years.

14        Q.   What is your explanation as a fire investigator as to why some of

15     the boards seem relatively fine?  They're unmarked by this dark

16     appearance, to me what appears as charring, and some are.  What's your

17     explanation as to why adjacent boards could have such a different

18     appearance?

19        A.   There were photographs of small stalagtite-looking droppings from

20     the slab above.

21        Q.   So water was seeping in through the slab?

22        A.   Yes.  Yes.  Along with close proximity to this open window.

23        Q.   So is it your evidence that parts of the room are damper than

24     others, and that's why some -- there's a difference?

25        A.   Yes.

Page 5816

 1        Q.   Okay.  Now, could we look -- speaking of photographs, you said

 2     last night that you would look and bring us a photograph of the door jam,

 3     where the lock was inserted.  Were you able to find that?

 4        A.   I don't believe I said that.

 5        Q.   You said you wanted to look overnight, remember?

 6        A.   Yeah, I did.  I looked at some photos and --

 7        Q.   Did you find one that shows where the lock goes in?

 8        A.   No, I did not.

 9        Q.   Okay.  Thanks.  Maybe I'll still work with this photo.

10             MR. GROOME:  Where's the one with the tags on it?  I would tender

11     that exhibit, and there's one that has a close-up of a board here that

12     I'd like to use.

13             JUDGE ROBINSON:  Yes.

14             THE REGISTRAR:  Exhibit P294, Your Honours.

15             MR. GROOME:

16        Q.   Now, going back to the marks that an accelerant would leave, the

17     tell-tale sign that an accelerant was used, am I right in saying that it

18     would be the kind of shape that you would expect if someone poured water

19     or poured another liquid, it would kind of follow the pattern of the

20     liquid?

21        A.   Can you rephrase that?

22        Q.   Well, you talked about kind of a circular, not a -- I think -- I

23     don't know exactly how you described the pattern --

24        A.   Yeah, not corner, not solid straight lines, but more of a

25     circular-type pour pattern.

Page 5817

 1        Q.   And it would be -- it would correspond to the impression left by

 2     the -- where it was wet; correct?  If someone poured the gasoline and it

 3     went out to a pattern, naturally found a pattern, it's that same pattern

 4     that would be replicated in burn marks; correct?

 5        A.   Yes.

 6        Q.   Okay.  Let's take a look at this next exhibit, and could we turn

 7     it upside down, please, or turn it the other way.  Thank you.  Now, I

 8     just put those yellow tags there to show you the area I want you to focus

 9     on.  Could I ask you to remove them, so we can all see it very clearly.

10     Just take them all off.  That was just a temporary thing.

11             Now, sir, here we have on the same board a combination of what I

12     believe is charring and what appears to be wood that doesn't look like

13     it's that compromised.  Is that not consistent with the type of mark we

14     would see if an accelerant were used?

15        A.   You're talking about the dark mark or the light mark?

16        Q.   Well, it's all on the same board, so it looks like part of the

17     board has this kind of not angular shape where it's dark and some it's

18     not.  It's on the exact same board.  Is this not consistent with the kind

19     of thing you would see if an accelerant were used?

20        A.   It's similar but along with accelerant -- a liquid, so rain,

21     moisture, along with darkening because of wet wood.  It's liquid.

22        Q.   We can talk about other reasons afterwards.  It is similar,

23     but -- you're saying it is similar to a pattern left by an accelerant?

24        A.   There's no obvious signs of charring.

25        Q.   Okay.  So if the black were charring, it would be entirely

Page 5818

 1     consistent with an accelerant, pattern of an accelerant?

 2        A.   If you're talking five litres or five gallons I can --

 3        Q.   Let's put amounts out of it.  We don't know how much was used.

 4     Just you, as a fire investigator, looking at that, does it occur to you

 5     an accelerant might have been used in this case?

 6        A.   No.  It would be larger.  It would be not just one -- this board

 7     is possibly three inches across.  That's probably two inches across.  It

 8     would be --

 9        Q.   So you as a fire investigator would look at this and say, That

10     has no evidential significance in my investigation.

11        A.   That is correct.

12        Q.   Okay.  Thank you.

13             MR. IVETIC:  Your Honour, can we have the witness finish his

14     answer at line 17 to 19?  Mr. Groome is constantly cutting off the

15     witness in the mid of an answer.  And I think that that's --

16             JUDGE ROBINSON:  It was the witness himself who stopped.  I don't

17     think it was Mr. Groome who stopped him.  This is at line 19, isn't it,

18     where he says "it would be ..."

19             MR. IVETIC:  Yes, yes.

20             JUDGE ROBINSON:  It was the witness who himself who stopped.  He

21     stopped himself.

22             Yes, Mr. Groome.

23             MR. GROOME:  Just a few more questions, I'm sorry.

24             THE REGISTRAR:  Exhibit P295, Your Honours.

25             JUDGE ROBINSON:  Mr. Groome, I had given you ten minutes.  You

Page 5819

 1     are ten minutes beyond that.

 2             MR. GROOME:  I have literally six more questions, Your Honour.

 3             JUDGE ROBINSON:  Six more questions?  Very well.

 4             MR. GROOME:  Unless this -- two of them, Your Honour, I just want

 5     to show two pictures, the pictures taken by this witness.  If the Defence

 6     will agree to save the formality of what seems to be a very long process

 7     of trying to call them up in e-court.  They're Y020-3524 and 3432.

 8     They're just two other pictures of the floor.  If Mr. Alarid will agree

 9     to their admission, I would tender them and move forward.

10                           [Trial Chamber confers]

11             MR. GROOME:  So I would tender those two admissions.  There

12     doesn't seem to be an objection.  So 3524 and 3432.

13             THE REGISTRAR:  P296, P297.

14             MR. GROOME:

15        Q.   Mr. McCoy, when there's an intense fire, let's say this was a

16     concrete ceiling, intense fire in this room, the intensity of that fire

17     could cause little pockets to be formed in the concrete above us, would

18     it not, little indentations?

19        A.   If you're talking about spalling, yes.

20        Q.   Some people like the word spalling, some don't like the word

21     spalling; but they're essentially the intense heat causes it to expand at

22     different rates, and we have little indentations; correct?

23        A.   Yes.  The theory behind that is there's still moisture in the

24     concrete, and when it's heated to high temperatures --

25        Q.   I'll call up the picture and get you to finish explaining that.

Page 5820

 1     Could we call Y020-3481.  While that's being called up, please continue

 2     with your explanation of how spalling occurs.

 3        A.   When the super-heated gases heat the moisture in the concrete, it

 4     tends to expand and crack, make little cracks like you said.

 5             MR. GROOME:  3482.

 6             THE WITNESS:  While I'm waiting, I would also like to say that--

 7             MR. GROOME:

 8        Q.   About spalling?

 9        A.   Yes, relating to spalling.

10        Q.   It's up now, again it's my time.  I'm limited very severely on

11     the time.

12        A.   Let me finish just real quick.  Spalling can also take place with

13     super cold, freezing temperatures.

14        Q.   Okay.  The top portion there, just about the centre, the centre

15     right of the photograph, do you see the portion I'm talking about?  Could

16     you circle the --

17        A.   Centre right?

18        Q.   The centre right, the top right quadrant, there's no steel

19     exposed.  Do you see the indentations on the ceiling?

20        A.   You're talking this here?

21        Q.   Yes.  Is that consistent with spalling?

22        A.   Yes, similar, similar.

23        Q.   Okay.  Thank you.  A couple more questions.  I tender that.

24             THE REGISTRAR:  Exhibit P298.

25             MR. GROOME:  And call up 3530, Y020-3530.

Page 5821

 1             THE WITNESS:  And again, spalling can take place with freezing

 2     temperatures also.

 3             MR. GROOME:

 4        Q.   Thank you.  If that were the case, though, I mean, all the

 5     concrete structures in this area are subjected to the same weather

 6     conditions.  It would seem to indicate we would see consistent damage on

 7     the region?

 8        A.   On exterior portions of structures, yes.  On interior of a home

 9     that's occupied --

10        Q.   That's different.

11        A.   -- because there's heat.

12        Q.   Sir, where is this picture taken?  Is it not the area outside

13     under the portico just to the right of the door?

14        A.   Sir, do you have other pictures similar to this one.

15        Q.   You don't recall where you took this picture?

16        A.   Without a reference, before and after ...

17        Q.   Well, I'll ask Mr. Dimas -- I'll try to find a picture and clear

18     it up with him.  Let me ask you:   Is it not -- can we not see here six

19     ends of wood coming through this concrete wall, each of them blackened as

20     if they had been charred?

21        A.   Can you zoom in?

22        Q.   Any one of those boards.

23        A.   The resolution isn't that good on my screen, and again, I'm not

24     denying the fact that there was a fire under this portico that you call

25     it.

Page 5822

 1        Q.   Okay.  Thank you.  Last picture I want to show you, it's

 2     reminiscent of the first picture I showed you.  I'm going to ask that it

 3     be called up, 3684, and ask that a print of it be placed on the ELMO for

 4     you to examine.  I have it here.  Sir, the picture's up on the screen

 5     now --

 6             MR. GROOME:  There's no large picture.  I just have this picture

 7     I'd ask to be placed on the ELMO.

 8        Q.   This is picture again of the upper floor where it was burnt out.

 9     The picture that I showed you yesterday, the tip of that timber is the

10     one on the top right-hand corner.  Are you oriented to where this picture

11     is taken?

12        A.   The one yesterday is right here?

13        Q.   That's -- yesterday, the one -- the circle you've just made.

14     This is the remainder of the floor.  We can see three other beams, two of

15     them appear to be completely burnt out of their pocket and the on in the

16     middle seems to have substantial fire damage but is still hanging on to

17     the wall?

18        A.   Correct.

19        Q.   Sir, can you show us where is smoke plume damage above any of

20     these beams on this wall?

21        A.   It's slightly discoloured there.

22        Q.   So you see smoke damage there?

23        A.   Yes.

24        Q.   Okay.  Thank you.

25             MR. GROOME:  I have no further questions.  I tender that into

Page 5823

 1     evidence, Your Honour.

 2             JUDGE ROBINSON:  Yes.

 3             THE REGISTRAR:  That's Exhibit P299.

 4             JUDGE ROBINSON:  Thank you, Mr. Groome.

 5             Mr. Ivetic, any re-examination?

 6             MR. IVETIC:  Yes, Your Honours.  If we can keep this up on the

 7     screen for the moment.  I'll start from backwards since this was an area

 8     I already planned on going to since yesterday Mr. Groome spent a lot of

 9     time with just the timber on the right being on the screen and zoomed in

10     out of context.

11                           Re-examination by Mr. Ivetic:

12        Q.   Now, you've identified certain signs that you believe to be

13     evidence of the smoke plume damage on the bricks, and you had yesterday

14     the testimony that the bricks are not as absorbent as concrete, but I'd

15     like to pull back if we can from this picture and give Y020-3680,

16     Mr. McCoy.  And hopefully when that comes up, you'll be able to locate

17     Mr. Groome's timber from yesterday in the middle of the picture.

18             Now, having the full picture in front of you instead of -- and if

19     we could zoom in on that centre portion.  Zoom in some more.  Not that

20     much.  Up -- one more back.  There.  That'd be fine.

21             Sir, looking now at the full picture of the area of the bricks

22     that have deteriorated above that timber from yesterday that Mr. Groome

23     focussed on, do you see anything additional with this better view of that

24     timber that you might consider to be the effects of smoke and/or fire

25     evidenced on the brick?

Page 5824

 1        A.   Again, what I see from this picture to appear like smoke damage,

 2     and again, it's common to have V patterns, which would be a pattern like

 3     that with severe charring or heavier charring in the V that we see here,

 4     along with other -- there's more, but ...

 5        Q.   We'll get to the other -- to the timbers in a second.  But the

 6     point, is I guess, that even decade or so of Visegrad rains has still not

 7     removed the signs of the smoke and fire damage even for this timber that

 8     Mr. Groome focussed on yesterday for the majority -- or a large portion

 9     of time.

10             MR. IVETIC:  Can I have this mark -- is that correct?

11             JUDGE VAN DEN WYNGAERT:  Excuse me, Mr. Ivetic.  I can't

12     understand what the witness means.  In the V pattern, more charring?

13     Could you --

14             THE WITNESS:  Okay.  If you have something on fire up against a

15     wall, it will leave a V pattern.

16             JUDGE VAN DEN WYNGAERT:  How does it show on the photograph?

17             THE WITNESS:  Okay.  If you zoom in -- I didn't highlight the

18     whole area, but there's damage above --

19             MR. IVETIC:  Before we zoom, in I want to make sure we don't lose

20     the markings.  And I'd move to admit the markings before we zoom in.

21             THE REGISTRAR:  Exhibit 1D174.

22             THE WITNESS:  Down.  I'm sorry.  Up.  More.  More.  Okay.  Sorry.

23             MR. IVETIC:  You have to wait and listen to the court usher,

24     Mr. McCoy.  She's -- it's best to listen to her.

25             THE WITNESS:  There is smoke damage, smoke discolouration in a V

Page 5825

 1     pattern above that timber.  It's darker-coloured areas of the tile.

 2     Arson investigators, we're trained to read patterns.  That's what leads

 3     us to the origin.

 4             JUDGE VAN DEN WYNGAERT:  Thank you.

 5             THE WITNESS:  You're welcome.

 6             JUDGE VAN DEN WYNGAERT:  I fail to see it, but if you say so.

 7             MR. IVETIC:  I guess we can have this one marked, as well, since

 8     the witness has marked that up, and have that admitted as the next 1D

 9     exhibit number.

10             JUDGE ROBINSON:  Yes.

11             MR. IVETIC:  And if Your Honour has follow-up questions on that,

12     I'll defer.

13             THE REGISTRAR:  Exhibit 1D175.

14                           [Trial Chamber confers]

15             JUDGE ROBINSON:  I'm not sure -- Witness, are you saying we

16     should have seen on this photograph a V pattern?

17             THE WITNESS:  Yes, sir.  Again --

18             JUDGE ROBINSON:  Where is it?

19             THE WITNESS:  Again, smoke and by-products of heat and flame move

20     up and out, okay, in a V.

21             JUDGE ROBINSON:  [Microphone not activated] but is that visible

22     here?

23             THE INTERPRETER:  Microphone, Your Honour, please.

24             THE WITNESS:  In my opinion, yes.

25             JUDGE ROBINSON:  [Microphone not activated] trained eyes.

Page 5826

 1             THE WITNESS:  My opinion, yes, and you can review this, again,

 2     with my colleague, Ben Dimas.

 3             JUDGE VAN DEN WYNGAERT:  I can't see anything, frankly.  There is

 4     nothing, colour or anything different showing --

 5             THE WITNESS:  There is discolouration in this area.  There is --

 6             JUDGE VAN DEN WYNGAERT:  It's more damage, but it's not a colour

 7     difference.

 8             THE WITNESS:  It's discolouration on the bottom side of those

 9     blocks.  In my opinion, that's -- that's the way a pattern is left.

10             JUDGE ROBINSON:  What you just drew, that's a V.

11             THE WITNESS:  Yes.  That's a V --

12             JUDGE ROBINSON:  And that's the way the smoke went?

13             THE WITNESS:  Typically, you'll have damage in the shape of a V

14     within the V.  It's typical.  Sometimes it would be an inverted V if

15     there is an accelerant and it's a wide area on the bottom, it would be an

16     inverted V.

17             JUDGE VAN DEN WYNGAERT:  [Microphone not activated] and is it

18     your evidence, then -- that --

19             THE INTERPRETER:  Microphone, Your Honour, please.  Microphone.

20     Microphone for the judge, please.  Microphone please.

21             MR. GROOME:  The interpreters are asking for you to turn it on.

22             JUDGE VAN DEN WYNGAERT:  I'm sorry.  Is it then your evidence

23     that you would see similar Vs above the other beams?

24             THE WITNESS:  Okay.  The aspect of the underside of these blocks

25     that are not there, that are damaged, leads me to believe that they

Page 5827

 1     collected and were protected, okay, from the elements, but he also

 2     collected as the smoke was going up.  The smoke and heat and soot, they

 3     collected underneath and continued going up.

 4             JUDGE VAN DEN WYNGAERT:  Why wouldn't you see it above the other

 5     beams, then, if that were to be ...

 6             THE WITNESS:  Okay.  In this area, there's some there, possibly

 7     some there, some there -- and there is -- there is discolouration in this

 8     area.

 9             JUDGE VAN DEN WYNGAERT:  Thank you.  Please proceed, Mr. Ivetic.

10             MR. IVETIC:  Thank you, Your Honours.  Can we have this marked

11     and admitted as the next available 1D exhibit number.

12             JUDGE ROBINSON:  Yes.

13             THE REGISTRAR:  1D176.

14             MR. IVETIC:  Thank you, Madam Registrar.

15        Q.   Now, sir, focussing on the timber on the right-hand side of this,

16     you indicated there is some evidence of smoke damage.  I'd like to now

17     have photograph Y020-3681, which is a close-up taken of that exact same

18     location.  Perhaps you can see it better, and if you can describe for us

19     what you see in the photograph when it comes up, Mr. McCoy.

20        A.   Again, this is a close-up, and I see damage -- that brick is

21     damaged.

22        Q.   Thank you, sir, and again this, has been exposed to the elements,

23     and we see yet after so many years, we still see the damage.  Is that

24     your testimony?

25        A.   Correct.

Page 5828

 1             MR. IVETIC:  Can we have this one marked and admitted as the next

 2     1D exhibit number.

 3             JUDGE ROBINSON:  Yes.

 4             THE REGISTRAR:  Exhibit 1D177.

 5             MR. IVETIC:

 6        Q.   And you indicated there's a difference between the smooth bricks

 7     and concrete.  If we can have Exhibit Y020-3688, which is, I believe, a

 8     close-up of the -- of one of the other sides there on the upper levels of

 9     the house, and ask you if you could comment.  Do you see anything in

10     there of import to us after all these years on the concrete, not the red

11     brick but the concrete above, anything that might be remnants of a fire

12     or smoke damage.

13        A.   Again, this picture's -- I mean, this whole area --

14        Q.   Again, you're going to have to cooperate with the court officer,

15     sir.

16        A.   It's very probable this was damaged by smoke.  This area below,

17     I'm not sure because of the -- it's not uniform, but this area above

18     looks more uniform.

19        Q.   You've touched on an important point, the uniformity of damage.

20     Did you see anything like this down in the basement room where the fire

21     was alleged to have been, the large fire?

22        A.   No, sir.

23             MR. IVETIC:  If we could have this marked as the next 1D exhibit

24     number and admitted into evidence, Your Honours.

25             JUDGE ROBINSON:  Yes.

Page 5829

 1             THE REGISTRAR:  1D178.

 2             MR. IVETIC:  And I apologise.  I need to call up Y020-3639.  It

 3     did receive a P number, I believe; but I can't find it in my notes, so

 4     we're going to have to go back to the original and ...

 5        Q.   Sir, what you're going to see is a photograph of the -- of a

 6     portion of the wood -- of the wood door jam that Mr. Groome asked you

 7     about and asked if that was ash or if that was burn damage.  And the

 8     question I have for you is, let's for the time being assume that

 9     Mr. Groome's hypothesis - and adopt it, shall we say - that this is fire

10     damage.  Would you expect the door jam to have similar damage?  That is

11     to say, would you expect there to be uniformity of the damage to this

12     wood if, in fact, it were due to a fire?

13        A.   Yes.

14        Q.   Why?

15        A.   Fire doesn't skip.  It starts and stops.  Burn damage doesn't

16     skip.  It's uniform.  It starts where the point of ignition is, and it

17     continues until it stopped burning, whether it's a piece of wood or, for

18     that matter, a forest fire.

19        Q.   And so, again, in your opinion based upon the pattern of the

20     darkening and the other damage to this wood, is this markation a result

21     of fire damage?

22        A.   No, it is not.

23        Q.   Now with respect to the floors, the wood floor in the basement

24     room, Mr. Groome asked you about that, and I'd like to ask you a few

25     things.  Now, there is some talk about an accelerant being poured onto

Page 5830

 1     the floor and some talk about the burn patterns there.  If you have a

 2     fire being started in a room where the floor has been saturated with some

 3     form of accelerant where you have 60 to 70 persons with their clothing

 4     burning for several hours, would the fire only affect the wood

 5     floor-boards where the accelerant was or wood the fire consume the wood

 6     floor-boards beyond where the accelerant was poured, in your opinion?

 7        A.   In my opinion, in an area the size of the basement on

 8     Pionirska Street with that many persons and that much fuel, there would

 9     be such a thing as flashover with that much fuel, both the persons, the

10     clothing being fuel and the accelerant being fuel, flashover is a room

11     reaches ignition temperature; everything inside the room reaches its

12     ignition temperature and is ignited.  Every surface in this room would

13     show charring, would show damage, fire damage, black burnt wood, every

14     single surface with temperatures that high.

15        Q.   And now you've used an interesting term.  You've said with that

16     much fuel, and it seems to me you're referring to the people as well.

17     What happens when fire, intense fire begins burning a human body, human

18     flesh, human fat.  What effect does that have on a fire, especially when

19     there's large numbers of human bodies, sir, in your experience and

20     opinion as a fire-fighter and arson investigator?

21        A.   Reviewing case studies on one particular fire where over 101

22     people did perished in the United States, in the state of Rhode Island,

23     the person's tissue, the person's body fat, the person's hair and

24     clothing do becomes fuel and do ignite.  They do add to the flame

25     process, to the burning process, to the heat.  They become fuel

Page 5831

 1     themselves.

 2        Q.   Thank you, sir.  Now, with respect to one more question as to

 3     the -- actually, maybe two more questions as to the flooring.

 4             MR. IVETIC:  If we could have --

 5        Q.   You indicated there was moisture, and Mr. Groome asked you about

 6     the sources of moisture, and he showed you just one photograph of the

 7     ceiling.  I'd like to show Y020-3621, if we can, on the e-court.  And

 8     first, sir, when this comes up, I'd like to ask you if, indeed, that is a

 9     photograph from inside the basement room, the suspect room where it is

10     alleged that this fire occurred and these people perished.

11        A.   Yes, that is from inside the basement.

12        Q.   Now, sir, if I could direct your attention to the exposed rebar

13     in the ceiling, and to the left-hand side of the photograph there appears

14     to be some white chalky substance hanging from that portion.  Could you

15     tell us -- right there.  Could you tell us -- could you tell us if you

16     observed such substances and what they were -- what they were, what that

17     is.

18        A.   That area right there, again, as I've described yesterday are

19     stalagtites.  They're tiny little, I believe, calcium crystals from the

20     moisture dripping down from above, from the crack foundation.

21        Q.   And so with respect to this area of wood underneath this ceiling

22     where the rebar is exposed and where active water is seeping in, would

23     you expect to see more or less water damage to the wood directly below

24     this part of the ceiling as opposed to other parts of the ceiling where

25     there is no damage?

Page 5832

 1        A.   Obviously more damage below this area.

 2        Q.   Y020-3616, I believe it was one of the photographs that was used

 3     by Mr. Groome that we might even have a large copy of.  Unfortunately, I

 4     don't have the large photographs.  We don't have those capabilities, nor

 5     were we provided the Prosecution's set.  But sir, on the wood there,

 6     there appears to be some kind of gloss --

 7             MR. IVETIC:  We should save this one, I'm sorry.  Save this one

 8     and admit it as the next available 1D exhibit number, Your Honours.  I

 9     apologise.

10             JUDGE ROBINSON:  Yes.

11             THE REGISTRAR:  Exhibit 1D179.

12             MR. IVETIC:  I stand corrected.  The Y020-3616 was apparently not

13     used by the Office of the Prosecutor.  They used the other one preceding

14     it, but I'd like to pull that up and ask the witness questions once we

15     have a chance, and I apologise for speeding ahead.  I'm trying to make

16     efficient use of the time.

17             This should be fine.

18        Q.   Sir, in the bottom right quadrant of this photograph, and if we

19     have the large one, we can put it on the ELMO, but there appears to be

20     some shiny glossy appearance to the wood.  While you were on the scene,

21     what was that?  What was causing that effect of gloss or shininess to the

22     wood?

23        A.   In my opinion, I believe it was moisture, just damp, wet wood.

24        Q.   Thank you, sir.

25             MR. IVETIC:  I'd like to have this introduced into evidence if it

Page 5833

 1     has not already been so.  Is it?

 2             THE REGISTRAR:  Exhibit 1D180.

 3             MR. IVETIC:  Thank you, Madam Registrar.

 4        Q.   Now, sir, Mr. Groome asked you about this floor, and he says

 5     if -- he seemed to suggest that animals right have been walking over the

 6     floor destroying evidence of alligatoring or destroying evidence of

 7     charcoaling in the wood.  The question I have for you, sir, is even if

 8     animals had walked all over the wood floor in that room, would you as an

 9     expert and would any fire arson expert be able to tell if it had been on

10     fire or not?

11        A.   If there were extensive tests, possibly, but just visually, no.

12        Q.   So in your opinion, even if taking into account that animals

13     right have walked over this floor, you still contend that there was not

14     evidence of fire damage to the floor --

15             MR. GROOME:  Objection, Your Honour.

16             JUDGE ROBINSON:  That's not what he said at all.  That's not what

17     he said at all, Mr. Ivetic.  He said if there were extensive tests,

18     possibly, but just visually, No. But you appear to be putting to him the

19     evidence which you wish to get.

20             MR. IVETIC:  I apologise.  I thought I heard him say something

21     more, but --

22             THE WITNESS:  The evidence shows that there were areas that were

23     not burnt.

24             MR. IVETIC:

25        Q.   And lastly, there was some question of furring strips.  Did you

Page 5834

 1     see in that basement room any evidence of any divots or holes left from

 2     furring strips in a regular pattern across the walls indicating that

 3     anything had been affixed to them at any point in time?

 4        A.   No, sir.

 5             MR. IVETIC:  Thank you, Mr. McCoy.  I have no further questions

 6     for you.

 7             Thank you, Your Honours.

 8             JUDGE ROBINSON:  Mr. McCoy, that concludes your evidence.  We

 9     thank you for coming to the Tribunal to give it.  You may now leave.

10             THE WITNESS:  Thank you.

11                           [The witness withdrew]

12             JUDGE ROBINSON:  Next witness.

13             MR. ALARID:  Dr. Linda LaGrange, Your Honour.

14             And Your Honour, just for a little bit of housekeeping, just to

15     inform the Court that our web mail is down, and all other access to the

16     outside, the LiveNote we got running before court, but I tried to open

17     web mail after the fact, and nothing's coming in on our servers so.

18                           [Trial Chamber and registrar confer]

19             JUDGE ROBINSON:  That's not peculiar to you.  That's affected the

20     entire building, I understand.

21             MR. ALARID:  Okay.  It doesn't surprise me, I guess, but ...

22                           [The witness entered court]

23             JUDGE ROBINSON:  Let the witness make the declaration.

24             THE WITNESS: [Interpretation] I solemnly swear that I will speak

25     the truth, the whole truth and nothing but the truth.

Page 5835

 1                           WITNESS:  LINDA LAGRANGE

 2             JUDGE ROBINSON:  You may sit, and you may begin, Mr. Alarid.

 3             MR. ALARID:  Thank you, Your Honour.

 4                           Examination by Mr. Alarid:

 5        Q.   Good morning, Dr. LaGrange.  How are you today?

 6        A.   I'm fine, thank you.

 7        Q.   Now, could you please state your full name for the Court, please.

 8        A.   My name is Linda Shannon LaGrange.

 9        Q.   And where do you currently reside?

10        A.   I reside in Las Vegas, New Mexico.

11        Q.   Are you married?

12        A.   Yes, I am.

13        Q.   And I'm slowing down and my colleague is telling me to slow down

14     because we'll have to observe pauses between my questions and answers

15     because the translators are attempting to keep up and also the

16     court reporter is taking down everything we say, so I'll try and go a

17     little slower.

18        A.   I understand.

19        Q.   What is your current occupation?

20        A.   I'm employed by New Mexico Highlands University.  I'm a full

21     professor of experimental psychology.  I'm also the associate

22     vice-president for academic affairs.

23        Q.   And please take us through your education going back to

24     post-secondary school and tell us what it took to get where you're at

25     today.

Page 5836

 1        A.   I attended -- well, I got my undergraduate degree in elementary

 2     education and music at the University of Alaska, and then I got a

 3     master's degree in experimental psychology at New Mexico Highlands

 4     University, and I got my Ph.D. in experimental psychology at the

 5     University of Albert in Edmonton, Canada.

 6        Q.   And tell the Court, please, what is experimental psychology and

 7     maybe differentiating what are the other fields from psychology.

 8        A.   Roughly speaking, divided between clinical psychology and

 9     experimental psychology, and I think clinical psychology is what most

10     people think of when they imagine what a psychologist does, ask that's

11     usually psychotherapeutic interventions.  Experimental psychology is

12     broken down into several sub-fields such as neuroscience, physiological

13     psych, psychopharmacology, psychopharmacology, so that's my emphasis.

14        Q.   And please explain to the Court what is psychopharmacology.

15        A.   Psychopharmacology is the study of the effects of psychoactive

16     drugs on brain and behavior.

17        Q.   And what kind of psychoactive drugs are you studied particularly?

18        A.   The emphasis, at least in my own research career, was alcohol,

19     but the instruction that I provide for students is in all psychoactive

20     drugs.

21        Q.   What course -- you're the vice-president in charge of academic

22     affairs?

23        A.   Yes.

24        Q.   What are your duties as vice-President?

25        A.   My office supervises all external intramural funding for grants

Page 5837

 1     and research purposes, state, federal, and private.  My office also

 2     supervises the graduate school, and we also supervise the institutional

 3     research office, which gathers data about the institution, and then

 4     finally we also oversee all of the off-campus centres, the campuses that

 5     aren't in Las Vegas.

 6        Q.   And also, it's my understanding that you're just simply a tenured

 7     professor?

 8        A.   Yes.

 9        Q.   And what courses do you teach?

10        A.   I still teach, actually.  I try to teach one course a semester,

11     and the courses that I try to teach every year are physiological

12     psychology and psychopharmacology.

13        Q.   And what's a physiological psychology?

14        A.   Well, physiological psychology is sort of the study of linking

15     sort of the peripheral nervous system functions such as moving around,

16     interacting with the world; with central nervous function, which is sort

17     of the brain and processing of that information.

18        Q.   And I note that -- 2007 to 2008 you were in dean of graduate

19     studies and research.  What did your duties consist of as that?

20        A.   Well, those are now subsumed under my new title, and again, the

21     research is just processing of grant applications to funding agencies to

22     ensure that when we send them out that they're of appropriate quality

23     when they get reviewed at the national level.

24        Q.   And with the court usher's assistance, could we please call up

25     1D22-0686, a range to 1D22-0691.

Page 5838

 1             Now, what we have here is the CV that we tendered to the

 2     Prosecution in January of this year, but it's my understanding -- and you

 3     forwarded an updated one.  What's the difference between your curriculum

 4     vitae -- oh, excuse me.  It's 1D22-0668, and we got 0686 here.  And

 5     that's my dyslexia written down.

 6             And what would the difference be between your -- I'm sorry,

 7     between your older CV and your newer one, while we wait?

 8        A.   Okay.  I'm looking at one that I think you submitted that says

 9     June 2008, I believe.

10        Q.   Okay.

11        A.   If that's correct, then I can update that by adding an extra

12     review panel for NIH for the spring, and then also I believe that there

13     are -- I'm not sure if there's -- let's see.  There are three, maybe four

14     more appearances as an expert witness listed.

15        Q.   Okay.

16        A.   And I think that would be the only differences.

17        Q.   All right.  And let's try --

18             MR. WEBER:  I'm sorry to interrupt, Mr. Alarid.  Good morning,

19     Your Honours.

20             JUDGE ROBINSON:  Yes.

21             MR. WEBER:  The Prosecution just ask that they be provided a copy

22     of that most current CV during the course of the break so we could review

23     it.

24             JUDGE ROBINSON:  Yes, that should be done.

25             MR. ALARID:  Absolutely.  Thank you.  And I believe the old one

Page 5839

 1     that we have is 1D022-0667.  Let's try that one, please, and page 2 is

 2     what we would be asking for.

 3        Q.   Now, let's go back to when you became an assistant professor of

 4     psychology.  That's going back to 1989?

 5        A.   Yes.

 6        Q.   Take us through your academic experience and professor

 7     experience.

 8        A.   For those first four years as an assistant professor, I was

 9     teaching full-time for the first two years, and then because I got grant

10     funding, I had some release time, so I did a combination of instruction

11     and research.  And the courses that I taught then were

12     psychopharmacology, which I've taught every year for 20 years; and

13     physiological psych, which I've also taught every year for 20 years; and

14     then drugs and behavior, research methods and statistics, and sensation

15     of perception.

16             JUDGE ROBINSON:  Mr. Groome, are you contesting the professor's

17     qualifications?  We have already decided to admit her as an expert.

18             MR. GROOME:  Your Honour, clearly we have no qualms with her --

19             JUDGE ROBINSON:  Sorry, I should have addressed myself to

20     Mr. Weber.  I'm sorry, Mr. Weber.

21             MR. GROOME:  Just as a general matter then I'll leave it to

22     Mr. Weber to address you specifically.  Some of these experts,

23     Your Honour, we have absolutely no question.  They're clearly qualified.

24     It's the boundaries of the expertise that we do have some contention

25     with, so I'll let Mr. Weber address the Chamber on what we believe are

Page 5840

 1     the appropriate boundaries of Dr. LaGrange's expertise.

 2             JUDGE ROBINSON:  Yes, because it's occurring to me Mr. Alarid,

 3     that we don't need to have all of this detail.

 4             MR. ALARID:  Okay, and some of it is only for the Court's benefit

 5     as opposed to qualifications.

 6             JUDGE ROBINSON:  We have the --

 7             MR. ALARID:  And if you feel comfortable, I'm okay.  All right.

 8             JUDGE ROBINSON:  Mr. Weber, though.

 9             MR. WEBER:  Just to be clear, with respect to the first prong

10     that was enumerated by the Court yesterday, if the Defence is tendering

11     her as an expert in experimental psychology, if that's the field she's

12     being tendered in, clearly this witness is testifying currently to

13     experience in that area.  If that's the expertise that she's been

14     tendered in, then by all means, let's admit the CV and the Prosecution

15     has no objection to proceeding with other matters.  We would still,

16     though, contest as enumerated by Mr. Groome that the nature of this

17     witness's expertise with respect to the second prong, she doesn't have

18     the necessary competency to be providing the nature of those opinions

19     that would material advance this Chamber in the system and determination

20     of the issues are before --

21             MR. ALARID:  And anticipating that caveat, Your Honour, one, we

22     would have tendered her as experimental psychology but with a background

23     in psychopharmacology as she just testified.  She taught the course for

24     20 years, and we could go a little bit more into her focus of

25     psychopharmacology, but it is psychopharmacology that is the reason she's

Page 5841

 1     here.  I'm sure she'd like to perform an experiment on Mr. Vasiljevic,

 2     but that's not available.

 3             MR. WEBER:  And, Your Honours, I believe the witness was

 4     extraordinarily clear that a sub-set of experimental psychology is

 5     psychopharmacology.

 6                           [Trial Chamber confers]

 7             JUDGE ROBINSON:  Well, you can raise whatever you wish in

 8     cross-examination, of course.

 9             MR. ALARID:  Thank you.

10             JUDGE ROBINSON:  But it seems to us that her qualifications are

11     undisputed.

12             MR. ALARID:  Thank you, Your Honour.  Well, then, we'll tender

13     her CV as the next available 1D number.

14             JUDGE ROBINSON:  Yes.

15             MR. ALARID:  With the Court's indulgence, I'll simply go into a

16     little bit more regarding what psychopharmacology is and what it can show

17     before we endeavour into any opinions.

18             THE REGISTRAR:  Exhibit 1D181.

19             MR. ALARID:

20        Q.   Okay.  Let's focus on psychopharmacology and specifically the

21     effects of drugs and alcohol.  Explain a little more what that's about

22     and what kinds of different things you study and teach your students.

23        A.   Well, I think the primary concept is that the effects of drugs

24     and/or alcohol on the body are very specific to certain brain areas and

25     even more specific to certain neurotransmitter systems and circuits

Page 5842

 1     within the brain; and so that when these students that I'm instructing

 2     graduate and are practicing in mental health fields, they are aware of

 3     the effects of both recreational drugs and therapeutic drugs and are able

 4     because of their training to make that distinction and are able to

 5     diagnose substance abuse versus just side-effects from psychotherapeutic

 6     medication.

 7             JUDGE ROBINSON:  Mr. Alarid, we're going to take the break now

 8     for half an hour.

 9             MR. ALARID:  Yes, sir.  Thank you, Your Honour.

10             JUDGE ROBINSON:  Half and hour.

11                           --- Recess taken at 10.20 a.m.

12                           --- On resuming at 11.00 a.m.

13             JUDGE ROBINSON:  Thank you.  Yes, Mr. Alarid, please continue.

14             MR. ALARID:  Just a moment, Your Honour.  I'm just looking at the

15     last bit of the transcript.

16        Q.   Okay.  We were starting to -- just to instruct the -- or inform

17     the Court, rather, as to what psychopharmacology is versus other fields.

18     What's the difference between a psychopharmacologist and let's say a

19     toxicologist or a medical doctor who's also interested in the effects of

20     drugs and alcohol on the human being?

21        A.   Well, there's considerable overlap, and those three examples that

22     you gave, I guess the primary distinction at least at this point is the

23     effects on the living person in terms of the ingestion of psychoactive

24     drugs and their impact on behaviour.  As opposed to when you talk about

25     toxicology, you're usually implying that there was an overdose or

Page 5843

 1     something was tainted in the drugs, and so it's up to that expert to

 2     determine the cause of death or illness.

 3        Q.   And what would a medical doctor's primary concern be with regards

 4     to alcohol ingestation or drug ingestation?

 5        A.   Well, I suspect the primary reason would be -- you know, there

 6     are a lot of sub-fields in medical doctors, as well; but if you're

 7     talking about a general practitioner, I think the primary purpose a

 8     general practitioner would have would be to identify in his or her

 9     patients abuse of a substance and then knowing where to refer that

10     patient.

11             MR. ALARID:  And could we have back on the screen the CV that was

12     the last document up.

13        Q.   And just going through your primary research interests, please go

14     through those with the Court and how those might be relevant to what

15     you've been asked to come to court here today.

16        A.   Well, I've done a number of different areas in research.  The

17     first one was looking at biochemical markers of excessive alcohol

18     consumption so you could detect that a person -- in particular, what we

19     were looking at was females who might be pregnant who were also abusing

20     alcohol.  A way to devise a simple lab test that would alert the general

21     practitioner to the fact that this woman might be abusing alcohol while

22     pregnant.  And as you know, alcohol is metabolized very quickly, so the

23     test had to be indirect test of some other substance that indicated a

24     high ingestion of alcohol.

25             And then my field also included the research into the effects of

Page 5844

 1     alcohol interacting with personality characteristics that might predict

 2     aggression under the -- when someone was under the influence of alcohol,

 3     and then the sort of final area that I looked at was using flavonoids to

 4     protect the foetus from alcohol abuse when in utero.

 5             JUDGE ROBINSON:  Much of your work, then, is of a scientific

 6     character --

 7             THE WITNESS:  Yes, sir.

 8             JUDGE ROBINSON:  -- and would require, it seems to me, a fairly

 9     strong basis in science.  Looking at your CV, can you point me to the

10     specific period when you acquired that kind of scientific basis?

11             THE WITNESS:  When I was a graduate student at New Mexico

12     Highlands University, my masters thesis was a biochemical thesis where I

13     took blood samples and analysed them for different endogenous substances

14     that might indicate the presence of personality characteristics, and then

15     also when I was in the Ph.D. programme, I was looking at information

16     processing and how much information a human brain can process at a single

17     time using different sensory systems.

18             JUDGE ROBINSON:  I might have been misled because your first

19     degree was in a wholly arts field.

20             THE WITNESS:  Yes, it was in music and elementary ed, yes.

21             JUDGE VAN DEN WYNGAERT:  Doctor, what would be the difference

22     between your training and the training of a neurologist?

23             THE WITNESS:  I suspect that a neurologist would have more

24     hands-on experiences with the devices that are used to image the brain

25     and the brain functions; for instance, they'd have more experience with

Page 5845

 1     MRIs and CAT Scan and those kinds of things.

 2             JUDGE VAN DEN WYNGAERT:  Do you do MRIs yourself?

 3             THE WITNESS:  I do not.

 4             JUDGE ROBINSON:  Just a minute.

 5             Judge David.

 6             MR. ALARID:  Absolutely.

 7             JUDGE DAVID:  Dr. LaGrange, if you feel related to experimental

 8     psychology in the sense of the work being done by Kerner at New Mexico

 9     School of Medicine and [indiscernible] as chairman of the psychology

10     department during many years?

11             THE WITNESS:  Related by not identical, certainly not identical,

12     but it's -- in the sense that it is experimental, it's close, and I'm

13     aware of those folks.  I actually was going to go to UNM to get my Ph.D.

14     in a neuroscience program, but I chose instead to go to the University of

15     Alberta; instead, so I met many of the folks there with the psychology

16     and neuroscience department.

17             JUDGE DAVID:  And what interrelations do you have in your field

18     with other psychological schools.  I am talking about cumulative

19     psychology, also the psychology of meanings, you know, in other related

20     fields.  You have just talked about some interrelations and overlapping.

21             THE WITNESS:  Right, well my primary relationship was not with

22     psychology but it was with University of New Mexico's pharmacology

23     school, and so my mentor as I was beginning my work as a professor in

24     1999 was Dr. Edward Dreyus [phoen] at UNM pharmacy school, and so I did

25     almost all of my research in his lab because he had such a well-equipped

Page 5846

 1     biochemical lab, and so most of my collaboration has been with UNM's

 2     pharmacology school in the school of medicine.

 3             JUDGE DAVID:  Were you a graduate student at the time that

 4     [indiscernible] was the president of Las Vegas?

 5             THE WITNESS:  Soon afterwards.

 6             JUDGE DAVID:  Thank you very much.

 7             MR. ALARID:

 8        Q.   Just focussing -- just looking at your report, I know you've

 9     taught 18 times, I'm assuming that's 18 years, as Psychology 612,

10     psychopharmacology.  Is that 18 times being 18 years?

11             THE WITNESS:  That's 18 years now it's 20.  That's the older CV

12     that you're looking at.

13        Q.   That's true.  That's the one I printed out.  Now, with regard to

14     psychopharmacology, tell the Court, please, about the basic

15     pharmacological principles of absorption, distribution, inactivation, and

16     elimination of a substance.

17        A.   Part of the course, in psychopharmacology, at least what I have

18     my students, do is to be able to determine how a particular dose, and

19     we'll just use alcohol as an example, since that's what we're discussing,

20     how much alcohol would be consumed to produce a certain peak on blood

21     alcohol level.  And when you're trying to find out those values, you have

22     to take into account how the drug in this case how the alcohol was

23     ingested.  So once it's ingested, it has to be distributed throughout the

24     body so have you to know the rate of distribution throughout the body.

25             Once it's been distributed throughout the body, then it has to

Page 5847

 1     begin -- it's absorbed into the tissue.  In the case, what we're

 2     interested in is brain tissue.  Once that has occurred, the alcohol has

 3     to be eliminated because, in fact, it is a toxin, so in order for it to

 4     be eliminated it has to be metabolized into water soluble substances,

 5     which it is; and they have to know how that metabolization takes place,

 6     also what affects its rate, how fast it occurs, and then be able to

 7     calculate from the beginning of alcohol consumption to the ultimate

 8     elimination of all active alcohol molecules in the body.  So it's

 9     ingestion, absorption, distribution, metabolization, and then

10     elimination, and they have to know all those phases.

11        Q.   What about the cellular mechanisms involved in drug actions, and

12     let's just use alcohol again.

13        A.   Well, alcohol is a very interesting drug in that it has actions

14     at particular neurotransmitter receptors, but it also interacts with

15     cellular membranes.  So it has two mechanisms of action, which are

16     entirely different but nevertheless have profound effects on behavior.

17        Q.   What kind of profound effects on behaviour are those?

18        A.   Those are the effects that most of us can casually observe in

19     someone who's had too much to drink, and that is loss of equilibrium in

20     terms of motor skills and fine motor skill function as well as cognitive

21     abilities and impulse control.

22        Q.   And what about the knowledge of a major neurotransmitter and

23     neuroendocrine systems?

24        A.   Alcohol interacts primarily with one neurotransmitter system,

25     which is GABA inhibitory system, which is why alcohol is a depressant

Page 5848

 1     because it is an agonist at GABA receptors, and, therefore, if you

 2     consume enough alcohol, you have a sort of system-wide inhibition which

 3     is why it's called a depressant.

 4        Q.   And specifically, what about -- how would alcohol fall into the

 5     issue of therapeutic uses of psychoactive drugs?

 6        A.   Well, it's not used therapeutically, or at least it shouldn't be.

 7     There is some use in self-medication, but if you're psychoactive drugs to

 8     treat alcoholism; for instance, if you check into an emergency room and

 9     you've consumed too much alcohol, what they will do is put you on an IV

10     benzodiazepine drip, because benzodiazepine act at GABA systems as well

11     not the same receptor but on the same systems; and so you can use these

12     therapeutic drugs to alleviate withdrawal symptoms, which in alcoholism

13     can cause death, they are very serious.

14        Q.   What other kind of withdrawal symptoms might you experience if

15     you're an alcohol in the emergency room?

16        A.   Some alcoholics will have DTs, which is a serious elevation of

17     body temperature because of the rapid shaking, the tremors that they

18     display.  They probably won't have any memory for how they got there or

19     what caused the situation to occur in the first place.  And I don't know

20     if you're referring to just those short-term --

21        Q.   How about long-term effects of DTs or detoxification?

22        A.   Not so much the DTs but the long-term effects of prolonged,

23     chronic, heavy alcohol consumption are that there's inevitably some

24     organic damage to the brain because as I mentioned before, alcohol is a

25     toxin; and the process of metabolizing alcohol, you also produce toxic

Page 5849

 1     by-products which are free radical species which will bind to lipids and

 2     membranes of the cells and cause, in some cases, irreversible cellular

 3     damage, which will result in long-term neuronal loss, particularly in the

 4     frontal cortex.

 5        Q.   You also teach Psychology 508, drugs and behavior.  Tell us about

 6     that course and why it might be relevant to what you were called here

 7     today.

 8        A.   The psychopharm course is more focussed on psychotherapeutic

 9     drugs whereas drugs and behavior is a course that is offered to criminal

10     justice majors, health majors, psychology majors; and it's sort of a

11     general overview of, again, cellular mechanisms of psychoactive drugs,

12     but the focus here is more on recreational drugs and drugs of abuse and

13     signs and ways of detecting that abuse and then what to do once it's been

14     detected.

15        Q.   And how might consumption and specially chronic consumption of

16     alcohol effect behavior?

17        A.   Are you speaking of any kind of particular behavior or just --

18        Q.   Generally speaking at first.  We might --

19        A.   Okay.  Just the long-term chronic consumption of alcohol, how

20     might it affect behavior; isn't that correct?

21        Q.   Yes.

22        A.   Well, it depends on the amount we're describing as heavy, but if

23     a person has been consuming alcohol for say 10, 15 years daily, or in --

24     even worse is not the daily consumption but a worse pattern of drinking

25     in terms of negative effects on behavior is binge drinking where you

Page 5850

 1     achieve these amazingly high blood alcohol levels which will then have

 2     profound effects on brain function.  So ultimately the person would be

 3     less able to reason, plan, problem-solve, certainly short-term memory,

 4     and to some extent long-term memory would be negatively impacted.

 5        Q.   And just specifically speaking, have you been published in the

 6     area of psychopharmacology and alcohol consumption and abuse?

 7        A.   Yes, I have.

 8        Q.   How many times?

 9        A.   Well, within just human consumption, only three times.  The rest

10     of the publications have been with indirect measures of consumption where

11     we've assessed how much the person has consumed by self-report and then

12     correlated that with biochemical correlates in the blood and also

13     personality measures.

14        Q.   Now, I note that you've been a reviewer for several publications.

15     What are the personality and individual differences?  You've been a

16     reviewer since 1999 to the present.

17             JUDGE ROBINSON:  Mr. Alarid, I don't think we need all of this.

18     It's in the record.  Now take her to the evidence that you have brought

19     her here to give.

20             MR. ALARID:  Yes, Your Honour.

21        Q.   All right.  You've been asked to provide some analysis and

22     ultimately some opinions surrounding a Mr. Mitar Vasiljevic, and

23     specifically what were you given to review for your analysis?

24        A.   I was given the transcripts of October 23rd, 2001; October 25th,

25     2001; October 26th; 2001; November 12th, 2001; November 13th; 2001; and I

Page 5851

 1     read those transcripts and interviews.

 2        Q.   Okay.  And that was before you prepared a summary report that was

 3     tendered to the Court?

 4        A.   That's right.

 5        Q.   Okay.  And --

 6             MR. ALARID:  Private session, Your Honour.

 7             JUDGE ROBINSON:  Yes.

 8             MR. ALARID:

 9        Q.   And since --

10                           [Private session]

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 5852











11  Page 5852 redacted. Private session.















Page 5853

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  We're in open session.

 4             MR. ALARID:

 5        Q.   Now, with regards to Mr. Vasiljevic and your review of the

 6     materials specifically related to his admissions of alcohol consumption

 7     and habits of consumption, were you -- let's focus you first on possible

 8     or probable blood alcohol levels of an individual similarly situated as

 9     Mr. Vasiljevic.  And do you have some analysis to give the Court?

10        A.   Yes, I do.

11        Q.   And tell the Court -- take them through your analysis step by

12     step, and there's an ELMO there, and I know you've probably done some

13     calculations there.  If you want to put them on the ELMO at all so the

14     Court can see, we can do that as well.

15        A.   Well, they look like a chicken walked across -- they're just

16     numbers and -- so I'll probably be better off just reading them and

17     articulating them.

18             MR. WEBER:  Your Honours, sorry to interrupt again, but much like

19     the curriculum vitae, if the Prosecution could just be provided with a

20     copy of this, we have not received that before, the notes.

21             JUDGE ROBINSON:  Yes, that's to be done.

22             MR. ALARID:  Thank you.

23        Q.   First things first, take us through your analysis, and what do

24     you think about the information provided by Mr. Vasiljevic?

25   (redacted)

Page 5854

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)  If we could just have

 9     that redacted.  We're in open session.  It's line 56 -- page 56, line 5.

10             JUDGE ROBINSON:  Yes.

11             MR. ALARID:  Thank you.

12        Q.   And just for purposes of analysis, would you please give -- just

13     using it as a range, could we used both a 750-millilitre consumption and

14     also a 1-litre consumption?

15        A.   Certainly.

16        Q.   And what assumptions did you make with regards to Mr. Vasiljevic

17     in terms of his size?

18        A.   I assumed that he was 180 pounds, and then I did a standard error

19     around that of 160 to 190, just to -- for purposes of calculation.

20        Q.   So to clarify, we're using the weight and measure of pounds, and

21     you used the range of 160 pounds to 190 pounds?

22        A.   Mm-hmm.

23        Q.   Okay.  Please go ahead with your analysis.

24        A.   If his drinking pattern is as he described it, it sounds as if he

25     were trying to achieve a certain blood alcohol level that achieved -- did

Page 5855

 1     what he wanted it to do.  Whatever he drank, for whatever purpose, it was

 2     to elicit a certain sense; and so people who are consuming any kind of

 3     drug will consume it to a point where it meets that desired need.  If he

 4     drank a litre a day throughout the day, his probable blood alcohol levels

 5     at any given time during the day would be .2 grams per decilitre, which

 6     is -- I don't know how it's reported here, but for driving it's 0.8

 7     percent is considered the legal limit, so .2 is considerably more than

 8     the legal limit, to give a sort of frame of reference.  If he drank

 9     heavily and took large doses, he could probably achieve a level of .5

10     grams per decilitre, which in most people would cause death, but if a

11     person has been drinking long enough, they have built up enough tolerance

12     that they would not succumb to such a high dose.

13        Q.   What are the likely physiological effects on a human being at .2

14     grams per deciliter?

15        A.   I suspect if this person had been drinking for a long period of

16     time, if you were to observe this person at .2, because of tolerance, the

17     motor skills and the ability to move through the world and do normal

18     functions would not be that evident.  The problem is that tolerance to

19     alcohol is developed at different rates for different functions, so the

20     tolerance for motor function develops quicker than the brain's tolerance

21     for the toxicity of alcohol, so that's one of the sort of insidious

22     dangers of alcohol consumption; heavy alcohol consumption is that you

23     appear to be functioning fairly normally, but the brain is still in the

24     throws of a toxic substance, and it is not developing that tolerance as

25     quickly.

Page 5856

 1        Q.   Why is there that difference?

 2        A.   It's -- well, that difference exists for all drugs because

 3     different organic systems in the body respond to drugs in a different

 4     way, and of all of the systems in the body, the most vulnerable to drug

 5     insult is the brain because it has the least protection.  It's just cells

 6     without any fat tissue, without any muscle tissue.  It's just completely

 7     open cells, and the only thing protecting the brain is the blood-brain

 8     barrier, and alcohol gets through the blood-brain barrier with absolute

 9     ease.  There's nothing about it that protects the brain.

10        Q.   And what might a -- just using that middle range of .2 grams for

11     decilitre, what effect might that have on the brain?

12        A.   If it's done constantly, it's going to cause irreversible brain

13     damage, particularly in the frontal lobe.

14        Q.   Why is that?

15        A.   Well, I earlier mentioned the fact that alcohol is a toxic

16     substance as well as the metabolites creating free radicals, and so those

17     free radicals are going to interact with cell membranes and compromise

18     the integrity of the individual neurons in the brain.  The other is that

19     when they stop drinking, there is a rebound effect and the GABA system

20     that had previously been stimulated by the presence of alcohol is all of

21     a sudden under-stimulated which upsets the balance in the brain and

22     allows excitatory amino acids, like glutamate to prevail, and when they

23     are overactive, then the consequence is neuronal damage from

24     excitotoxicity.

25        Q.   And what kind of side effects come from this neuronal damage?

Page 5857

 1        A.   Well, again, the ability to plan, reason, problem-solve, and then

 2     short-term memory and long-term memory suffers.

 3        Q.   Why are all these abilities and/or functions focussed in the

 4     frontal cortex?

 5        A.   Well, the frontal cortex is considered the sort of executive area

 6     of the brain, and so that the rest of the brain kind of responds to

 7     external sensory stimuli by doing what they're supposed to do; but

 8     ultimately the frontal lobe says don't run because if you run that lion

 9     will chase you.  So you have this executive that keeps the rest of the

10     brain informed, controls it, controls impulses, emotions and so it's what

11     makes us human.

12             THE INTERPRETER:  Could the witness kindly speak slower when

13     she's using medical terms, et cetera.  Thank you.

14             THE WITNESS:  Yes.

15             MR. ALARID:

16        Q.   And with regards to impulse controls and emotional issues, what

17     impacts might some brain damage from prolonged alcohol use have on on an

18     individual?

19        A.   Well, it --

20             JUDGE ROBINSON:  I'm sorry.  I should bring to your attention

21     that the interpreter has asked you to speak more slowly.

22             THE WITNESS:  Yes.  Could you repeat the question, please?

23             MR. ALARID:

24        Q.   Just in terms of executive functionings specifically relating to

25     impulse controls and emotions, what kind of side effects might you expect

Page 5858

 1     with someone with this chronic alcohol use and subsequent brain damage?

 2        A.   Okay.  The impulses are sort of generated in an area of the brain

 3     called the limbic system, and the frontal lobe, or the executive system

 4     exerts inhibitory control over the limbic system; and if the frontal lobe

 5     function is compromised or in some way reduced by degeneration, then the

 6     ability of the person to control his or her impulses is also impaired.

 7        Q.   And relate -- relating back to an earlier comment you made as to

 8     teaching your students about aggression and alcohol, tell us about that.

 9        A.   Well, the interest at least among my students is the cause of

10     spousal abuse and why does alcohol consumption -- why is it so strongly

11     associated with alcohol -- or, I'm sorry, spousal abuse, and so we're

12     conducting research right now into what it is about alcohol consumption

13     that causes people to become aggressive, and then specifically, we're

14     interested in spousal abuse.

15        Q.   Is there any statistical data on the correlative effects between

16     aggression and alcohol consumption?

17        A.   There is a vast amount of data on that, and what we're interested

18     in is displaced aggression, which is less studied, and displaced

19     aggression is -- say, for instance, a driver cuts me off and irritates me

20     I can't retaliate against that driver, but I might go home and retaliate

21     against a family member.  If I've been drinking, it enhances that

22     likelihood of that displaced aggression occurring.

23        Q.   Could other factors such as experiencing a death in one's family

24     set off displaced aggression?

25             MR. WEBER:  Objection, Your Honours.  This is not contained

Page 5859

 1     within the noticed opinions that are provided within this expert's

 2     report.

 3             JUDGE ROBINSON:  I'm sorry.  Could you elaborate on that?

 4             MR. WEBER:  The question as posed a going into psychological

 5     experience in one's familiar.  This witness was not called here today nor

 6     did she provide any opinions that relate to any type of emotional

 7     difficulties or matters that relate to her area of psychology in her

 8     report.  Her report merely indicates the relationship between the effects

 9     of chronic alcoholism on Mitar Vasiljevic, so this is outside the scope

10     of her report and the noticed opinions to the Prosecution.

11             MR. ALARID:  My response to that, Your Honour, is simple, is I'm

12     not an expert, and oftentimes when an expert's on, they say something

13     that I think needs appropriate follow-through.  I think in this

14     particular case, there is evidence that Mr. Vasiljevic experienced a

15     funeral the day before the Drina River of his nephew -- or his first

16     cousin, I think it was, if I misspoke.  And that combined with admissions

17     of alcohol consumption, it seems to be relevant.  That's why I followed

18     up on it, but I hadn't thought about it until today, and I'm really

19     posing the question to Ms. LaGrange -- Dr. LaGrange today for the first

20     time.

21                           [Trial Chamber confers]

22             JUDGE ROBINSON:  Yes.  We rule that the witness can answer the

23     question.

24             THE WITNESS:  Repeat it just to make sure that I ...

25             MR. ALARID:

Page 5860

 1        Q.   Well, there's evidence that Mr. Vasiljevic the day before -- an

 2     incident at the Drina River where he admitted that he was there and there

 3     was a killing, he had been to the funeral of his nephew who was allegedly

 4     killed in battle with enemy forces.  And so along those lines, is that

 5     the kind of instigator, if you would, for displaced anger that might come

 6     into play given chronic alcohol consumption?

 7        A.   That's precisely the example.  I mean, we're using a much less

 8     profound provocation, but that's certainly within sight that kind of

 9     displaced aggression.

10        Q.   And do you talk about displaced aggression while under the

11     influence of alcohol or just after a long-term effects of alcohol?

12        A.   All of the studies that I've read and the studies that we are

13     doing is when they are actually under the effects of alcohol.

14        Q.   And would you consider being under the effects of five cognacs

15     under the effects of alcohol?

16        A.   I'd consider one beer sufficient.

17        Q.   And is there any statistical data regarding increased instances

18     of displaced aggression while under the influence of one beer to more?

19        A.   There is a positive dose response curve, so the more that is

20     consumed, the more likely it is to have occurred.

21        Q.   Now, specifically focussing on memory impairment, tell us about

22     the differences or potential effects on memory of long-term chronic as

23     well as acute consumption of alcohol?

24        A.   Well, acute consumption of alcohol, if it's heavy, will certainly

25     impair short-term memory during the time the person was under the

Page 5861

 1     influence of alcohol.  In fact, that's what black-outs are, if a person

 2     has achieved a particularly high level of alcohol, they might continue to

 3     function fairly normally and have no memory of it the very next day,

 4     that's short-term memory.

 5        Q.   What are the ranges -- is there any statistical data of when or

 6     what levels people begin to experience black-outs, although I know there

 7     could be some correlative effects on their chronic use to that?

 8        A.   Yes.  It would depend on how tolerant the individual were to the

 9     alcohol itself, so if a person were alcohol-naive and then drank a bottle

10     of wine, that person might indeed have difficulty remembering the last

11     few drinks of that evening; whereas someone who was a chronic alcoholic

12     would take considerably more alcohol to experience a similar kind of

13     black-out.

14        Q.   Now, can black-outs be partial as well as complete, i.e., you

15     remember some details but not all details versus not remembering

16     anything?

17        A.   Well, they are on a continuum.  So if someone --  say you ask a

18     person about what happened during this time-period when he or she was

19     under the influence of alcohol --

20        Q.   Like remember last night at the party.

21        A.   Right.  The person would say, I don't remember anything, and then

22     if you prompted that person with particular details, then they would be

23     able to retrieve some but certainly not all of what happened.

24        Q.   And what about memory impairment in intoxicated non-alcoholics?

25        A.   Well, it occurs there as well.  It's just not as profound, nor is

Page 5862

 1     it as long-lasting because obviously there has been no real damage to the

 2     brain.

 3        Q.   Now, assuming someone is already under the influence of brain

 4     damage, i.e. the brain damage has become organic and it is chronic in

 5     nature, is there any effects on memory even outside the consumption of

 6     alcohol?

 7        A.   At a certain point, a threshold is reached where compensatory

 8     mechanisms for laying down memories and recalling them does become

 9     compromised.  You know, it's not an absolute threshold.  It's an

10     individual threshold, but at some point when the damage becomes

11     sufficient, then that person will no longer be able to retrieve all the

12     memories that were laid down.

13        Q.   Now -- and do we have a number for that report?  I'm sorry.  I

14     was on the wrong channel.  I didn't realise you had your report in front

15     of you.  Now, tell us about -- let's go to the next page, please.  And

16     tell us about brain damage caused by chronic heavy consumption and would

17     somebody who historically -- or gave a history, rather, similar to

18     Mitar Vasiljevic experience some brain damage caused by chronic

19     consumption?

20             MR. WEBER:  Objection --

21             JUDGE ROBINSON:  Yes, Mr. Weber.

22             MR. WEBER:  -- to the form of the question.  This witness

23     indicated that they reviewed five days of transcript.  I believe the way

24     it's phrased, that gave history, this witness is being clear that they

25     did not ever personally interview.

Page 5863

 1             MR. ALARID:  Okay.  True.  That's true, Your Honour, and I'll

 2     qualify -- I'll rephrase it.

 3             JUDGE ROBINSON:  Rephrase it.

 4             MR. ALARID:  Yes.

 5        Q.   Making the assumption that you were taking a history of a --

 6     Mr. Vasiljevic, and he gave identical answers regarding his alcohol

 7     consumption as he did in the testimony you reviewed and the interviews

 8     that you reviewed, what would you expect?

 9        A.   In terms of --

10        Q.   Brain damage.

11        A.   Okay.  I would expect that -- it looks as if he were consuming

12     this alcohol for years, and of the two drinking patterns that I mentioned

13     earlier, that of steady, daily consumption versus binge consumption,

14     where very, very high blood alcohol levels are achieved; the secondary

15     pattern, the binge pattern is far more likely to result in brain damage

16     because of the sort of initial insult of such high levels of alcohol.

17             So what is likely to occur in the long run is that there is some

18     brain damage to the frontal lobe and then particularly -- in particularly

19     the circuit on the frontal lobe that connects to the hippocampus.  And

20     the hippocampus is the area of the brain that takes information that's

21     coming in the realtime, lays it down in the form of short-term memory,

22     and then the transfer to long-term memory occurs in an interaction with

23     the frontal lobe.  And so those are two separate processes, and both

24     of which would become eventually impaired by long-term alcohol

25     consumption.

Page 5864

 1        Q.   Now, with the chronic alcoholic that's able to achieve very high

 2     blood alcohol levels, like you mentioned .5 grams per decilitre that

 3     would normally be fatal in a naive drinker, how -- strike that.  What is

 4     the impact of the brain on extremely high alcohol levels such as that

 5     achieved between .3 and .5 grams per decilitre?

 6        A.   When alcoholics consume a lot of alcohol, the alcohol we talked

 7     about earlier, ingests, distribution, absorption, and metabolization,

 8     alcohol is metabolized by enzymes in the liver, and it is done so by a

 9     mechanism called zero-order kinetics, which means that the alcohol is

10     metabolized at a constant rate regardless of how much alcohol you ingest.

11             Alcoholics, though, ingest way more than what that system can

12     handle, and so there's an alternative metabolization system in the liver,

13     called the CYP450 2E1 system that operates on first order kinetics, which

14     means that it is concentration-dependent in terms of how much it

15     metabolizes.

16             The issue here is that when you kick in that 2E1 system, the

17     by-products of that metabolic process are very, very toxic.  They are the

18     free radicals that I mentioned before that will be binding to the lipid

19     membrane of the cells in the brain, and when they bind to those, when

20     they -- they have an extra electron or a few electrons which makes them

21     want to bind with molecules in the lipids in the brain.  When they do

22     that, that converts that membrane into an entirely different substance,

23     and when it is a different substance, it can no longer function normally

24     and allow the brain to process information normally.  And if that

25     disruption occurs time and time again, that cell dies.

Page 5865

 1             MR. ALARID:  I pass the witness, Your Honour.

 2                           [Trial Chamber confers]

 3             MR. ALARID:  And Your Honour, I would tender the report of

 4     Dr. LaGrange that's on the screen as the next available 1D number.

 5             MR. WEBER:  I have no objection to the report being marked for

 6     identification at this time subject to cross-examine.

 7             JUDGE ROBINSON:  Yes.

 8             THE REGISTRAR:  Exhibit 1D182 marked for identification,

 9     Your Honours.

10             JUDGE ROBINSON:  Mr. Weber, you'll now cross-examine.

11             MR. WEBER:  Thank you, Your Honour.

12                           Cross-examination by Mr. Weber:

13        Q.   Good morning, Dr. LaGrange.

14        A.   Good morning.

15        Q.   My name is Adam Weber from the Office of the Prosecutor.

16     Dr. LaGrange, you were provided with materials to review in this case;

17     correct?

18        A.   That's correct.

19             THE INTERPRETER:  Please make pauses between questions and

20     answers.  Please make pauses between questions and answers.  Thank you.

21             JUDGE ROBINSON:  Already, you're being asked by the interpreter

22     to observe the pause between question and answer.  You speak particularly

23     fast, Mr. Weber.

24             MR. WEBER:  Thank you, Your Honour.

25        Q.   In forming your opinions, is it important to review all available

Page 5866

 1     material?

 2        A.   It is.

 3        Q.   If you do not have all of the materials, your opinions would be

 4     incomplete because not all the relevant information would be incorporated

 5     into your conclusions.

 6        A.   If I did not have them, that would be true.

 7        Q.   With the material -- with the material that is provided to you,

 8     it is important to analyse all of the information that either supports or

 9     refutes a particular conclusion.

10        A.   Yes.

11        Q.   If information refutes a particular conclusion, it is important

12     to acknowledge this information and either reconcile it or explain it.

13        A.   Yes.

14        Q.   In this case, the Prosecution was provided with a bunch of

15     materials that were provided to you.  They included many additional

16     materials than the ones that you indicated here today.  Is it correct,

17     then, that you were not provided with the transcript of an interview with

18     Mitar Vasiljevic from the 16th and 17th of November, 2000; is that

19     correct?

20        A.   I wish I had brought them all with me because I did bring them to

21     the hotel room.  I might not have mentioned them in the report, but I

22     really don't remember whether I did or I did not.  I know that I did not

23     mention them in the report.

24        Q.   Okay.  Well, you do not, then, rely as far as you recall on any

25     of the statements on those two days in those interview transcripts?

Page 5867

 1        A.   Not that I recall.

 2        Q.   You're providing an opinion today that Mr. Vasiljevic's memory

 3     may have been impaired on the date of 7 June 1992 due to alcohol

 4     consumption?

 5        A.   I am.

 6        Q.   However, would it affect your opinion if you did not include the

 7     direct statement by Mr. Vasiljevic on page 55, lines 9 through 11, of the

 8     17th of November, 2000, interview transcript in which he was asked the

 9     following question and gave the following answer:

10             "Q.  At the time of the river, you weren't drunk with alcohol,

11     were you?

12             "A.  No, I was not drunk at that time."

13             You did not include that statement as part of your report;

14     correct?

15        A.   I did not.

16        Q.   And you also did not include that statement as part of your

17     testimony here today?

18        A.   I did not.

19             MR. WEBER:  Your Honour, just for the transcript reference, it

20     was exhibit discussed as clip 126 from 65 ter 20.

21             JUDGE ROBINSON:  Had you taken account of that statement, would

22     it have affected your opinion?

23             THE WITNESS:  It would not.

24             MR. WEBER:  May I continue, Your Honour?

25             JUDGE ROBINSON:  Yes.

Page 5868

 1             MR. WEBER:

 2        Q.   You also, then, not aware -- actually, back up.  You didn't

 3     review any videos of Mr. Vasiljevic in this case; is that correct?

 4        A.   I did not.

 5        Q.   You were, then, not aware of the 19-minute-long narrative

 6     provided by Mr. Vasiljevic in which he details the events of 7 June 1992

 7     to include in your report?

 8        A.   I was not.

 9        Q.   Now, you've testified that you relied upon five days of testimony

10     in the trial of Mitar Vasiljevic.  Based on the statements in this

11     testimony, you believe that Mr. Vasiljevic started drinking beverages in

12     the early morning and continued throughout the day into the evening; is

13     that correct?

14        A.   That's what he said, yes.

15        Q.   When you state "into the evening," do you refer after -- do you

16     mean after 5.00 in the -- p.m.?

17        A.   I do.

18        Q.   Dr. LaGrange, you do not reference in your report that

19     Mr. Vasiljevic stated that he no longer had a bottle of alcohol with him

20     in the afternoon of 7 June 1992 when they spoke to Stanko Pecikoza; is

21     that correct?

22        A.   That's correct.

23        Q.   And because you did not review the -- or you do not recall the

24     interview transcripts of the 16th and 17th of November, you were also not

25     aware of Mr. Vasiljevic's statement that he went to the hotel Vilina Vlas

Page 5869

 1     at 4.00 in the afternoon that day after meeting Stanko Pecikoza?

 2        A.   That's correct.

 3        Q.   Those things are not incorporated into your report?

 4        A.   They are not.

 5             MR. ALARID:  And, Your Honour, regardless of Dr. LaGrange's

 6     ability to recall all she reviewed, I would point to her report that is

 7     in front of you that includes the November statement, November 2001

 8     statement.

 9             MR. WEBER:

10        Q.   And for clarification, Doctor, I'm refer to November 2000

11     statement.  Do you understand that?

12        A.   I do.

13        Q.   And the testimony that you provided the last couple of minutes

14     relates to that November 2000 statement; correct?

15        A.   In response to your questions that --

16        Q.   Yes.

17        A.   Okay.  Yes.

18        Q.   These statements would have been important to your calculation of

19     Mr. Vasiljevic's blood alcohol concentration at the time of the

20     Drina River; weren't they?

21        A.   The reports of the blood alcohol concentration were not for a

22     specific time.  They were calculated to indicate what he was trying to

23     achieve on a daily basis to actually be able to extrapolate what those

24     values were at a particular hour of the day would be pretty difficult; so

25     I am saying he was achieving a steady state blood alcohol level of

Page 5870

 1     probably .2, and I was not making any effort to tie to it a particular

 2     event or a particular time.  I'm just saying that as a matter of daily

 3     consumption, that is what he was trying to do.

 4        Q.   Just so we're clear.  I understand what you're saying.

 5             JUDGE ROBINSON:  Tell us why you did not take account of these

 6     statements to which the Prosecutor has referred.

 7             THE WITNESS:  I don't believe that I had those transcripts.  I

 8     think I don't have them because if it were that specific, I probably

 9     didn't.  However, it wouldn't have affected what I just reported because

10     I wasn't attempting to calculate a specific time and a specific date.  I

11     was trying to just say that this person is a chronic alcoholic would

12     titrate his alcohol consumption in order to achieve a steady-state blood

13     alcohol level at all times.

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20             JUDGE ROBINSON:  You have re-examination.  Remember that.

21             But can you tell us what you mean by titrating his alcohol

22     consumption to achieve a steady blood alcohol level at all times?

23             THE WITNESS:  Yes.  I don't know if you've notice had the when

24     people smoke, now that you can't smoke inside, that they will go outside

25     at a very predictable time, and that dose that they are taking in is

Page 5871

 1     called titrating.  They are adjusting the dose of nicotine to a level

 2     that keeps their system comfortable.  And so alcoholics do exactly the

 3     same thing.  If they're really, really chronic alcoholics, they become

 4     very uncomfortable if they're blood alcohol levels goes below a certain

 5     level.  They go into withdrawal.  So that titration is constant dosing or

 6     dosing to maintain a constant level of alcohol in the blood.

 7             JUDGE ROBINSON:  Thank you.

 8             Judge David.

 9             JUDGE DAVID:  Dr. LaGrange, is there any relevance of the

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15             THE WITNESS:  If his analysis were of his behavior in terms of

16     aggression or violence, yes, it would have been enhanced.  If it is only

17     restricted to memory impairment, no, because that's not likely to be

18     affected by personality.

19             JUDGE DAVID:  So for instance, a chronic depression state versus

20     a non-chronic depressive state will have the same consequences on alcohol

21     consumption?

22             THE WITNESS:  It depends on whether the chronic state preceded

23     the development of the alcohol problem or the alcohol problem caused the

24     chronic because there are no non-depressed alcoholics because it causes

25     depression.

Page 5872

 1             JUDGE DAVID:  Thank you very much.

 2             MR. WEBER:  May I proceed?

 3             JUDGE ROBINSON:  Yes, Mr. Weber.

 4             MR. WEBER:

 5        Q.   You're aware based on the review of the transcripts that

 6     Mitar Vasiljevic described him as a benevolent person while under the

 7     influence of alcohol; correct?

 8        A.   Yes.

 9        Q.   Are you aware that Mitar Vasiljevic testified for eight days of

10     trial between 2001 and 2002?

11        A.   No.

12        Q.   You're not aware of the three days in which he also testified in

13     2002?

14        A.   I believe not.

15        Q.   According to the materials that were provided to us, it was

16     indicated that you were provided with the trial judgement from the case

17     of Prosecutor versus Vasiljevic; is that correct?

18        A.   No, it is not.

19        Q.   You are then not aware of testimony that was received in that

20     case from a Dr. Folnegovic-Smalc; correct?

21        A.   No.

22        Q.   You're not aware, then, that Mr. Vasiljevic was actually

23     personally interviewed by a professional in your field?

24        A.   No.

25        Q.   You would agree that an expert in your field who actually

Page 5873

 1     personally met and interviewed Mr. Vasiljevic would be in a better

 2     position to evaluate any physical signs of chronic alcoholism that you

 3     are describing here today?

 4             MR. ALARID:  And I would object and ask for a clarification as to

 5     field.  Was he interviewed by a psychopharmacologist or a clinical

 6     psychologist?

 7             MR. WEBER:  I'll be very precise about it.

 8                           [Trial Chamber confers]

 9             JUDGE ROBINSON:  Yes.  Answer the question.

10             MR. WEBER:

11        Q.   Just to be clear, the doctor that interviewed Mr. Vasiljevic was

12     a forensic psychiatrist, so slightly different field than yours.  But you

13     would agree that a forensic psychiatrist that personally interviewed

14     Mr. Vasiljevic would be able to observe better the physical signs of the

15     chronic alcoholism than what you did in this case?

16        A.   Could you define physical signs, please?

17        Q.   Well, there would be physical signs of detrimental effects of

18     chronic alcoholism; is that correct?

19        A.   Not necessarily unless he intervened with some kind of cognitive

20     testing or memory testing, which I don't know.

21        Q.   Well, Dr. Folnegovic-Smalc did perform cognitive testing on

22     Mr. Vasiljevic.  You would agree that Dr. Folnegovic-Smalc was in better

23     position based on the administration of the cognitive testing to

24     individually assess Mr. Vasiljevic's cognitive abilities than the

25     materials that you were provided with in this case?

Page 5874

 1        A.   Yes.  If he had the opportunity to test him, sure.

 2        Q.   If Mr. Vasiljevic successfully passed all of those test, you are

 3     not aware of that?

 4        A.   No.

 5        Q.   Would that affect your opinion here today?

 6        A.   Not unless I were allowed to administer the same tests.

 7        Q.   So you would not accept the opinion of a highly qualified

 8     forensic psychiatrist in the field unless you personally saw it yourself?

 9        A.   That's true.

10        Q.   You would agree in terms of the opinion you're providing today

11     that it would have been important for you to review that prior to

12     providing your testimony?

13        A.   Yes.

14        Q.   Do you even know what Mr. Vasiljevic looks like?

15        A.   I do not.

16        Q.   You agree that a Trial Chamber is capable of determining the

17     ability of a witness to recall events --

18             MR. ALARID:  Objection, calls for a legal conclusion.

19             JUDGE ROBINSON:  Yes, please ask another question, Mr. Weber.

20             MR. WEBER:  Okay.

21        Q.   Well, Doctor, here in the courtroom you would agree that the

22     Chamber has the ability to --

23             MR. ALARID:  Same objection.

24             MR. WEBER:

25        Q.   -- see witnesses that appear before them?

Page 5875

 1        A.   Could you repeat that?  I ...

 2        Q.   Here today we're in court; is that correct?

 3        A.   Yes.

 4        Q.   You're able to see the judges?

 5             MR. ALARID:  Objection, relevance, calls for legal conclusion.

 6             JUDGE ROBINSON:  Just a minute.  I imagine he's leading up to

 7     something.  What is the concluding question?

 8             MR. WEBER:  Your Honour, it's the --

 9             JUDGE ROBINSON:  I mean, it's meritless to ask if we can see a

10     witness.  The answer is obvious.

11             MR. WEBER:  The issue in respect to any expert that's being

12     called is whether or not they materially assist the Chamber in the

13     evaluation of the matters that are at hand.  This witness has indicated

14     that they never reviewed the video, didn't review a lot of other

15     materials that were available in this case.  The Chamber has an

16     extraordinary amount of material that's in front of it in this case that

17     relates to Mr. Vasiljevic.  It would be the Prosecution's position that

18     the Chamber is actually in a substantially better position to --

19             JUDGE ROBINSON:  That's not a matter for her.

20             MR. WEBER:  Well, you know, but it goes to the weight that should

21     be provide to her testimony.  The fact that --

22             JUDGE ROBINSON:  It doesn't matter whether she agrees or not.

23     We'll have to make up our own minds.

24             MR. WEBER:  Okay.

25        Q.   You're not aware, then, that the trial judgement from the

Page 5876

 1     Vasiljevic case found that Mr. Vasiljevic did not suffer from diminished

 2     mental capacity?

 3        A.   No, I'm not aware of that.

 4        Q.   You are also, then, not aware that there are two other

 5     eye-witnesses that were present on the Drina River on the 7th of June,

 6     1992?

 7        A.   No, I'm not.

 8        Q.   Okay.

 9             MR. ALARID:  And object as to relevance.  She's not -- yeah,

10     she's not an alibi witness, Your Honour; and she's -- beyond the scope of

11     her opinion and direct examination as well.

12             JUDGE ROBINSON:  Yes.  Please move on.

13             MR. WEBER:  Judge, it is relevant as to whether or not there were

14     people that were present that would have had the opportunity to make

15     observations of Mr. Vasiljevic as to whether he was intoxicated or not on

16     a particular day, a day that the accused is charged with.

17             JUDGE ROBINSON:  I mean, if she's not so aware what -- what

18     makes --

19             MR. WEBER:  Whether or not it would have been important for her

20     to review those materials to determine whether or not those witnesses

21     observed any signs of intoxication.

22             MR. ALARID:  And I would -- I mean, I -- the record's so big I'm

23     not sure, but I don't believe either witness ever commented in direct

24     questioning as to --

25             MR. WEBER:  Judge, that's not my question [Overlapping speakers].

Page 5877

 1             JUDGE ROBINSON:  Would you have been -- would you have been

 2     helped in your assessment had you been aware of two other witnesses who

 3     were present and who would have had information?

 4             THE WITNESS:  I believe that any information would have been

 5     helpful.

 6             JUDGE ROBINSON:  Yes.

 7             MR. WEBER:

 8        Q.   Doctor, there would be noticeable signs to a trained psychologist

 9     if an individual was unable to remember an event due to alcohol

10     consumption; is that correct?

11        A.   You would think so.

12        Q.   Okay.  The individual not be able to recall the events in a

13     logical, chronological sequence?

14        A.   Well, unless they confabulated?

15        Q.   What do you mean by confabulation?

16        A.   When people have endured some kind of brain injury or assault,

17     they try to cover it by attempting to articulate sentences that sound as

18     if they make sense and they are logical; and some people become very good

19     at confabulation, and you can't distinguish that they're making it up

20     from what they're not -- isn't true.

21        Q.   That is something that a trained psychiatrist could perform

22     cognitive tests on to determine; correct?

23        A.   Confabulation?  I would suspect so.  I don't know if it was

24     included in those tests, but I'm sure you could.

25        Q.   I'm just asking in the abstract.  That is something that can be

Page 5878

 1     tested for?

 2        A.   Sure.

 3        Q.   Then the individual would have trouble describing the temporal or

 4     spacial relationships that occurred during an event; is that correct?

 5        A.   They would describe them.  They might not be accurate.

 6        Q.   For example, would a person not be able to precisely recall where

 7     individuals were necessarily standing in relation to one another?

 8        A.   Predicated on whether or not they had brain damage?  I'm kind of

 9     lost the train of the --

10        Q.   If someone's a -- there's really two circumstances that we're

11     talking about here today; is that correct?

12        A.   All right.

13        Q.   The first circumstance is whether or not the individual is a

14     chronic alcoholic and thereby has brain damage --

15        A.   Yes.

16        Q.   -- and a diminish capacity due to that; is that correct?

17        A.   That's correct.

18        Q.   The second scenario we're talking about today is whether or not

19     at the time of a particular event, they have diminished capacity due to

20     the consumption of alcohol; is that correct?

21        A.   That's correct.

22        Q.   So these questions relate to both scenarios, and please

23     distinguish whether there's a difference between the two.

24             MR. ALARID:  Your Honour, I would object to the context of the

25     question and based on this analysis.  Mr. Weber used in cross-examination

Page 5879

 1     the trial finding of no finding of diminished capacity.  I think from a

 2     legally question, diminished capacity has very different meanings than

 3     from a diagnosis perspective of an in-the-moment analysis; and so I think

 4     there needs to be a clarification as to diminished capacity from a legal

 5     definition versus from a diminished capacity, let's say, from a

 6     psychologist or a psychiatrist's position.  They may have very different

 7     context.

 8             MR. WEBER:  Your Honours --

 9             JUDGE ROBINSON:  That's a question you can ask her in

10     re-examination.  You can clarify that with her in re-examination.

11             Judge Van Den Wyngaert.

12             JUDGE VAN DEN WYNGAERT:  I have a question which arose from

13     something you just said about lacunar amnesia slots that are filled up

14     with confabulations.  Is this something that you could, in a concrete

15     case, find without seeing the person?  Without having the clinical

16     examination of the person, is this something you could conclude in the

17     abstract, or would you have to see the person to reach that conclusion?

18             THE WITNESS:  You could mention it as a possibility.  You could

19     not conclude anything unless you had concrete evidence right in front of

20     you.

21             JUDGE VAN DEN WYNGAERT:  Thank you.

22             JUDGE DAVID: [Microphone not activated]

23             THE INTERPRETER:  Microphone, Your Honour, please.

24             JUDGE DAVID:  Dr. LaGrange, in your report, page number 2,

25     paragraph 4, you said:

Page 5880

 1             "One possible explanation for this is the phenomenon known as

 2     state-dependent learning.  That is a participants acquired the memories

 3     who are sober, but they were asked to recall them when intoxicated.  In

 4     Mr. Vasiljevic's case, the reverse is likely to have occurred.  He was

 5     intoxicated at the time of the incident.  He is sober when asked to

 6     recall the details of the event."

 7             Could you elaborate even further your paragraph?

 8             THE WITNESS:  Yes, because there's a very common phenomenon that

 9     spouses or children of alcoholics have observed, and that is that some

10     alcoholics will hide their bottles because they know that the family

11     members will try to take them away, and if they hid the bottle of alcohol

12     when they're sober, they can't find it when they're drunk.  If they hide

13     the bottle of alcohol when they're drunk, they can't find it when they're

14     sober.  So that kind of memory is dependent upon the state at the time

15     that the memory was laid down, and so if they were in a state of

16     inebriation to recall that memory, they have to also be in a state of

17     inebriation.

18             JUDGE DAVID:  Would there be any circumstances by which one of

19     these persons might deliberately try to ignore and episode, what you

20     called confabulating while really knowing it?

21             THE WITNESS:  I'm sure that could be faked, yes.

22             JUDGE DAVID:  So the hypothesis of confabulating does not

23     interfere with the functioning of these mechanism?  It could be other

24     two?

25             THE WITNESS:  Absolutely.

Page 5881

 1             MR. WEBER:

 2        Q.   Dr. LaGrange, you're providing an opinion here today as to the

 3     general levels of alcohol consumption by Mr. Vasiljevic; is that correct?

 4        A.   Yes.

 5        Q.   None of your opinion today has to do with Mr. Vasiljevic's

 6     specific blood alcohol concentration on the 7th of June, 1992?

 7        A.   It did not.

 8        Q.   You can not quantify his exact blood alcohol level concentration

 9     for the date 7th of June, 1992?

10        A.   I cannot.

11        Q.   I just want to go back to some of the other things that an

12     individual might have trouble explaining if they have diminished capacity

13     due to alcohol.  Would that person explain events with unexplained

14     periods or gaps in time?

15        A.   It's certainly possible.

16        Q.   Would the individual have the trouble describing actions of

17     others in detail?

18        A.   That's also very possible.

19        Q.   Would the individual have trouble recognising individuals for

20     whom they had never met prior to that event?

21        A.   So their only exposure to them was at that event but not any

22     exposure before then?

23        Q.   Correct.

24        A.   Yes.

25        Q.   You would agree that if an individual knows someone prior to an

Page 5882

 1     event, the effect of alcohol or the diminished capacity would have much

 2     less importance?

 3        A.   Yes, I would agree.

 4        Q.   And especially a circumstance if one of the persons you had known

 5     for 15 years?

 6        A.   Yes.

 7        Q.   And the other was the person was the person that that individual

 8     stood next to as the best man in their wedding?

 9        A.   Yes.

10        Q.   I just want to ask you a couple of questions about your

11     qualifications.  You've been accepted as an expert today in experimental

12     psychology, but as a psychologist, do you personally prescribe

13     medications?

14        A.   No.

15        Q.   And psychiatrists do have different training in relation to the

16     prescription of medications and knowing how they interrelate with the

17     human body; is that correct?

18        A.   That's correct.  However, in the state of New Mexico,

19     psychologists are able to prescribe.  I'm just not a clinical

20     psychologist.

21        Q.   You are not a forensic psychiatrist?

22        A.   No.

23        Q.   A forensic psychiatrist applies the field of psychologist to

24     legal issues, often for the purposes of offering expert testimony on

25     issues such as competency to stand trial and the relationship of a mental

Page 5883

 1     disorder to a crime; is that correct?

 2        A.   That's correct.

 3        Q.   You are not a toxicologist?

 4        A.   No.

 5        Q.   A toxicologist is an expert in the detection and calculation of

 6     poisons in the human body; is that correct?

 7        A.   That's correct.

 8        Q.   According to your current curriculum vitae, you have testified as

 9     an expert witness 16 times in the state courts of New Mexico; is that

10     correct?

11        A.   Yes.

12        Q.   In those 16 instances, you provided testimony in state-level

13     prosecutions of drug or alcohol cases; is that correct?

14        A.   That's correct.

15        Q.   You have never provided expert testimony in a homicide case

16     relating to the competency of an accused to stand trial?

17        A.   I have not.

18        Q.   You have never provided expert testimony in a homicide case

19     related to the inability of an eye-witness to recall a crime based on the

20     consumption of alcohol?

21        A.   No.

22        Q.   How many of those cases involved an individual accused of driving

23     under the influence of alcohol?

24        A.   All but two.

25        Q.   How many of those 16 cases involved misdemeanor charges?

Page 5884

 1        A.   I don't know.  I didn't -- I don't attend to the -- whether it's

 2     a felony or misdemeanor.  I don't know.

 3        Q.   As far as you're aware, some of them may have been misdemeanor

 4     cases?

 5        A.   Oh, certainly.

 6        Q.   In New Mexico, are felony cases prosecuted in the same building

 7     as misdemeanor cases?

 8        A.   You'd have to ask Mr. Alarid.

 9        Q.   As far as you're aware, you don't know the difference?

10        A.   I don't know.

11        Q.   In those cases that involve driving under the influence of

12     alcohol, were you called as a certified breath machine operator?

13        A.   No.

14        Q.   Then you have never testified to the calculation of a blood

15     alcohol concentration based on the use of one of those machines?

16        A.   Yes, I have been.

17        Q.   You have testified to that?

18        A.   I have.  Mm-hmm.

19        Q.   Okay.  Do you have a certificate as a certified breath

20     technician?

21        A.   Yes.

22        Q.   Okay.  Is that certificate current?

23        A.   Yes.

24        Q.   A breath technician relies on the calculation of the machine to

25     determine the blood alcohol concentration for an individual.

Page 5885

 1        A.   Yes.

 2             MR. ALARID:  Your Honour, I would object to this line of

 3     questioning based on relevance, outside the scope of the opinion, outside

 4     the scope of direct examination; and the witness has already testified

 5     she was not brought here to testify as to what Mr. Vasiljevic's actual

 6     breath score was at the time of the incident on the Drina.

 7             MR. WEBER:  Judge, they are providing a calculation as to blood

 8     alcohol concentration.  If she usually relies on a machine to calculate

 9     it for her as to herself, that's relevant.

10             JUDGE ROBINSON:  I agree it's relevant.  Let her answer the

11     question, and then we'll take the break for 20 minutes.

12             MR. WEBER:  Yes, Your Honour.

13             THE WITNESS:  Could you repeat the question?

14             MR. WEBER:

15        Q.   You rely on the machine to calculate an individual's blood

16     alcohol concentration; is that correct?

17        A.   Usually when I'm testifying, it is to introduce the variability

18     of the machine, and it's possible in accuracy, so I take the amount.  I

19     use a very complex equation to compute what I think the blood alcohol

20     should be, and then I attempt to correlate that with what the machine

21     found, so I don't use the machine.  The police officer or the arresting

22     officer uses the machine.  I do the calculations myself.

23        Q.   Okay.  Is that calculation either the Widmark formula or the US

24     Department of Transportation formula that is generally accepted as a

25     calculation for blood alcohol concentration in the United States?

Page 5886

 1        A.   Yes.  There's Widmark, but I use Watson because it takes into

 2     account total body water which the Widmark does not, so it's considered

 3     more accurate.

 4        Q.   Those -- the Watson test, that is not one of the two generally

 5     accepted formulas for the calculation of blood alcohol concentration in

 6     the United States, though; is that correct?

 7        A.   It's acceptable.  It's just more complex and more accurate.  It's

 8     fairly recent, 1992, and so when I do a report, I include the Widmark and

 9     the Watson and the Lewis in -- I include those three because then you get

10     a range of possible breath scores or blood alcohol scores.

11        Q.   Did you do that in this case?

12        A.   I did.

13        Q.   When did you provide that to the Defence?

14        A.   I did not.  I did it for my report.

15        Q.   So you had that available to you prior to the 16th of January; is

16     that correct?

17        A.   Yes.

18             MR. WEBER:  And Judge, if I could just ask one more question

19     before the break.

20             JUDGE ROBINSON:  Yes.

21             MR. WEBER:

22        Q.   You have never testified as an expert in psychology prior to

23     today.

24        A.   In clinical psychology or --

25        Q.   Any type of psychology.  You've never testified as an expert in

Page 5887

 1     that field prior to today.

 2        A.   You'll have to define it.  Because as a psychopharmacology,

 3     that's a sub-field of psychology, so I'm not sure what you mean.

 4        Q.   It's a very simple question, Doctor.  When you've gone to court

 5     on those 16 occasions, has the Court ever accepted you as an expert in

 6     the field of psychology?

 7        A.   Of psychopharmacology.

 8        Q.   So how many occasions have you been accepted as an expert in

 9     psychopharmacology?

10        A.   All but three because three were field sobriety tests.

11        Q.   When you say all but three, all those DUI cases you were accepted

12     as an expert as such?

13        A.   Yes.  Okay.

14             MR. WEBER:  Judge, we can take the break.

15             JUDGE ROBINSON:  Yes.  20 minutes.

16                           --- Recess taken at 12.18 p.m.

17                           --- On resuming at 12.39 p.m.

18             JUDGE ROBINSON:  Yes, Mr. Weber.

19             MR. WEBER:  Thank you, Your Honour.

20        Q.   Dr. LaGrange, I'd like to ask you some questions about your

21     reports specifically.  The first sentence of the first paragraph after

22     your report states that it's long been known --

23             THE INTERPRETER:  Microphone, please.

24             MR. WEBER:

25        Q.   Dr. LaGrange, I'd like to ask you about the first paragraph,

Page 5888

 1     first sentence of your report.  It states that:

 2             "It has long been known that high doses of alcohol having

 3     profound impact on memory."

 4             Is that correct?

 5        A.   That's correct.

 6        Q.   Is it not a more accurate psychological statement to state that

 7     when a person is under the influence of alcohol, it cannot be said that

 8     cognitive capacity is reduced by intoxication but that a person who has

 9     taken alcohol has reduced retention, which is an element of cognitive

10     functions?

11        A.   So you're saying that -- let me make sure I understand the

12     question, that it's not cognition that is impaired; it's the ability to

13     attend to that which is appropriate that is impaired?

14        Q.   At the time of intoxication, the person maintains whatever

15     cognitive capacity that they have at that time.  It's just that they have

16     reduced retention at that moment due to the consumption of alcohol.

17        A.   They have -- certainly.  They have reduced retentional skills, or

18     ability to allocate brain function to what is appropriate.  Their

19     cognition, although their basal ability at cognition is not impaired,

20     their cognitive function is slower than it would be were they not under

21     the influence.

22        Q.   So is it fair to say that a person who is intoxicated does not

23     have full attention capacity?

24        A.   Yes.

25        Q.   This would have an effect on quantitative capacity then of an

Page 5889

 1     individual to store information but have little effect, if any, on the

 2     qualitative aspects of the information that is remembered by that person.

 3     Is that correct?

 4        A.   The qualitative memory would also be affected.  In fact, we're

 5     doing a study right now on facial recognition, and that's based on

 6     qualitative evaluation of faces; so yes, quantitative probably more so

 7     than qualitative.

 8        Q.   Doctor, I said in that question would have little effect.  Is

 9     that a fair assessment of the diminished qualitative capacity of someone

10     who is intoxicated?

11        A.   I'm just thinking of studies where people who are intoxicated

12     aren't able to evaluate appropriately other people's facial expressions.

13     There are a number of studies out there about that, which to me is a kind

14     of qualitative aspect in terms of right hemisphere function and

15     recognising and threatening expression versus welcoming expression.  So

16     however you want to characterise that, that's an example -- I would

17     characterise that as qualitative.

18        Q.   You reference the Yuille study in your report; is that right?

19        A.   Yes, mm-hmm.

20        Q.   And that study found that there is little qualitative to an

21     individual being under the influence of alcohol in terms of their

22     diminished capacity.

23        A.   In terms of the paradigm of that particular study, and so when

24     I'm responding to your questions, I'm responding in terms of other

25     studies that had different methodology, different paradigms; and we're

Page 5890

 1     looking for different aspects of behavior and memory under the influence,

 2     but in that particular study, that is, indeed, the case.

 3        Q.   With respect to that study, that related specifically as to

 4     whether or not eye-witnesses to a crime had diminished capacity based on

 5     alcohol; is that correct?

 6        A.   That's right.  That is.

 7        Q.   And that is the only study that you reference in your report that

 8     relates to that specific topic?

 9        A.   That's right.

10        Q.   In your report, you reference three portions of Mr. Vasiljevic's

11     testimony in 2001; correct?

12        A.   Yes, mm-hmm.

13        Q.   The first two references in your report chronologically going

14     through them are general statements concerning Mr. Vasiljevic's drinking;

15     is that correct?

16        A.   Yes, that's correct.

17        Q.   According to your report, then, you cite a third statement.  Your

18     report states - this is in the very last sentence of the first paragraph:

19             "When Mr. Vasiljevic was asked if he had been drinking the day

20     of -- June 7th, 1992, he answer in the affirmative, indicating that he

21     'drank almost constantly.' " Is that what your report said?

22        A.   That's what it says.

23        Q.   You selected only three words from line 20 of that section of

24     Mr. Vasiljevic's testimony in support of your opinion; correct?

25        A.   That's correct.

Page 5891

 1        Q.   Let me read to you the full section from his testimony on that

 2     date, which is the 26th of October, 2001.  It's page 2131, lines 6

 3     through 21.  I quote:

 4             "Q.  Mr. Vasiljevic, you were able to appreciate that the crime

 5     that occurred on the 7th of June was wrong, weren't you?

 6             "A.  Yes, yes, I was.

 7             "Q.  Whatever problems you remember having with your alcoholism,

 8     it did not impede your ability to know that that was wrong, what

 9     happened; is that correct?

10             "A.  No, of course.  After all, they were people.  No, of course

11     it was wrong, even if you're totally drunk.  Of course.

12             "Q.  Just regarding how much alcohol or when you last had alcohol

13     at the time of the killings, when was the last time that you had a drink

14     that day?

15             "A.  You mean before the event?  Maybe an hour and a half or two.

16     I will be sincere with you.  Even when I was at work, working at the bar,

17     I would have a sip here and there, but when I was completely off alcohol,

18     I wouldn't drink at all.  But otherwise, I drank almost constantly, and

19     that's how I am when I drank."

20             My question to you is, you did not include his statement that he

21     was able to appreciate that the crime that occurred on the 7th of June

22     was wrong in your report or here today in your testimony; is that

23     correct?

24        A.   That's correct.

25        Q.   You did not include in your report or your testimony here today

Page 5892

 1     the fact that he indicated that whatever problems he was having with

 2     alcohol did not impede his ability to appreciate that what occurred was

 3     wrong; is that correct?

 4        A.   No, that is correct.

 5        Q.   These statements are highly important to forensic diagnosis of

 6     Mr. Vasiljevic's ability to recall and appreciate the events of 7

 7     June 1992; is that would be correct?

 8        A.   Yes.

 9        Q.   You did not include that he had stopped drinking that day about

10     an hour and a half to two hours before the event; is that correct?

11        A.   That's correct.

12        Q.   That would have been crucial information to include in any

13     analysis of his BAC on the 7th of June, 1992, because individuals

14     eliminate alcohol from their system over time; correct?

15        A.   Well, over an hour and are a half, it would be .015 percent grams

16     per decilitre.

17        Q.   Doctor, my question to you is whether or not that would be

18     important.

19        A.   Not really.  That would be a very slight -- an hour and a half is

20     nothing.

21        Q.   Well, if an individual drinks alcohol over the course of eight

22     hours, that is a much longer prolonged period than if they drank all the

23     alcohol within three hours; is that correct?

24        A.   Yes.

25        Q.   So that individual would eliminate alcohol from their system as

Page 5893

 1     they consumed more over the course of eight hours?

 2        A.   Sure.

 3        Q.   So someone's blood alcohol concentration would be higher, let's

 4     say, if they drank five cups of cognac within an hour period between 2.00

 5     and 3.00 in the afternoon and then stopped drinking two hours after that

 6     than if someone drank starting at 9.00 in the morning at 5.30 in the

 7     afternoon; is that correct?

 8        A.   That their blood alcohol level would be -- go back to the very

 9     first part.

10        Q.   Let's break it apart.  Thank you for being patient with me.  If

11     someone drinks starting at 9.00 in the morning.  They stop drinking at

12     4.00 in the afternoon.  At 5.30, they would have a certain blood alcohol

13     concentration; is that correct?

14        A.   That's correct.

15        Q.   If someone started drinking five cognacs at 3.00 in the

16     afternoon, drank all five of those cognacs by 4.00 in the afternoon,

17     their blood alcohol concentration would be higher an hour and a half to

18     two hours later than that person who started drinking at 9.00 in the

19     morning?

20        A.   That's probable.

21        Q.   Are you aware that Mr. Vasiljevic was not working at a bar on the

22     7th of June, 1992?

23        A.   No.

24        Q.   No, you're not aware of that?

25        A.   I was not aware.

Page 5894

 1        Q.   Your conclusion in the second paragraph, the one relating to

 2     Mr. Vasiljevic's estimated blood alcohol content, indicates that it is

 3     probable that Mr. Vasiljevic maintained a blood alcohol concentration

 4     of .1 to .2 throughout a given day.  Is that an accurate reading of your

 5     report?

 6        A.   It is.  It is.

 7        Q.   It is then not probable that Mr. Vasiljevic had a blood alcohol

 8     concentration of .3 milligrams per decilitre on the 7th of June, 1992?

 9        A.   Based on what you just read and what I read earlier, I can't say.

10        Q.   So you cannot state to a reasonable degree of scientific

11     certainty that Mr. Vasiljevic had a blood alcohol concentration of .3 on

12     the 7th of June, 1992?

13        A.   I cannot.

14        Q.   Okay.  So with respect to your testimony here today about the

15     effects of an individual who has .3 milligrams per decilitre of alcohol

16     in their system, that really is not a probable conclusion in relation to

17     Mr. Vasiljevic?

18        A.   It's not improbable either.

19        Q.   But it's not probable.

20        A.   Not probable.  It's possible.

21        Q.   It's more like likely, according to your testimony, that he would

22     have likely been somewhere in the range of .1 to .2 based on his daily

23     consumption?

24        A.   That's correct.

25        Q.   What -- I see that based on the review of your curriculum vitae

Page 5895

 1     that you have experienced both administering and teaching standard field

 2     sobriety tests?

 3        A.   Yes.

 4        Q.   Standard field sobriety tests are generally accepted motor skills

 5     tests that are administered by law enforcement; is that correct?

 6        A.   Yes.

 7        Q.   They measure an individual's ability to balance properly while

 8     under the influence of alcohol; is that correct?

 9        A.   Balance and process information at the same time.

10        Q.   And the reason for that is that the individual who the test is

11     being administered to is receiving directions from that law enforcement

12     person while the test is being undertook.

13        A.   When they're performing it, there's no administration of

14     directions.  The directions are given while the person's in a particular

15     stance, and once the directions are completed, then the person is told to

16     implement those instructions.

17        Q.   The purpose of these tests are to ascertain whether or not there

18     are observable signs of intoxication from that individual; is that

19     correct?

20        A.   The purpose of that is to -- if they exhibit a certain number of

21     cues is to estimate blood alcohol levels, not ability to drive.

22        Q.   You cannot scientifically precisely estimate the person's exact

23     blood alcohol level based on the administration of these tests?

24        A.   No.

25        Q.   There would be certain observable signs of intoxication during

Page 5896

 1     the administration of these tests; is that correct?

 2        A.   There are if the person isn't tolerant.

 3        Q.   Okay.  And by intolerant, you're saying didn't build up a

 4     tolerance to alcohol prior to the administration of the test?

 5        A.   That's right.

 6        Q.   Signs that would be observable would include impaired balance?

 7        A.   Yes.

 8        Q.   Slurred speech?

 9        A.   That's correct.

10        Q.   Red, bloodshot eyes?

11        A.   Yes.

12        Q.   They'd stumble?

13        A.   That's correct.

14        Q.   Okay.  With respect to an individual that had built up tolerance,

15     you're saying that these signs might not be observable; is that correct?

16        A.   That's correct.

17        Q.   Would those signs at very extraordinarily high blood alcohol

18     levels been observable, even in a person that has built up tolerance?

19        A.   I've known the people at .3 to do the fields flawlessly.

20        Q.   That's not a common situation, though, isn't it?

21        A.   It's very uncommon.

22        Q.   I'd like to ask you a question in the abstract here.  If two

23     individuals described a series of events, and then separately

24     Mr. Vasiljevic described a series of events, would it be an indication to

25     you that Mr. Vasiljevic had a clear recollection of the events himself if

Page 5897

 1     his description was the same as those two other individuals, if it would

 2     be an indication to you, Doctor.  I'm not asking if you can say it with

 3     certainly.

 4        A.   Repeat it again because I don't know if he was one of the two

 5     original individuals or they were two separate individuals.

 6        Q.   I'm saying two individuals, not Mr. Vasiljevic, describe a series

 7     of events.  Independent to those two individuals, Mr. Vasiljevic also

 8     describes the same sequence of events.  If Mr. Vasiljevic and these two

 9     other individuals describe the same events, would that be an indication

10     to you that Mr. Vasiljevic has a clear recollection of the events?

11             JUDGE ROBINSON:  Describe the same events in the same way.

12             MR. ALARID:  Yes.  And objection, Your Honour, assumes facts not

13     in evidence and referring specifically to the trial judgement, the

14     transcripts of the trial.  Specifically Mr. Vasiljevic was convicted

15     because the Court found that, one, his statements were not the same as

16     the two complaining witnesses --

17             MR. WEBER: [Overlapping speakers] ... Your Honours.

18             JUDGE ROBINSON:  It's hypothetical question, and the witness is

19     an expert.  Did you understand the question?

20             THE WITNESS:  I did.

21             JUDGE ROBINSON:  Yes.

22             MR. WEBER:

23        Q.   Would that be an indication to you that Mr. Vasiljevic would have

24     a recollection of those events?

25        A.   Indeed, if he recall them independently without prompting.

Page 5898

 1             MR. WEBER:

 2        Q.   Okay.  And if -- all right.  Thank you.  I had a couple quick

 3     questions about the Yuille.  Article, Doctor.  It's entitled:  Some

 4     effects on eye-witness memory; is that correct?

 5        A.   That's correct.

 6        Q.   Page 2 of that article found that:

 7             "File-based research on the effects of alcohol on witnesses seem

 8     then and seems now to be impossible."  Is that correct?

 9        A.   That's correct.

10        Q.   You only reviewed paper materials that were provide to you in a

11     file in this case; is that correct?

12        A.   That's correct.

13        Q.   Page 3 of that study states:

14             "Memory for more complex events, those events with an inherent

15     structure, are less acceptable to interference from alcohol."  Is that

16     correct?

17        A.   That's correct.

18        Q.   That Yuille study found that:

19             "The effects of alcohol and eye-witness recall remains

20     speculative."

21             Is that correct?

22        A.   That's correct.

23        Q.   The 11 paragraphs in your report following the first two quote

24     references to other sources; is that correct?

25        A.   That's correct.

Page 5899

 1        Q.   You did not put any of these quotes from that Yuille article into

 2     your report; is that true?

 3        A.   That's true.

 4        Q.   Are you aware that Mr. Vasiljevic has repeated the events of 7

 5     June 1992 on at least five separate occasions?

 6        A.   No, I'm not aware.

 7        Q.   Are you not aware that he immediately told his wife after the

 8     shooting at the Drina River in 1992?

 9        A.   No, I'm not.

10        Q.   Are you then not aware that he then reported the murders --

11             MR. ALARID:  Your Honours.

12             JUDGE ROBINSON: [Microphone not activated]

13             MR. ALARID:  I would object as to the reference unless the wife

14     testified in this trial.  I'm not aware that she had.

15             MR. WEBER:  This is material in evidence, Judge, from the 23rd of

16     October, 2001, clip 28.

17             MR. ALARID:  But -- yeah, but this is Mr. Vasiljevic's

18     representations or his wife's?

19             MR. WEBER:  If counsel would prefer --

20             JUDGE ROBINSON:  Just a minute, Mr. Weber.  Where was that

21     evidence given?

22             MR. WEBER:  It was given by Mr. Vasiljevic on the 23rd of

23     October, 2001.

24             MR. ALARID:  That he told his wife?  Okay.  Thank you.

25             JUDGE ROBINSON:  Yes, go ahead.

Page 5900

 1             MR. WEBER:

 2        Q.   Are you, then, also not aware that according to Mr. Vasiljevic

 3     that he then reported the murders to the police the next morning?

 4        A.   If it was in the transcript, I don't remember it.

 5             MR. ALARID:  And was there any evidence brought in by independent

 6     references corroborating that he, in fact, reported to the police?

 7             MR. WEBER:  Mr. Alarid, that has nothing to do with my question

 8     right now.

 9             JUDGE ROBINSON:  Please proceed.  Answer the question.

10             MR. ALARID:  Your Honour, my objection is that it's not a proper

11     hypothetical for this witness consider --

12             JUDGE ROBINSON:  Why not?

13             MR. ALARID:  Well, considering the fact that he's asking her to

14     comment on self-corroboration over time, and that really doesn't go to

15     the fact of anything, really, other than I think the Court could show

16     that this witness could have an interest in testifying the same way over

17     and over again considering it was his Defence.  I don't -- I would

18     respect the question much more if the wife had testified corroborating

19     that she had told him the next day or the police had corroborated that he

20     reported the next day.

21             JUDGE ROBINSON:  Mr. Alarid, I rule that the question can be

22     answered.

23             MR. WEBER:

24        Q.   Dr. LaGrange, are you aware that the testimony of

25     Mitar Vasiljevic in his trial lasted over 51 hours?

Page 5901

 1        A.   No, I'm not.

 2        Q.   Then you're not aware that Mr. Vasiljevic recounted on both

 3     direct and cross-examination during that testimony the events of 7 June

 4     1992?

 5        A.   I'm not aware.

 6        Q.   You did have the transcript or part of the transcripts from that

 7     trial.  You would agree that on direct examination, Mr. Vasiljevic had

 8     the opportunity to provide his own narrative of the events on 7 June

 9     1992?

10        A.   Yes.

11        Q.   On cross-examination, you would also agree that he had the

12     opportunity to correct and reject assertions that were put to him

13     concerning those same events?

14        A.   Yes.

15             MR. WEBER:  If we could just briefly go under private session.

16             JUDGE ROBINSON:  Yes.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 5902

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13                           [Open session]

14             THE REGISTRAR:  We're in open session, Your Honours.

15             MR. WEBER:

16        Q.   Dr. LaGrange, would it be an important piece of information to

17     you as to whether or not Mr. Vasiljevic could recall the events of that

18     day, being the 7th of June, 1992, if he was able to consistently repeat

19     and recall those events over a number of times over the course of over

20     eight years?

21        A.   It just indicates to me that he had a lot of rehearsal time.

22        Q.   Well, you're not aware that Mr. Vasiljevic never met with the

23     Prosecution in this case before his testimony?

24        A.   No.

25             MR. ALARID:  That's objection.  Misstates the evidence.  That's

Page 5903

 1     exactly what the interview in 2000 was.

 2             MR. WEBER:  I can correct it.

 3             JUDGE ROBINSON:  To be fair, you'd also have to put the 2002

 4     interview.

 5             MR. WEBER:  I agree with counsel.

 6        Q.   With respect to the 2000 interview, you don't recall that; is

 7     that correct?

 8        A.   No.

 9        Q.   With respect to that 2000 interview, you're not aware as to

10     whether or not the Prosecution ever met with Mr. Vasiljevic prior to that

11     interview?

12        A.   I'm not aware.

13             MR. WEBER:  Judge, if I could please just have one moment.

14             JUDGE ROBINSON:  What you're saying, then, Doctor, is that the

15     consistent repetition and recollection of the events by Mr. Vasiljevic a

16     number of times may simply be explained on the basis that he had the

17     opportunity to be rehearsed?

18             THE WITNESS:  That he repeated himself several times, yes.

19             JUDGE ROBINSON:  Not necessarily that he had a recollection quite

20     independently of that rehearsal?

21             THE WITNESS:  That doesn't preclude that, but that doesn't

22     actually indicate that.

23             MR. WEBER:

24        Q.   With respect to what Judge Robinson just asked you, though,

25     wouldn't it be a simple and clear explanation that if he were able to

Page 5904

 1     recall the events consistently over time that he does have a memory of

 2     it?

 3        A.   If that were the case, yes, I agree.

 4        Q.   I mean, that would be the simple deduction based on that fact --

 5        A.   Yes.

 6        Q.   -- would it not?  You would need additional information that he

 7     was, in fact, rehearsed or prepared in order to come to the conclusion

 8     that you're inferring to Judge Robinson here today?

 9        A.   Yes.

10        Q.   And as far as you're aware, you have none of that information

11     that was provided to you in forming your opinion?

12        A.   I do not.

13        Q.   Dr. LaGrange, at page 58, 13 today, you indicated that

14     irreversible brain damage would be noticeable; is that correct?

15        A.   What was the context?

16        Q.   I don't have the exact quote in front of me, but if I put it just

17     directly to you that would irreversible brain damage, would that be

18     noticeable?

19        A.   Not necessarily.  If you had a transient ischemic attack and it

20     just damaged a small area of the brain, you wouldn't notice it.

21        Q.   Doctor, what I'm asking you, would that likely be noticeable?

22        A.   No.

23        Q.   And when I say that, are you referring to just whether or not

24     visually to the untrained eye, would it be noticeable?

25        A.   No, I'm referring to behaviourally, cognitively, and visually.

Page 5905

 1        Q.   An expert can examine someone over the course of time to

 2     determine whether or not they have irreversible brain damage?

 3        A.   Yes.

 4        Q.   You said that one of the long-term effects of alcohol consumption

 5     is long-term brain damage; is that right?

 6        A.   That's right.

 7        Q.   This does not always happen; is that true?

 8        A.   It does not always happen.

 9        Q.   It is possible for people to consume alcohol in quantities over

10     time and not have brain damage.

11        A.   Unlikely, but it's possible.

12        Q.   It is possible; correct?

13        A.   Yes.

14        Q.   It is possible for those people to remember things that happened

15     years ago.

16        A.   Yes.

17        Q.   Just because someone drinks alcohol over the course of time in

18     quantities doesn't mean that they're going to diminish cognitive

19     capacity; is that correct?

20        A.   Not all of the time.

21        Q.   Okay.  I'm just saying just because of that reason, that does not

22     mean that.

23        A.   That's correct.

24        Q.   Dr. LaGrange, I have brought to your attention a number of things

25     that you did not have today in your review of the materials.  Based -- in

Page 5906

 1     relation to the fact that you did not have all of the materials that were

 2     available, whether it be transcripts, videos, reports of other forensic

 3     psychiatrists, do you feel confident today saying beyond a reasonable

 4     degree of scientific certainty that Mr. Vasiljevic had impaired cognitive

 5     functions in 1992?

 6        A.   If I base my opinion on what I read in those transcripts, I

 7     would --

 8        Q.   Doctor, that's not what I'm asking you.

 9        A.   Well, repeat it.

10        Q.   I'm saying now that you know that you did not have all of the

11     materials that were available, that you did not have all the transcripts,

12     that you did not have the videos of Mr. Vasiljevic, that you did not have

13     expert reports and testimony on this topic, can you state to a reasonable

14     degree of scientific --

15             JUDGE ROBINSON:  Just a minute.  Counsel is on his feet.

16             MR. ALARID:  Your Honour, I would object to the context of the

17     question as to relevance considering the fact of the narrow scope of this

18     doctor's opinion and what she would review.  Quite frankly, it's simply

19     because of the 51 hours you add to it, all this -- a great amount of the

20     testimony had nothing to do --

21             JUDGE ROBINSON:  Mr. Alarid, the objection is without merit.

22     Complete the question and let us get on with the case.

23             MR. WEBER:

24        Q.   I'll repeat it one more time, Dr. LaGrange.  Now that you are

25     aware and you've indicated yourself that these materials would have been

Page 5907

 1     important to your review already in this testimony, now that you're aware

 2     of the important information that you did not have, like additional days

 3     of testimony, like transcripts of interviews, like expert reports, and

 4     relating to cognitive tests that were performed on Mr. Vasiljevic and

 5     testimony of those experts, can you say beyond a reasonable degree of

 6     scientific certainty that Mr. Vasiljevic's cognitive functions were

 7     impaired in 1992 without a review of all of those materials?

 8        A.   I didn't say that without the review.  It was never my intention

 9     in my report to say that beyond a scientific reasonable doubt.  I'm

10     simply interpreting what I saw and saying this is what is possible, so

11     the additional information would make me no less certain, no less

12     doubtful.

13        Q.   Thank you.  So it'd be wrong for either party to say, in fact,

14     Mr. Vasiljevic's cognitive functions in 1992 were diminished based on

15     your testimony?

16        A.   That's correct.

17             MR. WEBER:  Nothing further, Judge.

18             JUDGE ROBINSON:  Mr. Alarid, re-examination.

19             MR. ALARID:  Sure.  [Microphone not activated]

20                           Re-examination by Mr. Alarid:

21        Q.   What is the gold standard to confirm brain damage --

22             THE INTERPRETER:  Microphone, please.

23             MR. ALARID:

24        Q.   What is the gold standard to confirm brain damage in an

25     individual?

Page 5908

 1        A.   MRI.

 2             MR. WEBER:  Objection, Your Honour.  Outside the scope of cross.

 3     I did not bring up any testimony relating to the gold standard.

 4             MR. ALARID:

 5        Q.   Well, how would you confirm brain damage?  What is the best way

 6     to confirm brain damage?

 7             JUDGE ROBINSON:  Yes, answer.

 8             THE WITNESS:  You would have to do a functional MRI.

 9             MR. ALARID:

10        Q.   And what would a functional MRI tell a diagnostician.

11        A.   When you look at it, you would be able to tell what areas of the

12     brain were functioning at reduced capacity.

13        Q.   And are there studies that have compared brain scans over a

14     number of individuals to show the extent or lack thereof of brain damage?

15        A.   Yes.

16        Q.   Now, we talked about the opportunity to rehearse testimony.  Can

17     an individual include confabulation within testimony?

18        A.   Yes.

19        Q.   And even from the perception of the declarant.  Could

20     confabulation be considered and felt to be true?

21        A.   After a number of repetitions, it becomes true.

22        Q.   And by becoming true, is that it becomes reality to the

23     declarant?

24        A.   That happens.

25        Q.   Why does that happen?

Page 5909

 1        A.   Because it happens even if you're not an alcoholic.  If you

 2     repeat your perceptions of an event over and over again and you're wrong,

 3     the fact that you repeat them lays down a stronger memory than the actual

 4     event, and you begin to believe it.

 5        Q.   Now, with regards to the selected testimony, would it be fair to

 6     say that you focussed your analysis on references to alcohol consumption

 7     and the amount of alcohol consumed?

 8        A.   I did.

 9        Q.   And why would the remaining 99 percent of the testimony not

10     necessarily, be relevant to this kind of analysis?

11        A.   Because this -- as I've stated before, this kind of analysis was

12     not intended to give a precise blood alcohol level at any precise,

13     specific time.  It was looking at a person's general drinking behavior

14     and sort of predicting based on his self-report, however accurate that

15     was, based on that sort of describing what the blood alcohol level would

16     be on a typical day when that person was drinking, according to his own

17     description.

18        Q.   And do you feel as a psychopharmacologist you had sufficient

19     information from the testimony, and most importantly, the early testimony

20     before the Milan Lukic Defence ever got involved in things, do you feel

21     like you have enough information from the early testimony to render your

22     opinion?

23        A.   Yes, because it's an opinion.

24             MR. WEBER:  Judge, I'd just like counsel to specify what

25     particular opinion he's referencing.  The doctor's given him a couple

Page 5910

 1     different opinions here today.

 2             MR. ALARID:  Let's just say opinions in plural.

 3             THE WITNESS:  Yes.

 4             MR. ALARID:

 5        Q.   Now, what is the difference between competency to stand trial due

 6     to diminished capacity and diminished capacity as you reference into the

 7     side effects of alcohol consumption or the secondary side effects to

 8     brain damage?

 9        A.   That difference would be profound.  The cognitive impairment that

10     I'm referring to is probably not something that would be immediately

11     apparent.  It just meanings that the person isn't able to recall things

12     accurately, but doesn't mean that the person can't function as a normal

13     human being.

14        Q.   And it doesn't mean that they can't understand the circumstances

15     of which they are under trial?

16        A.   They would not lose sight of what is right and wrong.

17        Q.   And so the references to the transcript where he indicates that

18     killing people is wrong and what-not, how does that factor into things

19     for you?

20        A.   That wasn't -- that wasn't a factor at all.  It had nothing to do

21     with memory.  It was a moral judgement.

22        Q.   And -- so what other -- what kinds of things would represent

23     diminished capacity in the context of alcohol consumption or the chronic

24     effects of alcohol consumption?

25        A.   Just the inability to recall past events with any degree of

Page 5911

 1     accuracy.

 2        Q.   And the Prosecution posed to you a hypothetical involving where

 3     two eye-witnesses corroborate the declarant that's the relevant

 4     declarant, and you said that that would assist you in your analysis?

 5        A.   That's right.

 6        Q.   Would it change your analysis if certain relevant details were

 7     dramatically different between the two witnesses and the declarant; i.e.,

 8     two witnesses say declarant had a gun and was actively involved in the

 9     shooting, and declarant says, I didn't have a gun and I stayed out of the

10     shooting.

11        A.   It would be difficult for me to disentangle the obvious desire to

12     claim innocence and say I didn't have the gun with an impaired ability to

13     remember the actual situation, so it is so hypothetical I don't think I

14     could really answer that question.

15        Q.   And with regards to an evaluation either by a psychiatrist or a

16     psychologist, what part of the standardised battery of testing would go

17     to potential brain damage or loss of cognitive functioning due to chronic

18     alcohol abuse?

19        A.   I'm not sure what was administered.  That's why I was asking,

20     because there are dozens of diagnostic tools that could be used, and I'm

21     not sure which ones were used; and I don't know if they were used to

22     assess memory or were they used to deal with right and wrong and

23     reasoning powers; so it's just vast, the number of tests that could be

24     given, and I'd have to know which ones were.

25        Q.   What tests would you give?

Page 5912

 1        A.   If I were to do this, there are some simple memory tests, very,

 2     very simple memory tests that you can give that require testing

 3     short-term memory as well as long-term memory; and these kinds of tests

 4     are screening tests, not diagnostic tests, but they can tell you within

 5     five minutes if there is memory impairment.  Then you can go further to

 6     do an MRI to verify what you suspect in your screening.

 7        Q.   And with regards to a psychiatric or psychological evaluation,

 8     can the evaluation be coloured by simply what the medical professional is

 9     looking for, what is their goal during the time that they have to

10     evaluate that person?

11        A.   I'm interpreting that question to mean that perhaps the

12     psychiatrist was evaluating that person to determine if he was able to

13     speak for himself adequately and was not mentally afflicted in any way

14     that would impair his ability to understand his trial and what was going

15     on, and if that were what was being -- what he was trying to examine or

16     ascertain, it isn't likely that he would have focussed that much on

17     memory.  I don't know, though.

18        Q.   Now, what relevance is there, if any, this would be new evidence

19     from the standpoint that upon admission on June 14th to the hospital with

20     a broken leg that a secondary diagnosis was made of psychosis, and from a

21     hypothetical perspective --

22             JUDGE ROBINSON:  Mr. Weber on his feet.

23             MR. WEBER:  Objection.  This was not touched upon on

24     cross-examination whatsoever, any type of secondary diagnosis, anything

25     outside of the report.

Page 5913

 1             JUDGE ROBINSON:  Mr. Groome, what I do say to that?  It doesn't

 2     arise, Mr. Weber said.

 3             MR. ALARID:  Mr. Alarid?  Mr. Groome?

 4             JUDGE ROBINSON:  Mr. Alarid, I'm sorry.

 5             MR. ALARID:  Got it.

 6             JUDGE ROBINSON:  [Microphone not activated] You get along so

 7     well, so ...

 8             THE INTERPRETER:  Microphone, Your Honour, please.

 9             MR. ALARID:  My position is this, that the Prosecution in

10     cross-examination did touch upon the issue by bringing up the psychiatric

11     evaluation.  To be honest, I'm not really clear on why the psychiatric

12     evaluation was done, but --

13             JUDGE ROBINSON:  Yes, let her answer the question.

14             MR. ALARID:  Now --

15             MR. WEBER:  For the record, we did not have an

16     opportunity [indiscernible] certain information here.  We did not have

17     the opportunity to cross-examine her based on direct evidence, so if that

18     could be considered by the Chamber.

19             JUDGE ROBINSON:  Yes, go ahead.  Answer the question.

20             MR. ALARID:

21        Q.   Now, if the witness indicated that symptoms of psychosis were

22     seeing things, including having a phobia to things black and seeing

23     things black and having fear from that, this is at the time of admission,

24     but how relevant is that to your analysis, if at all?

25        A.   What it indicates to me is he was in withdrawal when a person

Page 5914

 1     can, indeed, have psychotic breaks.  It wouldn't have any impact on my

 2     analysis, though.

 3        Q.   Okay.  And how important is it for the clinician for the person

 4     during giving their history to not under or overrepresent their

 5     situation?

 6        A.   The situation in terms of ...

 7        Q.   Well, let's just say someone's going in for treatment for

 8     alcohol.  Is it uncommon that they under-represent their drinking for

 9     purposes of guilt and appearance?

10        A.   That's pretty common, yes.

11        Q.   Okay.  And so --

12             JUDGE ROBINSON:  Mr. Weber, I'll allow you to ask a question on

13     that matter.  Not now.  When he's finished.

14             MR. WEBER:  Based on that --

15             JUDGE ROBINSON:  If you wish, the question of symptoms of

16     psychosis.

17             MR. WEBER:  Judge, based on her answer, I'm not going to have a

18     question, but at the end of this I would like to make a submission.

19             JUDGE ROBINSON:  Yes.  Go ahead.

20             MR. ALARID:

21        Q.   And is there any relevance to the synergistic effect between the

22     chronic effects of alcohol consumption, possible brain damage, and the

23     acute effects of being under the influence at the time?

24        A.   Oh, yes.  There's definitely an synergism.  It makes the memory

25     of short-term events even more difficult to recall.

Page 5915

 1             MR. ALARID:  Okay.  No further questions.

 2             JUDGE ROBINSON:  Doctor, that concludes your evidence.  We thank

 3     you for coming to the Tribunal to give it.  You may now leave.

 4             THE WITNESS:  Thank you.

 5                           [The witness withdrew]

 6             JUDGE ROBINSON:  Can we move to -- I want to give a decision, an

 7     oral decision.  We are in public session?

 8             This morning, the Defence of Milan Lukic asked the Chamber to

 9     reconsider its decision not to allow Ewa Tabeau to give evidence.  The

10     Chamber had earlier on the 12th of March denied a Defence request to call

11     Tabeau because it was not satisfied that she could provide any more

12     information on the issue of alleged survivors than she had already

13     provided during her testimony as a Prosecution witness.

14             On the 16th of March, the Prosecution filed a notification of the

15     outcome of further investigation regarding alleged survivors.  Attached

16     thereto is a clarification of the demographic unit prepared by Tabeau in

17     which she explains the methodology used by her unit when verifying the

18     death of victims and in which she gives additional information about 18

19     alleged survivors.

20             The clarification contains new relevant information justifying

21     reconsideration of the Chamber's previous decision.  Tabeau may be called

22     as a Defence witness for the purpose of giving additional testimony about

23     alleged survivors.

24             The Trial Chamber further notes that the Prosecution requests

25     admission into evidence of Tabeau's clarification.  The clarification is

Page 5916

 1     to be admitted as a public exhibit.

 2             That's the end of the decision.  Mr. Alarid -- do you wish to

 3     give it a number?

 4                           [Trial Chamber and registrar confer]

 5             JUDGE ROBINSON:  Is this to be admitted as a Defence or

 6     Prosecution exhibit?

 7             MR. WEBER:  Your Honour, I believe it's the Prosecution that --

 8             JUDGE ROBINSON:  Prosecution, yes.

 9             Mr. Alarid, in relation to next week, we have to ensure that we

10     all make the greatest effort possible to make the best use of the time.

11             MR. ALARID:  I can promise you.

12             JUDGE ROBINSON:  We have a request for information about

13     Wednesday because the Prosecution was bringing witnesses here for

14     Wednesday, and they have -- they're asking whether they should bring

15     those witnesses in light of the fact that I am allowing you to call these

16     additional witnesses.  What can you say to that?  What are we to tell

17     them?

18             MR. ALARID:  I think realistically next week is then very full if

19     not overflowing.  Just given the cross-examination of Mr. McCoy, how it

20     flowed over in the next day, I can only assume that it will be the same

21     with Mr. Dimas, and then if you add the issue that we have the examining

22     psychologist for Mr. Milan Lukic as well as my police investigator who

23     touches on a lot of separate facts that I think will deserve

24     cross-examination --

25             JUDGE ROBINSON:  Mr. Alarid, on your word, then, I'll tell the

Page 5917

 1     Prosecution not to bring the witnesses, and if the witnesses -- if the

 2     time is not used ...

 3             MR. ALARID:  We'll use it.  I'll use it, and especially you

 4     inject Ewa Tabeau into it, we're full and we --

 5             JUDGE ROBINSON:  Will you reimburse the United Nations for the

 6     lost time, Mr. Alarid?

 7             MR. ALARID:  I can't afford that.  This building's too big.

 8             JUDGE ROBINSON:  From your rich resources.

 9             MR. ALARID:  You'd kill me.  And Your Honour, practically

10     speaking, we're not even funded for this month until someone makes a

11     decision.

12             JUDGE ROBINSON:  Well, I don't know.  Your friend Mr. Weber may

13     be able to assist.

14             MR. WEBER:  Judge, I didn't know if you had another matter that

15     you wanted to raise.

16             JUDGE ROBINSON:  You wanted to raise another matter?

17             MR. WEBER:  Yes, I just wanted to make a submission to the Court,

18     if I could.

19             JUDGE ROBINSON:  Yes.

20             MR. WEBER:  Your Honours, on the 13th of March, 2009, the

21     Prosecution filed a Prosecution submission regarding admission of medical

22     records, a motion for admission of previous testimony pursuant to Rule 92

23     bis with annexes.  Contained in this material was the Prosecution's

24     request for the admission of the previous testimony of Dr. --

25             THE INTERPRETER:  Please slow down for the interpreters.  This is

Page 5918

 1     not possible for the interpreters.

 2             MR. WEBER:  -- previous.

 3             JUDGE ROBINSON:  You've been asked to slow down.

 4             MR. WEBER:  Thank you, Judge.  We're --

 5             JUDGE ROBINSON:  We didn't get the doctor's name.

 6             MR. WEBER:  It's Dr. Folnegovic-Smalc.  We would just like to

 7     make a brief submission in light of today's testimony to be considered by

 8     the Chamber.  We understand that the Defence still has time and an

 9     opportunity to respond to this in writing, if I may proceed.

10             JUDGE ROBINSON:  Yes.

11             MR. WEBER:  With respect to the testimony that was brought forth

12     today, the Prosecution -- it's probative value was very minimal based on

13     the amount of information that was provided to Dr. LaGrange.

14     Dr. LaGrange testified very candidly before the Chamber concerning the

15     materials that were not provided to her and the importance of other

16     information and things that were done.  Dr. Folnegovic-Smalc personally

17     interviewed Mr. Vasiljevic over the course of two days prior to his trial

18     in 2001.  She performed a series of cognitive tests on Mr. Vasiljevic.

19     She reached conclusions on re-examination by counsel.  He brought up the

20     issue of a psychosis.  Dr. Folnegovic-Smalc fully discusses and analyses

21     the mental condition and cognitive abilities of Mr. Vasiljevic in 1992

22     during the course of both her report and her testimony.

23             The Prosecution would just ask the Chamber to further consider

24     testimony by Dr. LaGrange today; for example, the fact that a forensic

25     psychiatrist would be in a better position to fully evaluate

Page 5919

 1     Mr. Vasiljevic if they personally met with Mr. Vasiljevic and

 2     administered cognitive tests to him in their consideration of the

 3     admission of this testimony as rebuttal related to the issues that were

 4     raised today.

 5             JUDGE ROBINSON:  You mean you are planning to call

 6     Dr. Folnegovic-Smalc in rebuttal?

 7             MR. WEBER:  That's correct, Your Honour.  We have a pending

 8     application, so I don't know -- the Prosecution [Overlapping speakers]

 9             JUDGE ROBINSON:  How many witnesses are you now seeking to call

10     in rebuttal, Mr. Weber?

11             MR. WEBER:  Judge, that's for Mr. Groome to inform the Court of,

12     but with respect to the pending application, the Prosecution did not

13     raise this today to elicit a response for the Defence.  We understand

14     that Mr. Alarid and Mr. Ivetic have time to still respond to this

15     application in writing.  We would just like to provide this additional

16     information for the Court's consideration.

17             JUDGE ROBINSON:  You know what the criterion is in the case law?

18     Couldn't you have reasonably foreseen that you would need this evidence

19     and have called it in examination-in-chief?  Has it a reason

20     ex improviso?

21             MR. WEBER:  Judge, on the 19th of November, 2008, we received the

22     first witness list from Mr. Alarid.  Dr. Linda LaGrange at that time was

23     listed as a toxicology expert, not even as a psychologist.  There was no

24     factual description whatsoever of the opinions that she would be offering

25     in this case.  We had no idea that she would even offer opinions in

Page 5920

 1     relation to Mr. Vasiljevic.  On the 26th of January, we actually got a

 2     report.  That was the first notice we ever had that she would be offering

 3     any opinion in relation to Mr. Vasiljevic.  So no, Judge, the Prosecution

 4     could not have anticipated that because it was something that was not

 5     known to us.

 6             JUDGE ROBINSON:  We're not going to decide now.  We will consider

 7     it.  The threshold as you know is very, very high, but perhaps we could

 8     just hear.  What's your view on this, Mr. Alarid?

 9             MR. ALARID:  Well, Your Honour, I was going to change the topic

10     slightly.  I forgot to submit the report of Dr. LaGrange.

11             JUDGE ROBINSON:  Are you supporting Mr. Weber in his application?

12             MR. ALARID:  To be honest, I got to read the report.  I think

13     it's attached.  I haven't read it yet.  I will reserve, to be honest.  I

14     mean they can present their rebuttal normally in whatever way they can.

15     I know it gets fuzzy when experts get involved, so please let me read the

16     report over the weekend.

17             JUDGE ROBINSON:  Yes.

18             MR. ALARID:  I just moved for admission of Dr. LaGrange's report.

19             JUDGE ROBINSON:  Yes, we admit it.

20             THE REGISTRAR:  Exhibit 1D182 is admitted now, and the

21     clarification of Dr. Ewa Tabeau will become Exhibit P300.

22             JUDGE ROBINSON:  Yes.  We will adjourned until Monday afternoon.

23                           --- Whereupon the hearing adjourned at 1.34 p.m.,

24                           to be reconvened on Monday, the 23rd day of March,

25                           2009, at 2.15 p.m.