1 Wednesday, 25 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 JUDGE ROBINSON: Mr. Groome, you have some preliminary matters.
6 MR. GROOME: Yes, Your Honour. Two very brief matters. Your
7 Honour, I believe it was on Monday that you made a reference to the
8 possibility of requiring the Prosecution to have a witness for Friday.
9 We have identified the possibility or have been discussing the
10 possibility with Dr. Fagel. He's a person who the Chamber has already
11 granted us permission to call, and he lives in the Netherlands; but I
12 would have to know before the close of business today. He's trying to
13 rearrange his schedule. If the Chamber could advise us, I would do my
14 best to make arrangements for Friday.
15 JUDGE ROBINSON: I'm not going to ask Mr. Alarid. We'll assess
16 it at the end of the day in discussion with Mr. Alarid in relation to his
17 witness list.
18 MR. GROOME: Thank you, Your Honour. If I could go into private
19 session for the next matter.
20 JUDGE ROBINSON: Yes. Private session.
21 [Private session]
11 Pages 6206-6207 redacted. Private session.
18 [Open session]
19 THE REGISTRAR: We're in open session, Your Honours.
20 [The witness entered court]
21 JUDGE ROBINSON: Let the witness make the declaration.
22 THE WITNESS: [Interpretation] I solemnly declare that I will
23 speak the truth, the whole truth and nothing but the truth.
24 WITNESS: DAVID GEORGE HOUGH
25 JUDGE ROBINSON: You may sit, and you may begin, Mr. Alarid.
1 MR. ALARID: Thank you, Your Honours.
2 Examination by Mr. Alarid:
3 Q. Good afternoon, Dr. Hough.
4 A. Good afternoon.
5 Q. Adjust your collar there. You're on TV. Excellent. Thank you.
6 Please state your full name for the record, please.
7 A. My full name is Dr. David George Hough, and that's spelled Hough,
9 Q. And what is your -- where do you currently reside?
10 A. I reside in Topeka, Kansas
11 Q. And are you married?
12 A. Yes, I am.
13 Q. And do you have any children?
14 A. Yes. I have two daughters. Their ages are 16 and 12.
15 Q. And currently, how are you employed?
16 A. I'm currently employed in private practice as a clinical
18 Q. And just along the lines of, you know, finding your way here to
19 The Hague
20 bit of your background. Have you ever served in the military?
21 A. Yes, I have. I served in the United States Army from 1970 until
22 1973. During my time in the military, I was in the Army Special Forces,
23 otherwise known as the Green Berets. I went through all the rigorous
24 training that was required of that programme, and I was deployed to army
25 special forces units in Thailand
1 operations as well as special operations with Thai special forces.
2 Q. And were you discharged from the military?
3 A. Yes. I was honorably discharged as a sergeant of the rank E-5.
4 Q. And what did you do after you left the military?
5 A. After I left the military, I came home and matriculated to the
6 University of Michigan
7 Q. And matriculated, what do you mean by that?
8 A. I mean I went to school. I went to college.
9 Q. And I say that because what made you decide to go? Were you
10 living in Michigan
11 A. Yes, that's where I was raised.
12 Q. And so briefly give us your post-secondary education.
13 A. I first graduated for the University of Michigan
14 bachelor's degree in general studies, and then I completed a Ph.D. in
15 clinical psychology of the California School of Professional Psychology
16 in Berkeley, California
17 1988, after which I was accept into a prestigious post-doctoral
18 fellowship at the Menninger Clinic in Topeka, Kansas, in the United
19 States. That was a two-year post-doctoral fellowship in clinical
20 psychologist. After that, I was working at Topeka State Hospital
21 director of the pre-doctoral internship training programme, and I also
22 completed the Topeka Institute for Psychoanalysis Programme. I graduated
23 from that programme.
24 Q. Tell us a bit more about the Menninger fellowship.
25 A. It's a highly competitive fellowship. A lot of people applied at
1 that time. It involved very -- submitting a lot of work samples, going
2 for personal interviews, which included not only regular interviews about
3 background and so on but also clinical stress interviews basically to
4 weed out people with some kind of character problems or something.
5 Q. And what about the Topeka
6 A. That's also a very selective programme. Usually one applies by
7 invitation. I was invited to apply.
8 Q. And how long did you stay with this institute?
9 A. About eight years. It's a very rigorous programme but also -- it
10 requires a lot of time to get through it. There's four years of
11 coursework in addition to ongoing -- a lot of supervision on the clinical
12 cases, psychoanalytic cases, and you have to carry two psychoanalytic
13 cases to full termination, and that can range from three to eight years
14 anyway; and you also have to have two cases that have every promise of
15 being brought to successful termination by the time you're done; so it's
16 a very rigorous screening process. After the first year, there's a
17 screening interview to assess your knowledge about psychoanalytic theory
18 and technique and your readiness to progress forward.
19 Q. Now, you're board-certified in clinical psychology; correct?
20 A. Yes, I am.
21 Q. Tell us about what board certification is and why is that
22 significant in relation to the norm.
23 A. Well, I'm board-certified by the American Board of Professional
24 Psychologist in the United States, and that is the only board that is
25 recognised by the American Psychological Association. There are other
1 boards that are available, but this is the only one recognised by the
3 of work samples to include psychological assessment and work samples for
4 psychotherapy, individual psychotherapy, but also a rigorous interview by
5 a panel, which covers a variety of topics from clinical work to
6 assessment to clinical ethics, research, anything they want to ask. It's
7 a very -- it's a very demanding process, but once having obtained that
8 process, it does confer for the public a level of competence that may not
9 otherwise be necessarily assumed or by having the Ph.D. alone.
10 Q. And I think that you may have mentioned this, but is there any
11 exam work that requires -- is required to get into board certification?
12 A. Yes. There are a number of work samples that have to be
13 provided, not only in terms of one's psychotherapy process but also a
14 psychological assessment.
15 Q. And what about continuing education?
16 A. Well, that's an ongoing requirement that's required of all
17 psychologists who are licensed in the United States depending on state.
18 I'm licensed in the State of Kansas
19 have minimum continuing education requirements which have to be met for
20 both states. One of the requirements, of course, is that you take an
21 ethics course, but aside from that the requirements can be met in a
22 variety of ways, and I've always kept current with my continuing
23 education requirements. I'm currently scheduled to take a four-day
24 course in April when I return in Wichita, Kansas, in forensic psychology.
25 Q. Okay. And I'm going to take slight pauses --
1 JUDGE ROBINSON: Mr. Alarid. I apologise. I should have said at
2 the outset that in the absence of Judge Van Den Wyngaert, Judge David and
3 I sit pursuant to the provisions of Rule 15 bis.
4 MR. ALARID: Thank you, Your Honour.
5 Q. And you'll hear us take a slight pause so that the interpreters,
6 we don't overlap too much, and are they lose some of the interpretation
7 for the benefit of the Serbian -- non-English speakers that are watching.
8 So along the next courses, have you taken any forensic psychology?
9 A. Are you --
10 Q. Yes, what is forensic psychology?
11 A. Well, forensic psychology in a nutshell is psychology as applied
12 to clinical work that has reference to legal implications that will in
13 some way be involved with the court system.
14 Q. So is this essentially your appearance here today under this
15 umbrella of forensic psychology?
16 A. Yes, I would say so.
17 Q. And have you made -- have you been a presenter on clinical or
18 forensic topics?
19 A. Yes, I have.
20 Q. Can you give the Court a relevant litany?
21 A. Yes. Let me get my glasses, please.
22 THE INTERPRETER: Would the counsel please switch off his
23 microphone when not using it, and would you kindly observe the pauses
24 between questions and answers. Thank you.
25 THE WITNESS: Okay. Just looking at my own curriculum vitae
1 beginning on page 7 at the top, and I would be going in reverse order,
2 basically, panel presentation on the political brain, the emotional role
3 of --
4 MR. ALARID:
5 Q. Just one moment. With the Court's assistance [Microphone not
7 THE INTERPRETER: Microphone for Mr. Alarid, please.
8 MR. ALARID: I've just been reminded to turn on my microphone.
9 Could we have 1D22-0719, which should be their CV.
10 Q. And although you have a paper copy there, Dr. Hough, it'll also
11 be presented on the screen, and if you'd like us to go to any particular
12 page reference, looking at the screen you can guide us.
13 A. Okay. Okay, you have the document, and if we turn to page 7 of
14 that curriculum vitae under the heading at the bottom of the page would
15 be entitled presentations, which would be the most recent presentation
16 that I was involved with on a panel discussion. The title of the
17 presentation was the political brain: The role of emotion in deciding
18 the fate of the nation.
19 The next one with forensic implications would have been the one
20 following that on May 7th of 2008, the traumatised society, Bosnia.
21 Q. And why -- tell us about that one a little bit.
22 A. Well, the focus of that presentation was basically regarding --
23 to address the question of how does a society in a post-conflict
24 environment begin to reconstitute itself? How does it begin to address
25 trauma on a mass scale? And that was based partly upon my fact-finding
1 trip with a colleague to Bosnia
2 me, to --
3 Q. And where did you go in Bosnia
4 THE INTERPRETER: Again, would the counsel please switch off his
5 microphone when not using it.
6 THE WITNESS: After arriving in Dubrovnik, we made our way
7 directly to Tuzla
8 Srebrenica, which was very difficult, and then Sarajevo and left from
9 there, so it was a very -- about a 10-day trip, but it was enough to
10 gather some basic information.
11 The next presentation following that, the case of an internet sex
12 offender, 11/11/07
13 predators on the internet; April 18th of 2006, trauma in post-war Bosnia
14 Q. And what was the topic of that [Microphone not activated].
15 THE INTERPRETER: Microphone for counsel, please.
16 THE WITNESS: That was partly in relationship to the topic I just
17 described regarding traumatised society. The one after that, evaluating
18 PTSD, that's post-traumatic stress disorder in the international context.
19 MR. ALARID:
20 Q. And why would that be relevant to, let's say, this situation?
21 A. First of all, the situation that I was actually discussing and
22 talking about was some work I'd done in Kosovo with internationals who
23 had been ambushed, but it would be relevant to any of this discussion
24 because very often people of other cultures are asked to make themselves
25 available in a war-torn culture to provide treatment as best they can
1 under often extremely harrowing circumstances. So the effort is to try
2 to evaluate this phenomena under often very difficult situation and to
3 provide whatever measure of treatment or prophylaxis can be administered
4 at the time.
5 Q. Now, of what relevance is cultural sensitivity to exploring a
6 forensic path with, let's say, a foreign national of Bosnia?
7 A. Well, it's very relevant. Major culture groups in the world
8 obviously have their own patterns of language, social relationships,
9 kinship patterns, concepts of being involved in treatment, accepting
11 The differences between groups can often be quite divergent, so
12 it's important as best one can to try and understand as much as possible
13 about the culture into which you will be immersed and to be sensitive to
14 the degree to which cultural miscues can occur, misunderstandings, and to
15 try to be able to correct those as much as possible. We have that
16 difficulty even in my own culture, which is actually a very multicultural
17 society, people from different socio-economic strata, people from
18 different ethnic groups, and although we live in the same physical space,
19 we live on culturally different worlds sometimes, so it's important to
20 try to be sensitive to this. I could go on through the list, if you'd
22 Q. Please, just briefly --
23 MR. ALARID: And, Your Honour, this is one that I'm not aware of
24 the Court's ruling, is was there a ruling as to the expertise of
25 Dr. Hough? I know there's been several challenges to him, so I think
1 it's relevant to go somewhat into his background.
2 [Trial Chamber and legal officer confer]
3 JUDGE ROBINSON: I'm advised that we gave a general ruling that a
4 number of experts -- a number of witnesses qualified as experts, and in
5 that list is Dr. Hough. Is it Dr. Hough or Hough?
6 THE WITNESS: It's Hough, sir.
7 JUDGE ROBINSON: I'm sorry.
8 I saw you attempting to rise.
9 MS. SARTORIO: Yes, Your Honour. We do not dispute Dr. Hough's
10 qualifications as a clinical psychologist and what he does. We are going
11 to go into some areas where we believe that he has stepped outside of his
12 area of expertise.
13 JUDGE ROBINSON: Good. Well, you can put that to him in your
15 So he has been accepted by the Chamber as an expert witness for
16 the purposes for which he has been called, and I just would like to make
17 that clear. In any event, the Chamber accepts him as an expert witness.
18 I don't think you need to spend a lot of time on his qualifications.
19 MR. ALARID: Exactly, Your Honour, and so what I'm going to
20 deviate to is more relevant work in the areas of which he was brought
21 here and then move on as quickly as possible to his actual findings and
22 how he made those findings.
23 Q. Just from a prospect of most relevant, what other, you know,
24 either from a cultural and/or topic-related aspect from the list as we
25 have before us in the CV could we get any more relevant ones you'd like
1 to talk about before we move on.
2 A. I might touch briefly just on range of experience serving with
3 both prosecution as well as defence.
4 Q. We could go on that, but we were in formal presentations and
5 topic presentations. Is there any other ones that you would like to
6 touch on?
7 A. I don't think --
8 Q. Okay. Good. Thank you. That is where we could go next, is tell
9 us a little bit about your pathway -- it's my understanding you're in
10 private practice today. Tell the Court what the break-up of your
11 practice is.
12 A. My practice consists of approximately -- 40 percent of my work is
13 clinical work in a relatively small private practice where I provide
14 individual psychotherapy and psychoanalysis for adults and the some
15 adolescents of all -- from basically age 17 on through geriatrics of a
16 garden variety of presentations. About 20 percent of my practice would
17 consist of clinical consultations. These would either be to companies or
18 organisations, or agencies of some sort. These typically revolve around
19 personnel issues, organisational issues, management issues. And then the
20 final 40 percent of my work is involved with forensic consultation and
21 the evaluations and --
22 Q. Can you [Microphone not activated].
23 THE INTERPRETER: Microphone for counsel, please.
24 MR. ALARID:
25 Q. More specifically with regard to forensic consultations and
1 evaluations, that 40 percent, how could you break that down and to what
2 degree are you working on criminal cases for one side or the other?
3 A. Okay. Well, first of all, I would divide that forensic work into
4 a number of do maintenance. The first would just be independent
5 psychological evaluations: Insurance companies, government agencies, and
6 so on. And then criminal cases, which of that 40 percent would probably
7 constitute about 75 percent of that. Aside from routine garden-variety
8 competency evaluations, I also for -- private attorneys, local, state,
9 federal, defenders and prosecution, a lot of that criminal work revolves
10 around working with violent crime: Homicide, mass killings, violent
11 sexual predators. I also do some civil cases, personal injury, plaintiff
12 and defendant --
13 JUDGE ROBINSON: What do you call mass killings?
14 THE WITNESS: My definition, sir, would be one single killing
15 episode to kill more than one person. I had a case, for example, where
16 one individual on a drug deal gone bad, basically, killed six people at
17 one setting.
18 JUDGE ROBINSON: I see. Thank you.
19 THE WITNESS: And then I also do some witness credibility work
20 for prosecution and defence, looking at transcripts, evidence of CDs,
21 audio-tapes, interrogations, Miranda issues, or courtroom observations of
22 witness testimony. That would be the --
23 JUDGE ROBINSON: What are the issues that you typically address
24 in your criminal practice?
25 THE WITNESS: There are --
1 JUDGE ROBINSON: In relation to an accused person.
2 THE WITNESS: Okay. The first level, sir, would be basic
3 competence. Are they able to move forward in trial? Do they have the
4 requisite psychological resources to do that? Aside from that, there can
5 be a whole host of issues that may be involved, one of which might be
6 mens rea issues, state of mind at the time of the allegation; and the
7 degree to which that mind may or may not have been influenced by duress,
8 substances of some sort, toxic products, the degree of planning and
9 preparation and so on. There can also be a variety of other issues that
10 I'll be asked to look at. It can be quite broad. They might ask me to
11 look at mitigation issues such as developmental history or to what degree
12 did a certain kind of abuse in childhood, in what way did that manifest
13 in the crime itself, so it can be quite broad. Once you get beyond
14 competency, there's a lot to be looked at.
15 JUDGE ROBINSON: Thank you.
16 MR. ALARID:
17 Q. Now, we're going to cover two topics that you've mentioned, one
18 being an evaluation of Mr. Milan Lukic himself; and secondarily to that,
19 you were also asked to look at three of the witnesses for the Prosecution
20 and for such witness issues. Let's talk first about witness issues.
21 Tell us how you got into that, and tell me what kind of cases have you
22 worked on where witness credibility or issues surrounding the witness
23 became an issue.
24 A. Well, in many instances in my work, witness credibility issues
25 are often quite relevant in cases where the only source of evidence is
1 relying upon eye-witness testimony, when there's no forensic evidence
2 available. It's basically one person's word against another. This is
3 often evident with children, for example, in sexual abuse crimes but in
4 other instances, as well, so that's how I have become involved more in
5 the evaluation of witness credibility and so on.
6 Q. And with regards to [Microphone not activated].
7 THE INTERPRETER: Microphone for counsel.
8 MR. ALARID:
9 Q. And with regards to the actual forensic evaluation of a criminal
10 defendant, tell us about the range of issues in terms of a full formal
12 A. Well, they can be quite wide. I've been asked to do something as
13 simple as simply go and spend time with a defendant who's facing an
14 imminent sentencing that will be quite severe, and sometimes they
15 anticipate -- the attorneys anticipate that this individual will have a
16 hard time with that, so I might spend some time providing some supportive
17 services to them to help that. That would be on the light end of the
18 continuum. Moving forward, obviously the usual -- excuse me, the usual
19 competency issues would emerge, and competency can cover a wide range of
20 topics: Competency to move forward to trial, competency to sign a
21 Miranda waiver, even competency to be executed. There are a variety of
22 competency issues that are relevant in that regard.
23 Beyond that, I'm usually asked to provide a comprehensive
24 psychological evaluation. Sometimes the question is simply quite broad.
25 They just want to know, what is this person's emotional and cognitive
1 status at the time? But other times they might want to know something
2 more specific. They might want to know character organisation. They
3 might want to know capacity for certain kinds of acts; does the character
4 organisation lend itself potentially to engaging in such kind of
5 behavior? That's kind of a broad answer, sir, but it really depends upon
6 the case.
7 Q. Well, focussing you a little bit on your cases, how many times
8 have you been called upon to review criminal cases and also testified or
9 given depositions?
10 A. The total number of times I provided testimony and deposition has
11 been approximately 63 times. I've been asked to review criminal cases
12 far more times than that. These would simply be the number of cases that
13 have moved forward to the next stage of adjudication. Often, they will
14 plea out before that point.
15 Q. Can you take us through some relevant cases that involve a wide
16 range of suspects and their attendant problems?
17 A. I would begin, for example, with looking at death penalty cases
18 that I've worked in the State of Kansas and the State of Missouri
19 Probably in one that I testified on, which is a very difficult case, was
20 the case of State of Missouri
21 Q. Tell us a little bit about Mr. Zinc.
22 A. Mr. Zinc - the case has been adjudicated, so I am free to talk -
23 had spent 20 years in prison for a violent rape committed at the age of
24 20. He had been finally released to the community, and four months later
25 he was violating his parole by drinking heavily, and he engineered a
1 small minor accident with a woman which would allow him to get out of the
2 car and have access to her. In the process of trading insurance
3 information with her, he abducted her. To make a long story short, he
4 took her out into the woods and broke her neck with a choke-hold.
5 This was a man who by every light would be considered a
6 stone-cold killer.
7 Q. Tell us about sort of the -- if you use that common term,
8 stone-cold killer, what would be the more technical term and ...
9 A. The more technical term would be he would be a pure psychopath.
10 He had no remorse, no sense of guilt or conscience about the event. What
11 he was upset about was the fact that he had been caught, which meant he
12 would obviously go back to the prison and face the death penalty. His
13 concern was for himself, not for the victim.
14 JUDGE ROBINSON: What evidence did you give?
15 THE WITNESS: Well actually where I came in on the case, sir, was
16 actually on the appeal. I had evaluated Mr. Zinc right from the very
17 beginning. I was initially called in because he was initially what's
18 called a volunteer. In death penalty parlance in the United States, a
19 volunteer is someone who has impulsively decide they had want to waiver
20 all representation. They simply want to be executed. They want to get
21 it over with now. The attorneys were very concerned about competency
22 issues at that point, thinking this client is obviously perhaps
23 demonstrating some kind of psychiatric disturbance in this volunteer
24 mode, so I was initially called in to assess him for suicidal ideation
25 and his volunteer status. That quickly abated and it became apparent
1 that this was manipulative. This was really a cry for help and a cry for
2 more privileges in the gaol and so on.
3 I then became involved at another point on the case of beginning
4 to provide a comprehensive evaluation of Mr. Zinc so the attorneys would
5 have a good sense of where he had been by developmental history and where
6 he was currently in terms of diagnosis, his cognitive status, the way he
7 regulates his emotions, the way he relations to people.
8 And then the next stage of my work was to look at the actual --
9 JUDGE ROBINSON: What did you find?
10 THE WITNESS: At that stage, I found that he was an adult
11 anti-social personality mixed with paranoia, paranoid features, and that
12 although psychopathy itself is not a formal DSM for diagnosis. The DSM
13 is the nomenclature that we use in the United States. We don't have a
14 formal diagnosis for that, but it often fits under the anti-social
15 personality rubric. He was clearly that --
16 THE INTERPRETER: Could the speakers please slow down for the
17 purposes of interpretation and also pause between question and answer.
18 Thank you.
19 THE WITNESS: The next phase of the work was to try to look at
20 the mens rea issues themselves. That is, to try to have him walk me
21 through step by step the commission of the crime: What was his thinking
22 process, what led him up to the night in question, every detail of what
23 happened that night, and thereafter. I have to say, however, my
24 experience in that case and in other cases has been one where you do not
25 get to that kind of discussion quickly. That takes a lot of rapport to
1 trust as much as possible, to build with the client so that he can get to
2 the point where he is willing to divulge to you that kind of information.
3 He's quite comfortable talking about his childhood and this and that, but
4 when it gets to the crime itself, that's a whole different matter.
5 JUDGE ROBINSON: What was your finding in relation to mens rea?
6 THE WITNESS: My finding with mens rea is that he knew exactly
7 what he was doing. This was a calculated decision that he had made on
8 his part. His reasoning was somewhat flawed in that he assumed that
9 because the woman knew that he had been drinking, because he had told her
10 that he had a parole officer and he told her the name of the parole
11 officer, that she would go and tell the parole officer he had been
12 drinking and, therefore, in violation of the probation and likely be sent
13 back to the prison.
14 His decision was that the only way out of that predicament for
15 himself was that she had to be killed. Any effort to explore with him
16 alternative course -- pathways that he might have taken, such as simply
17 say good-night, apologise, something, something short of taking her life,
18 he couldn't understand that.
19 JUDGE ROBINSON: All right. Thank you.
20 Mr. Alarid.
21 MR. ALARID:
22 Q. Have you ever dealt with -- though it's traditionally known as a
23 serial killer?
24 A. Yes, I have.
25 Q. On how many occasions?
1 JUDGE ROBINSON: Mr. Alarid, we don't need -- I think that's a
2 very good example of the kind of work that he has done. For my part, I
3 don't see that we need to get more examples. Why don't you take him to
4 the issue at hand?
5 MR. ALARID: Well, the only reason I was going to look at two is
6 because you're going to be given some information about Mr. Lukic that
7 from a compare and contrast situation.
8 JUDGE ROBINSON: Ask him about the serial killer. Yes.
9 THE WITNESS: Yes, I did work on a case in the State of Kansas
10 the State of Kansas
11 testify on that case because the jurisdiction moved to Missouri. It was
12 a multi-state case. But I did evaluate Mr. Robinson on a number of
13 occasions along with a voluminous amount of records that were provided on
14 that case. This was a man in summary who would meet women online, on the
15 internet, create conversations with them, and the conversations revolved
16 around deviant sexual practices, sadistic and masochistic practices, and
17 there were some women who were quite receptive to this kind of
18 conversation. He would then arrange for a meeting with these women
19 offline. They would agree to meet in some motel or something someplace,
20 and the procedure that he would use would be that they would engage in
21 their activities together, and then he would finally have them get into a
22 large drum or a barrel, and they thought -- the women thought that this
23 was part of the sexual game. What he didn't tell them was that there was
24 one more step to the game, was that once in the barrel, he would then hit
25 them with a hammer and kill them and seal the barrel, and the barrels
1 ultimately were used to help -- in part of the pylons that were being
2 used to build a dock that he was building on a small lake, so that when
3 he walked on the dock, he would be walking on top of the barrels.
4 I have to say, my outcome with Mr. Robinson was quite different.
5 He was also a psychopath of the first order. He was very manipulative,
6 very difficult to relate to, and he provided me very little information
7 of use.
8 JUDGE ROBINSON: Thank you.
9 MR. ALARID: Thank you, Your Honour.
10 Q. And just to go to the other side of why you were called, in what
11 circumstances have you testified in cases involving witness issues,
12 perception, or credibility issues?
13 A. Well, there have been -- I'll give you -- for example, I will
14 find that. Just a second here. Well, one example is -- it's a little
15 bit -- slightly off base, which would be false witness testimony. We had
16 a man who made a confession to a crime for which there was good evidence
17 that he did not commit.
18 But more often, I had been asked to look at the tapes of adults
19 and children who've alleged sexual crimes of one sort or another. Very
20 rarely do these cases finally reach the stage of court. Often, they are
21 plea bargained out. I think I have one here that may have reached the
22 point of -- oh, on January 4th of 2008, I was called to testify in the
23 case of State of Kansas
24 around the ability of a child witness to provide court testimony. And in
25 that case, as well, I had reviewed volumes of testimony that had
1 previously been provided by the trial to investigators as well as
2 interview tapes, and so on. And in that case my opinion was that there
3 were no barriers for this child to be able to move forward and testify,
4 and she did, and they were able to get a successful prosecution in that
6 JUDGE ROBINSON: Yes.
7 MR. ALARID:
8 Q. And with regards to that, is there a science of the psychology
9 that incorporates issues regarding perception and memory?
10 A. Yes. Those are separate disciplines within the field of general
12 Q. And just generally speaking, what kind of sources do you use, or
13 what kind of resources have you looked at in researching for this case
14 and specifically with regards to witness and memory issues?
15 A. Well, let me say that the amount of resources that are generally
16 available to the professional in the social sciences at this point is
17 voluminous, and looking at those particular areas, as well, is
18 encyclopedic in terms of the magnitude of information that is available.
19 In this particular case, just to familiarise myself not only with the
20 case, the context of the case, the geography, the socio-political
21 dynamics, as well as a variety of issues that may or may not be relevant
22 to the case, I attempted to review as much of the information as
23 possible. I work in a busy practice, so my time is not unlimited; but I
24 did as much as I could, and I've provided a break-down of the various
25 area that I looked at and some of the representative articles that I
1 looked at, which I think in many ways provide a crisp encapsulation of
2 that area.
3 THE INTERPRETER: Please remember to slow down.
4 MR. ALARID:
5 Q. We were just reminded to slow down a little bit. Let's
6 specifically go through memory first because we're going to deal with the
7 witnesses first, and then we'll deal with Mr. Milan Lukic last. Tell us
8 about the memory and the resources that you reviewed.
9 A. Again, the amount of literature available on various topics
10 within memory is voluminous, so one has to simply try to be selective and
11 try to find representative literature that best represents the current
12 thinking regarding literature in the field at this moment. And on page 6
13 of my professional literature review, I can summarise these documents, if
14 you like.
15 Q. Tell us about --
16 THE INTERPRETER: Microphone, please.
17 MR. ALARID:
18 Q. Yes, please. Tell us about some of them in summary.
19 A. Yes. The first document was by -- the author's name is
20 Robert Kraft [phoen], 1998. The title of the work is, "In viewing" --
21 excuse me, "Holocaust Memory: Persistent recall of extreme trauma,"
22 which is --
23 THE INTERPRETER: Thank you for slowing down when you read
25 THE WITNESS: In the book "Viewing Psychology as a Whole: The
1 integrated science of William N. Dember." It's spelled D-e-m-b-e-r.
2 That article in particular was a study of holocaust survivors from
3 World War II and to see if there are any particular features about the
4 way in which they recall the memories that may be alike or different from
5 the kind of memory reproduction we understand at this point with victims
6 of post-traumatic stress disorder.
7 MR. ALARID:
8 Q. What kind of factors might be attendant to the situation?
9 A. Can you clarify your question for me, please?
10 Q. What particular features were they looking for?
11 A. Well, this was primarily a qualitative study that was looking at
12 self-report of interviewed subject. These were elderly citizens
13 interviewed at Yale University
14 of the content of what they reported in their memory but also the way in
15 which they reported it and the way and the degree to which the memories
16 that they reported were infused with strong emotion or the degree to
17 which those memories may have been fragmented.
18 That's relevant because the literature on memories from
19 post-traumatic stress disorder also address a fair amount of the degree
20 to which memories are also re-experienced in a very strong emotional way.
21 Sometimes those memories can be experienced intrusively, wherein the
22 patient report that they really don't really have a sense of control over
23 this. It floods them, as it were, and that sometimes, but not in all
24 cases, sometimes the memories occur in a sort of fragmented piecemeal
25 way. That's not true for everybody, but in some extreme cases, that is
1 the case. So to try to look at -- and to begin to try to understand in
2 general the way in which memories for a great span of time at this point
3 would still be recalled because these are people who were in Auschwitz
4 1944 and 1943, how those memories are recalled now as opposed to
5 post-traumatic stress disorder victims.
6 The next study I looked at, the author was Karen Nelson, 1998,
7 and she wrote an article: "A review of recovered memories of trauma
8 transferring the present to the past," and this is in a book,
9 Contemporary Psychology, a journal of reviews.
10 The next document I looked at was by a number of authors:
11 David Ruben [phoen]; Ariel Boals, B-o-a-l-s; Dorothy Bernstein [phoen],
12 and this was in 2008 and this was: "Memory and Post-Traumatic Stress
13 Disorder: Properties of voluntary and involuntary traumatic and
14 non-traumatic autobiographical memories in people with and without
15 post-traumatic stress disorder symptoms," Journal of Experimental
16 Psychology, volume 137, number 4, page 591 to 614. This particular
17 article was, I think, quite relevant and important because there has been
18 several ways to conceptualise the ways in which post-traumatic stress
19 disorders are reported and experienced by subjects who are experiencing
20 this phenomenon.
21 And one school of thought is one that has been proffered
22 basically by a researcher by the name of Marty Horowitz [phoen] at the
23 University of California
24 fragmenting process in the memories when they are reported back. This
25 finding -- this study also looked at the same phenomenon but found that
1 that's not the case as often as people think. So what they're basically
2 saying is that in the author's view, there is no real reason to create a
3 separate theory of post-traumatic memory that cannot be accounted for by
4 a general theory of memory.
5 Q. What is the general -- a general theory of memory?
6 A. Well, the general theory of memory is that when memories would be
7 recalled, that generally they would not necessarily by in fragmented
8 form; whereas the trauma theory, the special theory would have argued
9 that very often they are. That can have treatment implications as well
10 in terms of helping clients with post-traumatic stress disorder address
11 their traumatic memory and the try to integrate them into their
13 The next article is been a researcher named Daniel Schacter in
14 1999. The title of the article is: "The seven sins of memory: Insights
15 from psychology and neuroscience," and this is offer in The American
16 Psychologist, volume 54, number 3, pages 182 to 203. And I might say, by
17 the way, that I rely on the particular journal The American Psychologist
18 because it is probably one of the most authoritative journals that are
19 made available on the North American continent for psychologists. If you
20 have to subscribe to only a handful of journals that would keep you
21 current and abreast of the new trends in the thinking, this would be one
22 that you would want to have.
23 What Dr. Schacter goes through in his article is basically a
24 number of the ways in which outside influence can -- outside sources can
25 influence the ways in which memory is recorded and recalled later on.
1 There are a number of what are often referred to as attribution errors,
2 so that people will misunderstand in memory what is being encoded. A
3 classic example might be someone is being robbed with a handgun, but
4 because they have only been able to fleetingly glimpse the perpetrator
5 and the whole scene, they might encode what was this that man's hand as
6 rather than being a gun but as a stick. And that may sound a little odd,
7 but that's a misattribution. That's a misunderstanding. And he goes
8 through a variety of ways in which perceptions can be slightly altered in
9 this respect.
10 I also reviewed Darrel Bruce, Dr. Bruce, 1991, "Mechanistic and
11 Functions Explanations of Memory." That was in American Psychologist,
12 volume 6, number 1, page 46 to 48. This is more of a kind of cut-and-dry
13 analysis of some of the neuromechanisms that are involved in memory
14 encoding and processing. It -- I mean, do you want me to go through --
15 Q. Not necessarily. I'm more looking into the ones that best
16 reference what was behind your evaluation of, let's say, the three
17 witnesses that were present.
18 A. Probably Schacter, and then also -- I really also looked at some
19 of the false eye-witness literature as well.
20 Q. Tell us about that, then.
21 A. And there are a number of studies in there. One would be by
22 Saul Kassin, K-a-s-s-i-n; and Anne Tubb, T-u-b-b; Harmon Hosch,
23 H-o-s-c-h; and Amina Mermon, M-e-r-m-o-n; this is in 2001, and it's on
24 the general acceptance of eye-witness testimony research, American
25 Psychologist, volume 56, number 5, pages 405 to 416. Now, what these
1 authors have done is to sample a variety of clinical and forensic
2 psychologist to determine for their own experience the degree to which
3 theorys of eye-witness testimony research have been accepted in the
4 courts where they practice. The finding from this report is that in most
5 jurisdictions at that time, this kind of testimony was allowed in, so it
6 was in -- the purpose of which was to establish the general acceptance of
7 that line of testimony.
8 I also -- I would also recommend Dr. Elizabeth Loftus, and she's
9 a well-known researcher in memory and eye-witness research. This
10 particular journal or document was 1993, "Psychologies in the Eye-Witness
11 World." American Psychologist, volume 48, number 5, pages 550 to 552.
12 And I guess the last one I would reference here would be one by
13 Dr. Gary Wells, 1993. The title of his article is, "What do we know
14 about eye-witness information" from The American Psychologist, volume 48,
15 number 5, page 553 to 571.
16 And then I did provide a brief summation of relevant literature,
17 which I provided to counsel on June 9th of 2008, summarising literature
18 on eye-witness memory and identification.
19 Q. Now, speaking generally, what kind of problems arise in
20 eye-witness memory and identification situations?
21 A. Well, there are a number of misconceptions that have to do with
22 memory, which I'd be glad to enumerate. These are commonly held in the
23 general public, but cognitive science has demonstrated these to be
24 misconceptions and not factually accurate. The first misconception is
25 that memory does not change once it's been stored. The model here would
1 be that memory is encoded like a tape recorder, that once it's brought
2 in, it's stored, it's intact, and it can be retrieved in the same form in
3 which it was encoded, like an audio-tape.
4 The second misconception is that post-event information - that's
5 information that's provided to somebody after an event has been coded,
6 encoded has no influence on memory once its been stored.
7 The third misconception is that memory is impervious to
9 The fourth misconception is that memory failures are a problem
10 with retrieval, with the way in which memories retrieve, but that the
11 encoded memory itself remains intact.
12 The last misconception I will allude to is that memory does not
13 deteriorate or decay over time.
14 Now, I refer to the reconstructive view of memory, which offers a
15 different analysis of these misconceptions. In the reconstructive view
16 of memory, the thesis is that memory is not like a tape recorder, that
17 memory can be altered and changed over time. It does not remain in its
18 pristine form.
19 The second view of the reconstructive view is that post-event
20 information can influence memory. That is, later on what the information
21 one has been exposed to, the conversations we've had, exposure to media
22 and so on can have an altering affect on that memory.
23 The third proposition from the reconstructive view is that memory
24 is suggestible.
25 The fourth is that memory failures can be a product of problems
1 anywhere in the memory process from the way it's been encoded to the way
2 it's been retained and the way in which it's retrieved and recalled.
3 The fifth proposition is that memory is subject to deterioration
4 or decay over time.
5 And finally, this view is generally accepted among the
6 psychologists who study human memory and eye-witness testimony.
7 The take-away lesson, I think, from this reconstructive view is
8 that memory is malleable. It can be influenced. So --
9 Q. And of the literature that you reviewed and in kind of following
10 up on you're saying that the view of -- the reconstructive view, rather,
11 is generally accepted in the psychological community, expand on that
12 lightly, please.
13 A. Well, I would refer in particular to -- there's an article in my
14 reference list by Goodman; Redlich, R-e-d-l-i-c-h; Kyn, K-y-n; Gagtti,
15 G-a-g-t-t-i; Tydi, T-y-d-a; Schaff, S-c-h-a-f-f; and Hahn, H-a-h-n 1999,
16 in the book, and the book is "The Handbook of Forensic Psychology,"
17 second edition, and the title of their chapter in that book
18 is "Evaluating Eye-witness Testimony in Adults and Children," and so
19 that's where I got that particular reference on that.
20 But to speak a bit more to that, this is a generally accepted
21 view among researchers who study memory and eye-witness regarding the
22 malleability of memory and have adopted the reconstructive view. Now,
23 what I'm offering is obviously a schematic representation. It's lacks
24 the complexity of a full theory what you would get in a textbook would
25 have, but there are certain take-away points; so that the final recall,
1 the product of what has been delivered by a subject or witness will in
2 fact be in amalgamation of what actually occurred, which will be the main
3 source of the memories. But along with that recollection of what
4 actually occurred, there will be other features involved as well. These
5 will include internal processes such as what has been intuited by this
6 person, what they inferred happened, information that they have attained
7 from outside sources, post-event information --
8 MS. SARTORIO: Your Honours, I would object at this point. I
9 think the witness is just reciting what he's read in a textbook, and it
10 went far beyond the question.
11 JUDGE ROBINSON: I'm not sure if it's a ground for objection, but
12 my own view is that we have heard enough. Let the witness state -- bring
13 him to the evidence that he has come to give. We have heard enough of
14 his background. Personally, I'm getting impatient.
15 MR. ALARID: Well, Your Honour, just to make the proffer to
16 relevance, but I will move on.
17 JUDGE ROBINSON: It is relevant, but we have had enough of that.
18 Bring him to the evidence that he is to give that relates to this case.
19 She's waiting to cross-examine, and a lot of what he has said will come
20 out in cross-examination.
21 MR. ALARID: And with all due respect to that, I agree, but just
22 because there are different thoughts on the issue --
23 JUDGE ROBINSON: I'm not allowing any more of this background
24 stuff and his practice. We have heard enough.
25 MR. ALARID: Okay.
1 Q. All right. Specifically speaking, let's take us through the
2 stereotypical memory involving encoding, retention, or retrieval as a
3 witness to a crime.
4 JUDGE ROBINSON: Listen, you did not hear what I said. Why has
5 this witness been brought here? Why has he been brought here? Is it not
6 to speak to an issue relating to this case?
7 MR. ALARID: Of course, Your Honour.
8 JUDGE ROBINSON: Well, let him testify about it. Did you not
9 examine him when you proofed him in relation to the specific matter? We
10 have spent an hour and 15 minutes on the witness's qualifications as well
11 as his practice.
12 MR. ALARID: Okay.
13 JUDGE ROBINSON: I am fully satisfied.
14 MR. ALARID: And I'm not -- I didn't tender, this is all the
15 science, Judge. This is the foundation --
16 JUDGE ROBINSON: I don't know how you practice in your
17 jurisdiction. For my part here, we have had enough of that. Move right
18 now to the relevant portion of the case.
19 MR. ALARID: Okay.
20 Q. Now I -- for witnesses that are under protective measures, we're
21 going to use a pseudonym designation for them, but for those who do not,
22 we can use their actual names. Now, just for foundational purposes, is
23 it true that I asked you to look at the issues surrounding
24 Ms. Zehra Turjacanin, otherwise known as VG-114; VG-115; and VG-63?
25 A. Yes, it is.
1 Q. Let's first focus on VG -- excuse me, Ms. Zehra Turjacanin. Tell
2 us what you reviewed before you got to work in this evaluation.
3 A. Well, regarding this particular witness, on page 1 --
4 MR. ALARID: And before I get too far afield, Your Honour, I
5 would tender the CV of the doctor into evidence.
6 JUDGE ROBINSON: We'll admit it.
7 MR. ALARID: And we will call up 1D --
8 THE REGISTRAR: That's Exhibit 1D202, Your Honours.
9 MR. ALARID: 1D22-0779.
10 Q. Now, of course, we can see from the records reviewed on the first
11 page, just take us through, and what were the most relevant issues you
12 reviewed -- or, excuse me, records you reviewed in events of evaluating
13 Ms. Zehra Turjacanin's testimony and presence in the court and her prior
15 A. Well, I would say -- I mean, they're all relevant, obviously, but
16 I think probably the most relevant would be document number 15, the trial
17 testimony itself. In addition, I would say that at the time I wrote this
18 particular report, I had not yet had the opportunity to review the second
19 episode of testimony on November 4th and 5th of 2008; so that would not
20 be reflected in this report. I was given the opportunity to review --
21 JUDGE ROBINSON: Just a minute. Ms. Sartorio.
22 MS. SARTORIO: Your Honour, I would object to any conclusions or
23 use of that second testimony. He hasn't revised his report, made
24 amendments, we hadn't been informed that he reviewed that.
25 MR. ALARID: Your Honour, he just did it, and he didn't generate
1 a report, but I think it's, of course, relevant any new materials and I
2 don't fine it particularly surprising that the follow-up testimony might
3 be given considering that it occurred at such a late date and wasn't part
4 of the original package tendered to the doctor.
5 JUDGE ROBINSON: But she has not had an opportunity to review it,
6 to see it.
7 MR. ALARID: Because, Your Honour, there's nothing to review.
8 It's the testimony --
9 JUDGE ROBINSON: [Overlapping speakers]
10 MR. ALARID: Yeah, it's --
11 Q. Let me just ask you. Dr. Hough, did the review of the most
12 recent testimony of Ms. Turjacanin change your opinion at all?
13 A. No.
14 JUDGE ROBINSON: Very well. Go ahead.
15 MR. ALARID:
16 Q. Please proceed. What did you look at, and what conclusions did
17 you come to, and take us through your mental pathway to your conclusions.
18 A. Well, the document that I reviewed are enumerated on page 1 and 2
19 of this report, and as I indicated, I think perhaps the most relevant in
20 my view would probably be that which is referenced to the trial testimony
21 itself, document number 15. There have been various interviews with
22 investigators and journalists and security forces along the way, but in
23 my view it all comes together at trial testimony.
24 Let me, if I may, just offer a comment as I get into this
25 material, which is that I realise my writing style can be a little bit
1 terse, but I want to say as someone who is also a care provider and a
2 human being that my intention was not to attack these witnesses. I have
3 great empathy for them. I've been to Bosnia, and I've -- I have a
4 first-hand sense of how much suffering has gone on there.
5 JUDGE ROBINSON: Thank you, Doctor.
6 Yes, Mr. Alarid.
7 MR. ALARID: Thank you, Your Honour.
8 Q. Please proceed, you stated that the testimony was most relevant,
9 but also secondary to that I'm assuming earlier statements and history
10 were also relevant. What kind of things did you look for as you did your
12 A. Well, one of the things that you look at as with any content
13 analysis is the degree to which the statements are consistent over time.
14 Now, understandably, with this many years it would be unrealistic to
15 expect perfect consistency from one time of reporting on and event to the
16 next. But there should be enough consistency to state that the thread is
17 still there.
18 So I look for questions regarding consistency and the kind of
19 details that are offered. The versions of events that have been offered
20 across time do not seem to be -- they, in my opinion, seem to lack
21 consistency at times. There at times appears to be some intermingling of
22 what was heard from lived experience. There is also, as I had mentioned
23 earlier, there's an inherent problem here with I think the recall for any
24 of the witnesses because there's been so much time that's elapsed, and
25 that's just a -- it's no one's fault, but it's simply an artifact of the
1 situation here; that we're dealing with events that happened years ago,
2 and that in itself renders memories -- there's a decay process that can
3 set in there, as I think I'd mentioned.
4 Q. Of what significance are Ms. Turjacanin's personal injuries, her
5 obvious trauma from her burns regardless of the source?
6 A. Well, I think there's a number of -- and first, let me say the
7 degree of her trauma does permeate her life, and I think that
8 Judge Robinson, for example, has been very sensitive to that and very
9 protective, and I appreciate that. This is a woman who's been very
10 damaged. And I also think that -- and I'm not saying that she can't
11 testify or that she's incapable of testifying. I think she should have
12 her voice, and I'm glad she's had that. But I also think that given the
13 magnitude of the trauma, we would not be surprised that the trauma would
14 be manifest in the testimony itself, not only what it said and the way in
15 which it's said, the need for several breaks and so on, and I perfectly
16 understand. I work with trauma victims.
17 THE INTERPRETER: Would the speaker kindly slow down.
18 THE WITNESS: But I also know that with trauma victims that often
19 it is very difficult emotionally to recall and report on trauma
21 First of all, the recalling itself can feel like a
22 retraumatisation. It's a stressful experience for that witness to have
23 to go into those memories whatsoever. And the degree to which that
24 stress is heightened by anxiety, to that degree, the recall process
25 itself can be subject to some distortion. Events may be reported in
1 slightly different order, time sequences and so on.
2 There can be misidentifications, and that by no means means this
3 person is fabricating. I do not believe that for a moment. But I do
4 believe that there is a process and a style that is evident from a trauma
5 victim that will be different from that which you would receive from
6 someone who's not been traumatised. It will be -- the style of the
7 trauma victim will be more emotionally driven. It will seem more
8 incoherent to the listener. There is a lot of truth in what they say,
9 but you cannot always be sure of every detail.
10 THE INTERPRETER: Microphone please.
11 JUDGE ROBINSON: [Microphone not activated] And in examining her
12 testimony, you came to the conclusion that he exhibited these traits?
13 THE WITNESS: Yes, sir, I did.
14 JUDGE ROBINSON: You did. What would your conclusion be as to
15 how reliable, then, in a general way would be the testimony that she
17 THE WITNESS: I think that in fairness and justice, have you to
18 give her reliability; but at the same time, you have to balance it,
19 obviously, with -- compassion balanced with a realistic appraisal of what
20 is and is not being delivered, that you cannot assume in the same way you
21 might with somebody who has not been through such experiences that she's
22 going to be able to tell you in a way that you would like to have it
23 presented in clear -- in the way I'd like to have it presented, in clear,
24 logical, factual, the details cohere and hang together. That's not
25 likely to happen. It means you have to kind of listen with a third ear
1 to what is in there.
2 I will say, however, that there remains for me one area that I
3 remain puzzled by, and I don't know how to resolve that contradiction,
4 which is the question of the report to the police station regarding the
5 nature of the burns or the way in which the burns had been received. We
6 have the gas cylinder versus the fire, and I don't have -- I don't have
7 an answer for that. All I know is that I'm left with a question mark.
8 JUDGE ROBINSON: Tell me this. You did not clinically examine
9 this witness.
10 THE WITNESS: No, I did not, sir.
11 JUDGE ROBINSON: And you say that in the introductory paragraph.
12 THE WITNESS: No. So I am --
13 JUDGE ROBINSON: How significant is that? Were you to have seen
14 her and to have been able to carry out a clinical examination, might you
15 have picked up anything that would have altered the conclusions that you
16 have arrive at without the benefit of that clinical examination?
17 THE WITNESS: I think there is always benefit, sir, in having
18 that opportunity to have a clinical examination. To be with the patient
19 in the room is quite different than a records review. That opportunity
20 was not available to me, but I -- and I'm not sure I'd have been the
21 appropriate person to do it, but I think if that had been available and
22 possible, it would have more than likely altered my perceptions; and I
23 would have been able to, at least under those conditions, offer a
24 clinical diagnosis and to ask questions that obviously are not available
25 in reading the records themselves. It would have made a difference, yes.
1 JUDGE ROBINSON: In your practice, have you done a substantial
2 number of what you call these -- the records examination as against
3 clinical examination for court testimony?
4 THE WITNESS: Yes, sir, I have, but in most cases, the ideal,
5 obviously, is to have benefit of both the records and the clinical
6 examination. There have been cases where the opportunity to evaluate the
7 witness, the person themselves is not available, in which case what I
8 have left is the records. But the best examination combines both. Yes,
9 I have testified on records alone.
10 JUDGE ROBINSON: Which one have you done more of?
11 THE WITNESS: The combination, the combination being the clinical
12 examination in conjunction with the records. That's the way I prefer to
14 JUDGE ROBINSON: Yes, Mr. Alarid.
15 MR. ALARID: And, Your Honour, just to kind of tell you where I
16 was going when I received this is, in my jurisdiction we have what's
17 called a 706 expert where we can petition the Court to ask someone to
18 actually evaluate the person; but under the then-atmosphere of the whole
19 case, I thought it would have been inappropriate to suggest such a thing,
20 but it did cross my mind to say, Okay, would the Court be benefitted by
21 an independent, totally neutral but someone that would actually bring
22 those questions to close, but I didn't know what the process would be in
23 this arena, so just to let you know.
24 Q. Now, of what significance is it, though, that as part of the one
25 of the main people that she accused of assaulting her as well as
1 Mr. Milan Lukic was a man by the name of Mitar Vasiljevic who at this
2 point in time was two weeks or so in the hospital and could not have been
3 part of this trauma at least as if it occurred on June 27th of 1992; for
4 hypothetical as well as realistic purposes, can you comment on this?
5 MS. SARTORIO: Your Honour, I object. First of all, it's a long
6 question, and I'm not really sure that I understand what the question is,
7 but what significance is it? He's putting a fact to the psychologist
8 about something he believes to be true and is asking this witness --
9 MR. ALARID: It's a judicial finding, is it not?
10 MS. SARTORIO: Not in this court. Right, but it -- the point is,
11 though, that he's asking the witness to comment on some fact that -- how
12 it would impact on the witness, and I'm not really sure what he's getting
14 JUDGE ROBINSON: The question is unclear, but we are going to
15 take the break, and maybe the break will bring some light to the
16 question, Mr. Alarid.
17 And we are going to take a half-hour break, so we are adjourned.
18 --- Recess taken at 3.44 p.m.
19 --- On resuming at 4.16 p.m.
20 JUDGE ROBINSON: Mr. Alarid, I trust you have benefitted from the
21 break and that you are now in a better position to formulate the
23 MR. ALARID: I'll try and be concise.
24 JUDGE ROBINSON: Yes.
25 MR. ALARID:
1 Q. We can do this by hypothetical or assumption, but, Doctor, in
2 this particular case Ms. Turjacanin also accused and continued to
3 maintain the accusation against the co-defendant Mitar Vasiljevic who was
4 found by his Trial Chamber to have broken his leg and been in a hospital
5 for approximately two weeks --
6 MS. SARTORIO: Objection, Your Honour. This witness did not
7 testify about the Bikavac fire -- excuse me, the Pionirska. This was
8 another fire.
9 JUDGE ROBINSON: What are you saying? That the doctor --
10 MS. SARTORIO: Zehra did not testify about Pionirska fire.
11 MR. ALARID: Zehra accused Mitar Vasiljevic of being one of the
12 perpetrators the night of June 27th, 1992
13 MS. SARTORIO: He wasn't there. He wasn't charged with Bikavac.
14 MR. ALARID: Yes, he was. It was dismissed before a trial. He
15 was originally charged.
16 MS. SARTORIO: He wasn't in the hospital at that time. There was
17 no finding. It was dismissed, Your Honours, so --
18 MR. ALARID: Well, it was dismissed -- let's put it this way.
19 He's my expert. I'm allowed to put hypotheticals to him, and I can get
20 the proof that she was accusing Mitar Vasiljevic as late as 2000 in the
21 meeting with Mr. Groome of which the interview note was tendered at her
22 earliest testimony, and also which I believe this doctor has reviewed
23 that particular note. So I think it's relevant, and it's a fact that is
24 in dispute in this case, I guess; but it's a fact that I think I can put
25 to this witness.
1 JUDGE ROBINSON: Put it on a hypothetical basis.
2 MR. ALARID:
3 Q. Hypothetically, Ms. Zehra Turjacanin accused another person of
4 also participating in the events of June 27th. Hypothetically, this
5 person could not have been therefore because he had broken his leg, and
6 therefore, to a certainty he did not participate in June 27th; yet
7 Ms. Turjacanin maintained that this person was also responsible for her
8 injuries. Given that fact, does that impact one way or another your
9 initial perspectives on this case, or did you include that idea in your
11 A. Well, to answer your complex hypothetical, the answer to the last
12 question is no, I did not include that particular facet in my analysis.
13 However, in that hypothetical a witness who claims a report on someone
14 who was not involved, there's a number of possibilities to account for
15 that; but obviously it's a false allegation which could be due to a
16 number of reasons, but that in and of itself if you find that does begin
17 to raise serious questions about that witness's capacity to provide
18 reliable information about other facets of the event, for whatever
20 Q. And in terms of a false witness, you said that could be because
21 of a number of possible reasons. Can you give an overview of those
23 A. One possibility might be a simple mistake in identification.
24 It's possible to see somebody who looks like somebody who was involved,
25 and so you would have a case of mistaken identification or transferring
1 perceptions from one person to another. You might have distortion due to
2 psychological issues. You might have distortions due to visibility or
3 other physical conditions that were evident at the time of the event.
4 There's just lots of potential possibilities that would have to be ruled
25 [Private session]
11 Page 6250 redacted. Private session.
14 [Open session]
15 THE REGISTRAR: We're in open session, Your Honours.
16 THE WITNESS: There are several meanings to the word in
17 psychology. The one most commonly used in the term "transference" is
18 involved in a patient-examiner relationship where the patient confers
19 upon the treater and begins to behave in certain expectable ways as if
20 that person were somebody else, a parent figure, for example. That's the
21 common use of transference. But among victims themselves, there is also
22 a phenomena of sometimes somewhere in the realm of mistaken identity of
23 seeing someone who has certain characteristics or likenesses of somebody
24 else and can begin to assume that that person that they're seeing is in
25 fact -- is the person -- how do I put this exactly. They transfer
1 properties of their perception about one person onto another person and
2 assume that that second person is, in fact, the first one. It boils down
3 to mistaken identity.
4 JUDGE ROBINSON: Judge.
5 THE WITNESS: Sir.
6 JUDGE DAVID: As I understand in my modest knowledge of
7 psychology, Freud was the one who had introduced originally the concept
8 of transference.
9 THE WITNESS: Yes, sir. That's correct.
10 JUDGE DAVID: And in his first study in his complete works in
11 1925, he explored other meanings of transference; for instance,
12 transference in dreams. Are you familiar with this?
13 THE WITNESS: Yes, I've taught courses on dreams, sir.
14 JUDGE DAVID: Sir, the resource of the problem of transferring in
15 daily relations, similarities among persons initially, unconsciously,
16 even though this problem might come to the surface.
17 THE WITNESS: Correct. Yes.
18 JUDGE DAVID: So transference according to psychoanalytic theory
19 is not a phenomenon related only to illnesses. It's a common problem
20 which the psychiatrist tries to enact from the psychiatric interview.
21 THE WITNESS: Yes, sir, I --
22 JUDGE DAVID: Or the psychological interview.
23 THE WITNESS: Let me say first of all, I'm glad you're a reader
24 of Freud, but I agree with you, transference is ubiquitous. It's
25 involved in all human relationships. In a psychoanalytic process, for
1 instance, transference can be worked with. It's a useful tool to help
2 resolve conflicts for the patient.
3 JUDGE DAVID: But you know about transference - I interrupt one
4 second - is also called -- there's a chapter in Freud called
5 "Interminable Transference," which is to say one of the most difficult
6 things for a psychiatrist is to end up the process in somewhat a right to
7 a cure; is that correct?
8 THE WITNESS: Yes. Yes.
9 JUDGE DAVID: All of these discretions went to the problem of the
10 relevance and importance of the personal interview in relation to the
11 clinical psychology or the psychiatrist. You know that [indiscernible] a
12 word called the psychiatric interview --
13 THE WITNESS: I've read it, sir, yes.
14 JUDGE DAVID: -- which is the leading work in American psychiatry
15 diverging from European psychiatry on the importance of the psychiatric
16 interview to evaluate patients or any kind of clinical diagnosis; is that
18 THE WITNESS: That's correct, sir.
19 JUDGE DAVID: So in not seeing or evaluating personally during a
20 clinical interview in which you could administer, of course, object the
21 test or not but you could go through the various parameters of
22 personality, the psychiatric interview or the psychological interview is
23 crucial in determining in any event in addition to records the structure
24 of the personality.
25 THE WITNESS: I agree with you, sir, 100 percent.
1 JUDGE DAVID: Is Allport also given sufficient elements through a
2 theory of personality any remarks also, Gordon Allport, the founder of
3 the American Clinic of Psychology the importance of an interview; is that
5 THE WITNESS: Yes.
6 JUDGE DAVID: Second point, or third or fourth. The
7 post-traumatic stress could be immediately released in the case of
8 witnesses coming to trial. You have said so in one of your paragraphs in
9 relation to VG-115. [Indiscernible] traumatisation will be played out on
10 the witness's -- it will be predictable, you say.
11 THE WITNESS: Yes.
12 JUDGE DAVID: And so that implies that during the witness time,
13 there could be many emotional releases related to the former trauma.
14 THE WITNESS: That's correct.
15 JUDGE DAVID: And this in the intensity of this release could
16 really bring a steam confusion sometimes --
17 THE WITNESS: Yes.
18 JUDGE DAVID: -- of sub-processes.
19 THE WITNESS: That's very correct, sir.
20 JUDGE DAVID: And even alteration of the language and words.
21 THE WITNESS: That's -- yes.
22 JUDGE DAVID: Isn't that correct?
23 THE WITNESS: That's very correct.
24 JUDGE DAVID: Okay. Thank you very much. I just want to explore
25 only two important items, the relevance of the psychiatric interview, the
1 psychological interview, and also the impact of post-traumatic stress in
2 witnesses when they are called to testify.
3 THE WITNESS: May I add one point to your very lucid
4 conversation, sir.
5 JUDGE DAVID: Yes.
6 THE WITNESS: Which is that when the witness testifies, it's best
7 when candidates -- it's important to try to manage that phenomena so that
8 the witness is not overly traumatised by the process of providing their
9 testimony. It's a delicate balance and they can become over-traumatised
10 very easily without much pressure. Some people think that the
11 opportunity to testify is cathartic and therapeutic, and I think that is
12 true for some people, and for some people it simply becomes one more
14 JUDGE DAVID: Thank you very much. I fully agree with you.
15 JUDGE ROBINSON: Yes, Mr. Alarid.
16 MR. ALARID: And I would like to follow up and before it turns
17 into a question, Your Honours, in focussing on the doctor's
18 recommendation, one of the end points is that she be -- that
19 psychoanalyst or that psycho evaluation be conducted because of the gaps
20 in the ability to reflect on this witness without the benefit of that,
21 whether or not it's this interviewer or someone more appropriately
22 ethnically and, you know, appropriate for this person.
23 Q. Now, as an interviewer, you know, it's for a hypothetical of this
24 situation I think to expand on what Your Honour said is that the
25 testimony, the reliving of it can be traumatic as well.
1 A. Yes, absolutely.
2 Q. Now, can -- what affect with recurring trauma have on the
3 witness? Recurring exposure to trauma relating to their experiences.
4 A. If you're talking about witnesses who have been repeatedly
5 exposed to trauma, multiple or compound trauma as sometimes called, it
6 can become cumulative. One ads on top of another, on top of another; and
7 you end up getting a condition that is sometimes referred to as complex
8 post-traumatic stress disorder, very difficult to treat. These
9 individuals suffer enormously, and in the absence of treatment, they will
10 continue to suffer for the rest of their lives until some form of
11 treatment and care is provided.
12 Q. Now, as a clinician, have you ever had experience where a person
13 who's experienced multiple traumas? Have you had those --
14 A. Very often, yes.
15 Q. And as a clinician, has these persons, if you will, always
16 exposed all the traumas to you at -- early in the process?
17 A. It depends on the person. There is one kind of classification,
18 if you will, where the trauma that they're living is so ubiquitous that
19 they - as it were - leek trauma everywhere. The moment they walk in your
20 office, they're practically reliving it and it's very obvious. It
21 permeates the clinical atmosphere. There are others for whom repression
22 has been more operative for them, where it takes longer to get to the
23 trauma because they're very well defended against it psychologically.
24 That's a different situation, but the cases where they've been exposed to
25 multiple traumas, compound traumas, in those situations very often the
1 trauma is very evident, almost immediately, certainly within the first 15
2 minutes, half-hour, and it's often profound in its manifestation.
3 Q. Now, to put it in perspective to the region, did you have
4 experience either in your travels and/or in your review of the literature
5 to see examples where war victims, victims of the entire theatre, if you
6 will, in their entire time spent in this environment has -- could be
7 called the multiple trauma scenario?
8 MS. SARTORIO: Objection, Your Honour. Again, the relevance of
9 this to our three witnesses, it's a very nice story. It's very
10 interesting, but it has nothing to do with why this witness is here
12 JUDGE ROBINSON: What's the relevance, Mr. Alarid?
13 MR. ALARID: Well, Your Honour, I think if you want to put it
14 into perspective of all three witnesses, they all experienced a litany of
15 things both personal and observed. They experienced their own -- often
16 own assaults and pains. They also experienced watching others close to
17 them in their kinship experience horrible things, and they also
18 experienced a great amount of abuse at the hands of --
19 JUDGE ROBINSON: Yes. I'm satisfied. It's relevant.
20 MR. ALARID:
21 Q. And just looking at the three witnesses collectively but of
22 course we're on Ms. Turjacanin right now, is it possible that she's
23 suffering from the effects of multiple traumas over the course of her
24 war-time experiences?
25 A. Well, my answer is -- of course, I've not interviewed her, so I
1 cannot base it on direct experience, but my inference from the testimony
2 and from the records is that this is very likely; given the region, the
3 nature of the conflict, and so on, I think it's highly probable.
4 Q. Now, what factor might social taboos or religious norms have on a
5 typical patient in revealing things that might violate those social
7 A. A prominent social taboo in the American culture and, really, I
8 any in every culture is to admit that you've been abused in some way;
9 sexual violation being perhaps the one most prominent. People are a bit
10 more willing to admit verbal abuse or physical abuse, but there's so much
11 shame and stigma associated with having been sexually violated that these
12 victims are extremely reluctant to come forward and admit, and they will
13 carry this shame with them sometimes to their grave.
2 [Private session]
11 Pages 6260-6268 redacted. Private session.
18 [Open session]
19 THE REGISTRAR: We're in open session, Your Honours.
20 MR. ALARID:
21 Q. Now, we diverged a bit in private session, but I would like to go
22 back to Ms. Zehra Turjacanin. At -- what concerns short of further
23 involvement of a psychiatric evaluation, what are the overall concerns
24 regarding the testimony of Zehra Turjacanin?
25 A. Well, aside from the testimony, let me just say one thing. I'm
1 concerned that she tells us that she really hasn't had treatment yet, and
2 I'm concerned for her about that, but in terms of providing testimony, on
3 several occasions, she's made that attempt but has found a need to take
4 an emergency leave of an extended duration or a day when confronted with
5 material that may be triggering traumatic memory for her or other kinds
6 of traumatic responses.
7 It may be that the whole enterprise of providing testimony and
8 especially being confronted with trauma memories and trauma ideas and
9 anything that in some way compels her to recollect and to think about
10 these things is just simply too much to bear. So it's difficult to ask
11 her questions about these kinds of experiences because you run the risk
12 of over-traumatising her; and my inference is that she need to leave
13 because the process was simply overbearing for her. It was too much to
15 Q. Now, having -- having reviewed the [Microphone not activated].
16 THE INTERPRETER: Microphone, please.
17 MR. ALARID:
18 Q. Having reviewed the most recent transcripts, does that change
19 your concerns? Does it add to your analysis in any way, before we move
21 A. Not really. I would say again, though, I haven't incorporated
22 that second set of testimony into my report. She was a bit stronger
23 second time around, I think, but she did also reach a point where she was
24 up against or confronted with what was beginning to unfold in a tape that
25 probably was simply emotionally overwhelming for her, and she had to
1 stop. So again, it raises the question of the balancing between how far
2 can you go into this material without causing harm to her. And yet if
3 not questioned enough, then perhaps there's an imbalance on that side.
4 So it's a delicate act. It's a delicate balance.
5 Q. Thank you.
6 MR. ALARID: And Your Honour, I tendered it, but I understand the
8 Q. And moving on to 115. What factors about 115, VG-115, other than
9 the reported abuse factored into your opinion?
10 A. I think aside from the reported abuse and some of the
11 difficulties in thinking that I observed from the transcript and thought
12 organisation and conceptualisation and so on and intermingling of hearsay
13 with what's been directly observed and some discrepancies between prior
14 testimony in 2000 and current, I think the other thing that could not
15 help escape my notice was that she had been found by that Court to not be
16 a credible witness; and I just think that's a difficult position to
17 overcome. So it left me with questions again about her capacity to
18 provide the triers of fact with reliable and coherent information that's
20 Q. Did you find any significance to the fact that she - by some
21 twist of fate - found herself at the two most -- as an eye-witness at the
22 two most major accusations against my client, namely the Bikavac fire and
23 the Pionirska fire?
24 A. Well, yes and no. The yes side would be it does seem a rather
25 uncanny set of coincidences to be there. At the same time, I also
1 understand that criminality and violence was so pervasive that perhaps
2 one couldn't help but run into it sooner or later, but it was noted, the
3 wrong-place-at-wrong-time scenario phenomenon.
4 Q. And what significance was it that she seemed to be experiencing
5 secondary traumas of witnessing horrific acts regardless of whether
6 Mr. Lukic was alleged to have been involved?
7 A. I'm not quite sure if I followed your question, sir.
8 Q. I believe she witnessed people being killed and so forth.
9 MS. SARTORIO: Your Honour, could we have a specific reference.
10 MR. ALARID:
11 Q. Please refer to your report. And on page 2, we're looking at it,
12 she couldn't forget those screams, and it appeared that she was
13 witnessing some horrible things. It appeared that she was witnessing
14 horrible things on the bridge, from her statements. Of what significance
15 is it that she may have witnessed summary executions, as well, in this
17 A. Well, post-traumatic stress disorder can be incurred not only by
18 events that have happened to one personally but -- regarding life and
19 safety and so on, but also events that have been witnessed, and the
20 closer -- the more -- the closer you are to that event, the proximity,
21 the more likely you are to be affected by it. So there can certainly be
22 a PTSD phenomena that can be incurred by having witnessed a phenomena
23 like this, let alone what has been done to her personally.
24 Q. Of what significance is it that she also note that Mr. Vasiljevic
25 is participating in the Bikavac fire on June 27th, that she has also
1 memorialised this into her testimony and perception?
2 A. Well, if she wasn't there -- if she wasn't there, then the
3 information she would be going on would be what has been told to her,
4 hearsay, so there becomes a phenomena of incorporating hearsay into what
5 has been directly observed and then reporting it onto authorities and
6 third parties. It's possible to begin to incorporate some of that
7 material into your own kind of experience and begin to believe it
8 yourself. I don't know that that's the case necessarily, but that's
9 certainly a risk.
10 Q. Is there anything else you'd like to discuss with regards to
11 VG-15 [sic], and ultimately please give your final conclusions to the
13 A. I think that's probably it. I think we covered the main points.
14 My conclusions, again, would be that the -- in my professional opinion,
15 that the testimony that I've gleaned from the records raises questions in
16 my mind about her capacity to offer triers of fact reliable and coherent
17 information that will be useful, and I again note the finding from the
18 2000 court, and I'm not aware of anything in the intervening treatments
19 or circumstances or anything that would have perhaps remedied that
20 problem. That's ...
21 Q. Okay. Thank you.
22 MR. ALARID: And for the record, we would tender the doctor's
23 report with regards to his assessment of VG-115 at this time,
24 Your Honour.
25 JUDGE ROBINSON: We'll treat the report in the same way.
1 MR. ALARID: Okay. I just wanted to make sure I didn't forget to
2 tender it.
3 And let's move on to VG- -- and I would correct myself on the
4 record. It's VG-115, not VG-15 at page 67, line 20.
24 JUDGE ROBINSON: All right. Private session.
25 [Private session]
11 Pages 6275-6277 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: Open session, Your Honours.
5 MR. ALARID:
6 Q. Please continue, Doctor.
7 A. But then ten years later, the name of Lukic is now interjected
8 into the narrative now for the first time. So it would seem that if she
9 knew him and recognised him, his identity, if she had recognised him the
10 first time, she could have said so. Obviously there may have been --
11 JUDGE ROBINSON: Just a minute, please. Judge David has a
13 THE WITNESS: Sir.
14 JUDGE DAVID: I would like, Doctor, to get from you some idea of
15 the role of repression, unconscious repression in post-traumatic stress,
16 which is to say, as you so well know the role of repression in absconding
17 even from rational thinking events that are highly damaging to remember.
18 THE WITNESS: Yes. I think that's an excellent question. As
19 you're probably well aware, the role of repression is actually at this
20 point in time a very controversial one. Though it is well accepted in
21 the psychoanalytic circles, I think in some ways that concept has been
22 misused in some cases in the United States with sexual abuse cases,
23 people who after many years have now reported that now they remember
24 something that happened long ago and say the repression barriers have
25 been lifted, and now I recall. So there's been problems with that.
1 But in general, I agree with you that repression can be a
2 powerful block against the actual recollection, and it would be possible,
3 perhaps, to substitute a more anonymous aggressor soldier for the concept
4 of who really did it, and repression could really do that for you. And
5 then later down the line, years later, repression can under certain
6 circumstances be lifted or repressive barriers can be overcome, so
7 clarity of recollection can sometimes occur, but you do have to be
8 careful about that because there are times when memories may come through
9 repression, and they may be told with great sincerity and great emotional
10 conviction and yet at the same time be wrong.
11 JUDGE DAVID: [Microphone not activated]
12 THE INTERPRETER: Microphone, please, Your Honour.
13 JUDGE DAVID: -- the key to the method of reaction was also an
14 initial Freudian contribution, which is to elicit by many ways in the
15 memory part of the patient circumstances that will later discover the
16 barriers to remember, and Freud called this a reaction.
17 THE WITNESS: Yes.
18 JUDGE DAVID: So this, Freud said, is not an easy process because
19 the repression in itself is unconscious and it's due to resistances of
20 the complex that is there of curing the problem of memory. Is that --
21 could you elaborate on that?
22 THE WITNESS: Yes, that's absolutely true. But let me also say a
23 couple things, sir. One is just in general in the treatment of these
24 highly traumatised individuals, we've found that every action is not
25 enough. There has to be something that follows that, which we call
1 working through, which means that the material is now beginning to come
2 forward; but you have to do something with it. You have to find a way to
3 help that person integrate that into their life.
4 Also, there are cases when repression barriers give way too
5 suddenly, maybe through an abreactive technique or some life
6 circumstance. That, too can be very overwhelming to the person. But I
7 do believe that there is unconscious repression, and I think that all of
8 us carry a lot of things inside of us that we're no longer aware of, but
9 under the right circumstances or the right kind of situation it will be
10 back for us. But for some people, this is a very risky and scarey
11 proposition for them. Have I addressed your concerns, sir?
12 JUDGE DAVID: [Microphone not activated]
13 THE INTERPRETER: Microphone, please.
14 JUDGE DAVID: The question I would like to, again, elicit from
15 you is the role-play by repression, unconscious repression, and not
16 remembering, amnesia, temporary amnesia or long-term amnesia of
17 post-traumatic events.
18 THE WITNESS: That is -- again, it's become controversial, but
19 that is very commonly observed clinically. It's not -- we have -- the
20 general terminology we use with post-traumatic stress disorder is that we
21 would call it delayed onset, meaning that for months or years later that
22 this all comes flooding back. I've talked with many, say, World War II
23 veterans who live perfectly unobstructed lives emotionally until, for
24 example, they watch certain kinds of war movie, there's a number of them,
25 and then it hit them, and it was overwhelming. It was as if it had all
1 happened this morning, and it was very real and powerful. So there is
2 that delayed phenomenon. There certainly is, yeah.
3 JUDGE DAVID: Thank you very much.
4 MR. ALARID: Thank you, Your Honour.
5 Q. Now, was there any evidence from the statement from an
6 inconsistency standpoint or just from your expertise that this was a case
7 of repression versus a conscious decision not to disclose?
8 A. And we're looking at 063, correct?
9 Q. Yes.
10 MS. SARTORIO: Your Honour, I would object. I think this is
11 asking the witness to get into the head of VG-63.
12 MR. ALARID: I'm asking him to do it on the basis of the
13 materials he had available to him.
14 MS. SARTORIO: Well, he's asking her why something was said or
15 wasn't said, and I don't think this witness can answer that question. In
16 a particular circumstance, he can hypothesise and --
17 MR. ALARID: I'll try and reformulate to address Ms. Sartorio's
19 JUDGE ROBINSON: Witness, are you able to offer any scientific
20 conclusion about repression in relation to this witness, particularly
21 taking into account the fact that you have not examined her?
22 THE WITNESS: Well, sir, to answer your question, the fact that I
23 have not examined her really does limit what I can say, and I would be --
24 to talk about a repression as it applies to her would -- it would be
25 beyond the scope of what I could give --
1 JUDGE ROBINSON: Thank you very much. Please move on to another
2 area, Mr. Alarid.
3 MR. ALARID:
4 Q. Now, how significant is it, the fact that this witness gave a
5 very specific physical description, i.e. tattoos, as a marker for
6 Mr. Lukic well before any other disclosures and that if I were by
7 hypothetical to tell you that Mr. Lukic had no such double-eagle tattoos
8 present, how significant is that fact?
9 A. To stay with your hypothetical, if there were no such physical
10 markings like tattoos, and the witness claims to have observed this,
11 then, again, this is a misperception of some sort. I would also note,
12 though, it seems to me from a variety of the records, there is common
13 reference to the double eagle tattoos, which would obviously be very
14 readily observable for any man rolling up his sleeves or having a
15 short-sleeved shirt; so it would certainly capture as a detail. But in
16 the hypothetical, in the absence of those tattoos, it would clearly be a
17 misperception and it perhaps theoretically could be guided by one that
18 has been commonly discussed among others. So the common thread or the
19 common perceptual detail that is agreed upon in the common discussion are
20 the tattoos.
21 Q. Would a simple explanation be also misidentification, i.e.,
22 thinking someone with tattoos is someone else?
23 MS. SARTORIO: Objection, Your Honour.
24 JUDGE ROBINSON: Yes.
25 MS. SARTORIO: First of all, it's leading; and secondly, I don't
1 believe that he's laid any foundation to ask that question, just
2 whether -- he can't explain why she said he had tattoos.
3 JUDGE ROBINSON: I agree, Mr. Alarid. Ask another question.
4 MR. ALARID: Your Honour, how do we address the fact that --
5 within the statements that this -- if I can't bring it up and ask the
6 doctor to postulate on it? I mean, I think by proffer in the statements
7 is this reference of a physical characteristic that is objective, let's
8 say; and yet by proffer, we can say to a certainty that Mr. Lukic has
9 never had such tattoos, and so I think it's a very relevant fact that was
10 within this doctor's ability to comment on; and I agree that it's hard
11 for me to get there without laying a specific point of reference which
12 appears to be leading, but I would say it's not. I would like -- I
13 think -- I'd like the doctor to address it, and I would like the Court's
14 indulgence to do so.
15 MS. SARTORIO: Your Honour, the problem I have is that this is
16 closing argument, and he cannot ask this witness to comment on what
17 another witness -- why another witness may have said something or not
18 said something, whether it was mistaken, whether it was intentional.
19 This witness just cannot comment on that unless he talks to the witness
20 and asks her. So I think it's way beyond any type of hypothetical, and
21 it is for argument, that -- counsel is free to argue whatever they want
22 to argue in their closing briefs about this issue of the tattoo, but this
23 witness is not competent to say what was in her head, why the
24 statements -- what she said about the tattoo.
25 JUDGE ROBINSON: I agree. I agree. You have to move on and ask
1 another question.
2 MR. ALARID: Can we go to page -- could we bring up [Microphone
3 not activated].
4 THE INTERPRETER: Microphone, please.
5 MR. ALARID: 1D22-0788. And could we go to the third page in the
6 document, please.
7 Q. Now, what we've put on the screen, Doctor, is your reports in
8 this particular case, and you've reviewed a number of materials, and I'd
9 like to go down to the third paragraph. Excuse me. And at the bottom of
10 that paragraph, it appears that you considered the physical attributes of
11 these eagles.
12 A. Can you tell me what page you're on, please?
13 Q. Page 3 --
14 A. Okay.
15 Q. -- third paragraph, last sentence. And so taking as certain that
16 she made this reference point, what significance, if any, is this in the
17 final determination of your report?
18 A. Well, again, it goes to misattribution, you know, the physical
19 attributes, which would go to questions about capacity to accurately
20 recall and report upon relevant events for triers of fact.
21 Q. Other than what's already memorialised in the report, do you have
22 anything to add with regards to VG-63?
23 A. Only this, that my view is that reporting on physical attributes
24 are very important because they do certainly assist with identification.
25 If someone -- I think someone is less likely to make a report about a
1 physical attribute if they're not certain, and I think the more certain
2 one is about those physical attributes, the more likely they are able to
3 report it. So my inference is that she may well have been quite certain
4 about that perception, whether accurate or not, but the certainly would
5 likely be there.
6 Q. Thank you, Doctor.
7 MR. ALARID: Your Honour, at this time we would tender into
8 evidence the reports by Dr. Hough regarding VG-63.
9 JUDGE ROBINSON: It will be treated in the same way as the other
11 MR. ALARID: Thank you, Your Honour. And just before I forget,
12 and we're going to move on to the evaluation of Mr. Lukic, please with
13 the court's assistance bring up 1D22-0784, Appendix A. I believe it was
14 to the CV or the report. I can't remember, but if we could bring it on,
15 we could identify it and tender it.
16 Q. Please identify Appendix A as I've uploaded it under a separate
17 number, and tell us what the significance is of this document and to your
19 A. Okay. This is Appendix A, which I had attached to the report of
20 Witness VG-114. The title of the appendix is: Background of the
21 Problem. But what I'm really talking about is background literature
22 regarding eye-witness testimony in memory, and I included that as a
23 supplement for the reader to have some theoretical and conceptual
24 assistance with trying to grapple with these issues about memory and
25 eye-witness issues.
1 MR. ALARID: And Your Honour, for Appendix A, I would tender it
2 as Appendix A to 1D22-0779, which has already been referenced.
3 JUDGE ROBINSON: Yes.
4 MR. ALARID:
5 Q. And next, we'd like to talk about your --
6 JUDGE ROBINSON: We're going to take the break now, Mr. Alarid.
7 MR. ALARID: Okay. Thank you.
8 --- Recess taken at 5.35 p.m.
9 --- On resuming at 5.55 p.m.
10 JUDGE ROBINSON: Yes, Mr. Alarid. I imagine you're coming to a
11 close now. Last lap.
12 MR. ALARID: Yes, Your Honour. We only have one more topic to
13 cover, and it is the -- although it's more expansive, and it involves the
14 evaluation of Mr. Milan Lukic. And, Your Honour, I believe we can remove
15 the Appendix A, and I believe I tendered the three witness statements, so
16 could we bring up 1D22-0735, please.
17 Q. And, Doctor, you had an opportunity to evaluate Mr. Milan Lukic.
18 Tell me how that came about and what you did. Let's start from the
20 A. Well, I was contacted by the Defence to provide an evaluation on
21 Mr. Lukic, and I evaluated him at the Detention Unit, UN Detention Unit
22 here at The Hague
23 approximately three and a half to four hours per occasion for a total of
24 24 hours, and that evaluation was supplemented by psychological testing
25 in review of the indictment and amended indictment documents.
1 Q. Now, in terms of the procedures -- we're going to touch on the
2 actual testing later. What -- but let's just go through. What relevance
3 are the behavioral observations, and what did you observe, and why are
4 they relevant?
5 A. Well, I think they are relevant because the degree to which the
6 interviewed subject is able to engage in a cooperative and productive
7 working relationship, that adds to confidence in the validity of the
8 report. Mr. Lukic related to me in a very polite manner, very
9 cooperative, very forthcoming. He was, I thought, reflective and
10 thoughtful in his answers. I didn't detect any sense of evasiveness and
11 so on. He worked to the best of his ability on the psychological testing
12 tasks, showed good frustration tolerance and task perseverance. I did
13 explain fully the limitations of confidentiality. I explained fully that
14 I'd be writing a report that would go to the Defence attorneys who would
15 be sharing it with the officers of the court, that I may well be called
16 upon to provide testimony in open court and the results of that
17 evaluation. He understood that and conceded to that condition.
18 Q. And briefly, let's go to page 2, the next page, please.
19 A. Okay. In addition, I noted just under the heading of Behavioral
20 Observations, that I did have the interpreter services of Mr. Ivetic, who
21 is currently co-counsel on the Lukic case.
22 Q. Now, briefly and for the Court's assistance, could we go to the
23 next page of the document that's on the screen.
24 A. Okay.
25 Q. That's fine. It's there now. Just so we can follow along with
1 you, Doctor. What are the ideal circumstances of this kind of interview
2 giving the issues of language, interpretation, and so on and so forth?
3 A. Well, the ideal circumstances, of course, are to be able to
4 evaluate the client in your own office outside of detention -- or
5 correctional facility. Also, the best situation is where both the
6 interviewer and the subject interviewed speak the same language and
7 converse fluently. That's not possible in this case. I don't speak
8 Mr. Lukic's language, so I did need an interpreter. I was aware that
9 there is the risk of dual-role relationship, since Mr. Ivetic is also on
10 the Defence team; but the Defence attorneys assured me that they had
11 exhausted resources, all other alternatives to a competent translator, so
12 I agreed to go ahead and work with Mr. Ivetic. And I would say that I
13 think he took his role very seriously. He was extremely focussed. He
14 asked for clarification on any term or word that was not clear. He
15 stayed back when he wasn't needed. He did not interject himself into the
16 process. I've used interpreters before, and it's been -- you have to
17 watch that sort of thing, as well, and to the best of my ability -- to
18 the best of my ability to judge, he did a professional job, and the
19 transcripts -- or excuse me, the interviews were all audio-recorded as an
20 extra measure of reliability and memorialisation of the process.
21 So the aggregate of my report as I believe is based on my
22 information at the time from the multiple sources of data, the
23 interviews, primarily, the testing and the limited records that I had at
24 the time were that this was a reliable and valid report of Mr. Lukic's
25 current emotional and cognitive status.
1 I would also say it's important to recognise that we are
2 evaluating a man who's been accused of crimes that are now 17 years in
3 the past, and there's -- we're seeing more of the current man than the
4 man we might have met at that time. There's no good way to fully capture
5 the man he was 17 years ago, whatever that man was like. We're seeing a
6 man who is obviously by virtue of age alone, he's more mature. He's
7 living in a very controlled environment, and I think there are likely to
8 be some differences, but these are unavoidable. So the task of
9 reconstruction is one that -- it's ongoing, and it's inexact, but it's
10 what have you to try to do.
11 Q. And assuming on cross-examination it will be implied that
12 Mr. Ivetic could have, let's say, not translated properly or anything,
13 did you factor that in?
14 A. I considered it. Obviously, I wouldn't know, but again, my
15 direct observation was that he took the task very seriously. He was very
16 focussed, very -- and had repeatedly told me in confidence, you know, he
17 want to do a good job and he wanted to make sure he got it right. It
18 didn't leave me with any real lingering doubts about his willingness to
19 try to produce the best work product possible.
20 Q. Now, what data were you able to obtain from the initial
21 interview, and why is the initial interview so important before moving
22 into the actual testing?
23 A. Well, several things. First of all, this is a man I'd never met
24 before, and this is a high-stakes case. The risk of losing rapport with
25 a client could be one that could be irretrievable if lost, so I wanted to
1 proceed slowly and carefully. I wanted to build a foundation of
2 relationship with him so that he could tell me in his own words about his
4 I do move through the life in a rather systematic way, beginning
5 from early years moving forward, and there's a purpose to doing that, but
6 at the same time one of the goals I ultimately have in mind is that at
7 some point we do want to get to the information that is perhaps most
8 relevant to the Court, which would be the crime scenes and the mens rea
9 issue; but that takes time and that takes cultivation of the
10 relationship. And the first task is just to get a good base-line
11 assessment of the client's current diagnostic situation and the life
12 history, and I think we were able to accomplish that.
13 There are, of course, as there would be with any reports, there
14 are some -- there are gaps. There are some discrepancies that have not
15 been resolved. My hope had been to be able to come back and see
16 Mr. Lukic for a second pass, at which time I would have had the chance to
17 then begin to dilate more specifically on some of the relevant questions,
18 but before doing that, again, rapport had to be established; and I did
19 need to get a good solid developmental history before other questions
20 could be asked. I think we were able to accomplish that.
21 Q. And what factors did you find relevant ultimately? What -- you
22 know, in summary of fashion, we have the report, but it's quite
23 exhaustive. Let's try and boil it down to the most relevant factors that
24 you achieved in obtaining the background and history of Mr. Lukic,
25 focussing on the first few pages of your report.
1 A. Okay. The most relevant factors, I believe, in terms of the
2 quality of his upbringing, the quality of his relationships was that this
3 is a man who enjoyed a rather fortunate upbringing. He'd come from a
4 very loving family. He was not subjected to any of the usual kinds of
5 environmental situations that have adverse affect on development. He was
6 not abused in any way. He was treated with loving care. His bond with
7 parents was solid. His capacity to relate to peers was very good. He
8 made a good transition to school. He did okay enough in school. He
9 wasn't an outstanding student, but he didn't show any particular academic
10 problems, either.
11 He did make note of several things, of course, which is just the
12 background reference to -- you know, the family had a hard time during
13 the Second World War, and when that war ended then they were subjected to
14 life under the Communist regime. Several of his -- both of his
15 grandfathers, one of whom was killed and the other was gaoled for a
16 while. This created a -- it's a tension point, but not overly so. But
17 again -- but again, you know, the childhood is on firm developmental
18 footing. I didn't find any of the usual indicators that would be
19 signalling the emergence of deviant development or severe
21 Q. What kind of things might we expect if someone was moving towards
22 that path in the psychological realm?
23 A. Well, you might look at -- even from the very beginning, you'd
24 look at the quality of the bonding relationship with the parents. If
25 that was a flawed relationship, you would expect problems to emerge out
1 of that. That would be become manifest in social relationships outside
2 the family. You would begin to see behavioral indicator --
3 THE INTERPRETER: Would the speaker kindly slow down. Thank you.
4 THE WITNESS: You would begin to see behavioral indicators such
5 as fights, delinquency, criminality, getting into trouble, moving into
6 possible drug and alcohol abuse, identification with deviant subcultures.
7 None of this was there. I mean --
8 MR. ALARID:
9 Q. What factors might be the close-knit family, being the youngest
10 sibling of others and also the rural environment that he grew up in?
11 A. Well, two things. One is that this was obviously a very
12 protective factor for him; having a close-knit family, very loving, the
13 youngest child who was protected and seen as somewhat of a pet. He was
14 very well loved, and he learned how to love. And I think that notion of
15 loving and being loved is so important because it does have direct impact
16 on capacity for relationship at later points in life and the capacity to
17 find a loving mate at some point in life.
18 I was also looking for indicators along those lines that would
19 begin to indicate the possibility of deviant relationships moving in the
20 direction of psychopathy, for example. Often when you really look at the
21 developmental trajectory of the true psychopath, you will find that the
22 relationships from the very early life forward have been flawed in many
23 ways. This is not the case with this man.
24 Q. And we touched briefly on the academic history [Microphone not
1 THE INTERPRETER: Microphone, please.
2 MR. ALARID: I apologise.
3 Q. We spoke -- you spoke briefly or began to speak about the
4 academic history. Of what significance is someone's academic background
5 in your evaluation?
6 A. It's significant because often -- childhood disturbance in
7 character will often begin to manifest once the child has matriculated to
8 school. This will also often be evident either by virtue of learning
9 problems, learning disabilities, or attentional problems of some sort,
10 which manifest in poor grades and difficulty following and tracking in
11 the classroom, or conflicts with peers and so on. In other words, if the
12 child is beginning to show problems, they will begin to manifest in the
13 academic environment. As best I can tell --
14 THE INTERPRETER: Would the speaker kindly slow down.
15 THE WITNESS: Sorry. As best I can tell, from all report about
16 his academic history, he was a relatively well-adjusted student. He
17 describes himself as not being a bookworm. He was not an intellectual
18 striver. But at the same time, learning came relatively easy, and he got
19 along -- but he was more social, and he got along with his friends --
20 MR. ALARID:
21 Q. And that -- let's go to page 6 of the report that's on the
22 screen, the sixth numbered page at the top, and that would be social
23 history. What kinds of social historical factors are important to a
25 A. Well, I would look at the quality of his relationships with his
1 friends. I would want to know if he had a best friend. Was he capable
2 of having that kind of close relationship? For example, he did tell me
3 most of the kids that he played with were Muslim kids. He did have a
4 best friend. He was able to become heterosexually relate to a girl in
5 the neighborhood. He was able to blossom towards relationships outside
6 the family. Dating and socialising always came easy for him. He always
7 had his pick of the girls. He's comfortable in a social situation.
8 As best I can tell, he didn't really have any kind of problem --
9 I mean, any kind of problems socially, and he was able to relate to
10 people of various nationalities: Croatian, Muslims, Serbo-Croatian,
11 Latin America, Latin American friends. He makes friends easily. He was
13 Q. And -- we all know about the conflict and the racial-religious
14 tensions that were in there, but would that be something you would
15 normally touch on in, let's say a psychoanalysis of a States-born person
16 in middle America?
17 A. Yes, and I don't find any evidence that he felt any special
18 strong tension one way or the other regarding the different cultures and
19 groups. He felt quite comfortable with all of them, didn't harbour any
20 particular prejudice or certain preconceived notions or over-valued ideas
21 about other people who were different than himself.
22 Q. And if you were on a hypothetical analogy interviewing someone
23 back home where -- do you actually ask them about racist tendencies or
24 bigotry in their lives?
25 A. Yes, I sometimes, do and that's especially true for minority
1 evaluations in terms of their relationship vis-a-vis the dominant
2 culture, but I think it'd be especially relevant in the particular
3 climate -- or the particular context in which we're extrapolating to.
4 Q. Now, moving on to the bottom of the page and the next page on the
5 report. What, if anything, did you find relevant in his medical history?
6 A. Not much, really. I mean, he's a relatively healthy male. He
7 really hasn't suffered any serious illnesses or diseases. He hasn't
8 suffered any kind of prominent neurological problems. He's never had a
9 head injury. He --
10 Q. And -- just moving on, and I think this might be included, sort
11 of, in medical is psychiatric history and drug and alcohol history.
12 Those are medical connotations.
13 A. Yes, they do. The psychiatric history is fully negative. He's
14 never been involved in any form of treatment, nor never sought out care
15 nor never had it recommended, never been under any kind of psychotropic
16 medication. It just hasn't been an issue.
17 With drugs and alcohol, he denies having used drugs. With
18 alcohol, he -- when he had access, he drank very little, which is kind of
19 unusual in a culture that values consumption. He would drink up to, as
20 he has put it, a half a beer at a setting to be sociable but not
21 necessarily because he enjoyed the alcohol himself.
22 Q. Okay. [Microphone not activated] Now, the next section starting
23 the next page, top of the page but the heading being at the bottom of the
24 seventh page is legal history. Now, clearly this is -- we're in this
25 courtroom, so what significance is legal history, and how does that
1 factor in as a possible issue in your evaluation?
2 A. Well, legal history is important to note. Aside from the current
3 charges, what he reports is that other than that, there really -- that
4 his legal history has been negligible, and I would ask that because
5 whenever I'm evaluating, especially for the possibility of anti-social
6 behavior, it's important to begin to look at delinquent acts or
7 encounters with the police or juvenile justice authorities prior to the
8 age of 15.
9 He tells me that the worst -- and I ask him about acts as a
10 delinquent for which he had not been caught, and he reported that the
11 worst thing they had done was some of the kids would pick some fruit from
12 a neighbor's tree. I don't consider that especially serious. But other
13 than that --
14 Q. And what factor -- I apologise for interrupting.
15 A. That was really it.
16 Q. But what factors might be apparent if someone is sort of showing
17 anti-social behavior or psychopathic tendencies if that's apparent?
18 A. Well, if that were beginning to emerge, then you would begin to
19 see -- you'd begin to see encounters with law enforcement and criminal
20 justice authority. You'd begin to see the repeated violation of the
21 rights of others at that early age. You would begin to see other -- you
22 would more than likely see failure at school or poor adjustment at
23 school. You would likely see the emergence of using drugs or alcohol on
24 a pretty steady basis, identification with deviant sub-cultures, valuing
25 crime as a way of life. Again, that's not there.
1 Q. Now, we move on to work history. Tell us what you discovered and
2 why it might be relevant in evaluation.
3 A. Well, I always ask about the work history because I want to know
4 about a person's capacity to engage in a productive and useful endeavor
5 to earn their own living in life. And in a nutshell, he values work.
6 He's been valued by employees, he tells me, as a valued employee. He
7 hasn't had long periods of unemployment. He works hard. The work
8 itself, though, has been relatively manual for the most part,
9 construction, working in local restaurants, making pizza. These are
10 relatively work-day jobs; but he functioned adequately on the job, never
11 been fired from a job, never been disciplined on the job, never been
12 threatened with being fired, and so on. He loved to work. That's the
13 main finding on the work.
14 Q. Now, just in terms of the next topic --
15 MR. ALARID: And we can go to the next page, please.
16 Q. -- military history, and one of the things that jumped out at me
17 was that you put his -- basically his early compulsory service in the
18 classification military history. Why not include the full war in this --
19 under this sub-setting of your report?
20 A. Well, I think what I captured here was the first stint of
21 military. This was the compulsory military service in the Yugoslavian
22 national army, a 12-month stint. He adapted well to the military. He
23 functioned adequately. He was honorably discharged. He went through the
24 usual military training. He learned about the weapons that everyone else
25 would learn. No special training beyond learning how to run a fire --
1 rocket operator. But he wasn't subjected to any form of military
2 disciplinary actions. He wasn't -- he adopted adequately in the
4 Q. Thank you. And your next sub-headings that you note are martial
5 arts training and weapons interests. Why are these some things that
6 would deserve your attention and why are they relevant, if anything?
7 A. I look at these areas because they can be indicators of
8 aggression and how aggression is managed. The martial arts are obviously
9 a very useful way to sublimate aggressive energies, but there are people
10 who sometimes will use the martial arts as a way to either compensate for
11 low self esteem or to gather skills that can be used in a reckless or
12 more anti-social manner. I didn't find any of that to be true with the
13 martial arts. In fact, he really enjoys all sports. He's a sportsman.
14 In terms of weapon interests, I've worked with a number of people
15 who have been weapons collectors and seem to gravitate towards a world of
16 guns and weapons and so on, and that's not really the case for him. He
17 did have a license to have a pistol as well as a rifle at one point, but
18 he's not a collector. He said after the war he'd sometimes go hunting
19 for wild boars, so this is again sportsman level of involvement with
21 Q. What relevance, next page, please, for the Court' assistance,
22 finally, your last personal section is interest in movies and/or books.
23 What relevance is this to your analysis?
24 A. These are relevant because I think it's important to try to
25 understand not only intellectual interests and outlets but capacity for
1 higher aesthetic identifications.
2 In what way can he -- again, books and movies are again good ways
3 to sublimate mental energy and to bind and contain it, so while he's not
4 an avid reader, he does read, relatively light stuff. He's not a deep
5 intellectual, and there were a number of movies that he had mentioned.
6 He mentioned the book "The Bridge Over the River Drina," which is very
7 popular, and I've read it myself. He also mentioned the movie, "Pretty
8 Village, Pretty Flames," which I did later take the opportunity to review
9 myself so I would know what he was referencing.
10 Q. Did you get any insights from watching the movie as to the
11 subject matter and applicability to Mr. Lukic's life?
12 A. Well, I did because first of all he informs that the movie has
13 personal relevance for him not only because it has a way of depicting the
14 way conditions were on the ground at the time among combatants but more
15 specifically some of the men who were trapped in the scenario -- in the
16 movie, men are trapped in a tunnel fighting for their lives and that he
17 knew these men, that the movie was based on an actual military event. So
18 it had personal relevance for him.
19 Q. And then the most major section which I think [Microphone not
20 activated] ... excuse me, my microphone's off.
21 The next major section and probably most relevant is his
22 relationship to the actual war. What did you garner, and why is this
23 relevant to this evaluation?
24 A. Well, several things. First is that in Mr. Lukic's narrative
25 regarding his life, he seems to bifurcate the life into two sections.
1 There was life before the war, which was relatively tranquil,
2 relatively -- he wasn't necessarily burdened by a high degree of problems
3 or worries. But then along came the war, and as he put it in the first
4 sentence of that section 2, the war changed everything. So in his view,
5 things did change for him and for the world thereafter.
6 But his induction to the war came rather slowly. He had been
7 living in Europe
8 actually, he was in Switzerland
9 reports on the television; and he and his friends from all parts of the
10 former Yugoslavia
11 disbelief, and he and his friends were shocked by what they were seeing.
12 But he also began to describe a process where he really didn't
13 take sides at that point, and he gave money to refugee causes, regardless
14 of whose particular group it involved. He just want to go wherever there
15 was girls and dancing.
16 Q. How did he describe his induction into the war?
17 A. Well, albeit rather slowly, but when he finally made his way back
18 to Visegrad, he wanted to check on his parents. He was worried about
19 them because they were obviously in a combat zone, and when he arrived in
20 Visegrad, he met some of his old comrades to include his school professor
21 that he had revered, and the professor was, I believe, in charge of the
22 police brigade at that point and began to tell him what was going on. He
23 simply want to go visit his parents and see how they were doing, but in
24 order to be able to get authorisation to travel in the combat zone, he
25 had to wear a uniform, and that was really the beginning. And he soon
1 found himself in a uniform carrying a weapon and following the orders of
2 the chief.
3 MR. ALARID: Can we just for reference go to page 13, at the top
4 of the document that's on the screen.
5 Q. This is just by reference I think where you were paraphrasing
6 from your report.
7 A. Yes. He was trying to tell the chief or former teacher, as well,
8 he'd found a girl. He want to marry her, wanted to take his parents back
9 to Belgrade
10 that people were returning to the region from all over the world,
11 United States and everywhere, and that there was a subtle pressure
12 exerted upon him to arouse Serbian nationality.
13 Mr. Lukic explains that he didn't really want to go along with
14 this, but he thought the uniform was the passport to get to his parents,
15 and when I ask him in the third paragraph down how he felt once he had
16 the uniform on, he responded: "I didn't know any better. I thought it
17 was a game." And I note this because he was slow seemingly to catch on,
18 that there really was a war coming, and this climate was becoming very
19 dangerous very quickly, and it didn't seem to quite register with him
20 yet. And I'd later ask him, When did it become serious? And this was
21 not really until the Uzice Corps was about to leave, and then he realised
22 that this was real and this really was going to happen.
23 But there is a passive kind of in-tow quality about his
24 induction. It's really what some people would describe as role
25 induction. He went along. He went along with the flow, with the
1 mobilisation; and he was with the chief, and he found himself going with
2 the chief, here and there, and next thing you know without police
3 training or experience in this area, he's helping round up people and
4 bring them for interrogation. So it really began from there.
5 MR. ALARID: Just -- could we go to the next page, please, on the
6 computer screen, and actually, page 15, please.
7 Q. Now, at some point in time the Uzice Corps left Visegrad, and it
8 changed for him a little bit. Tell us about the next disclosures and why
9 that might be relevant to your report.
10 A. Well, he describes it as the Uzice Corps was preparing to leave
11 and then ultimately did leave, that this created a power vacuum that was
12 to be filled by local police, and panic ensued.
13 In an environment like this as tensions mounted, groups would --
14 respective ethnic groups would begin to cluster unto themselves and
15 experience the other group that they had prior to this conflict related
16 to in harmony and civility as a potential enemy that would take -- that
17 would bring harm to them if they in some cases did not bring harm to the
18 enemy first. So it really became, in my view, a break-down of social
19 authority and civil -- the civil institutions, the institutions that are
20 normally designed to protect the citizenry, such as the police and to
21 keep the wheels of society functioning all begin to break down.
22 Q. There was a -- excuse me. There was a discussion about the
23 White Eagles and their role at this early phase in the war. How did that
24 come about, and tell us.
25 A. I may have either asked him, or he may have mentioned it. I'm
1 referring back to page 15, the bottom paragraph. He was describing that
2 when the Uzice Corps left, that there was a group that was -- that stayed
3 behind who -- and, again, I'm reporting what he's telling me, that there
4 was a group that was left behind by the name of the White Eagles, and he
5 informed me that the White Eagles consisted of approximately 50 to 80
6 individuals who had fought in major combat engagements throughout the
7 region. They'd sort of move from conflict to conflict, and that their
8 commander had been a former legionnaire. I'm assuming that was French
9 legionnaire, but I'm not sure, and that no one could really approach them
10 at the Vilina Vlas Hotel.
11 And he informed me that his commander -- that the commander of
12 the White Eagles received personal instructions from the chief of police,
13 and I took probably one of the first opportunities, because it would take
14 many opportunities, but I took one of my first to ask him about his
15 alleged involvement with the White Eagles while he was in Visegrad. And
16 he denied it, and he went on to exclaim that he never approached them nor
17 did he drink with them. His own view of them, the White Eagles, were
18 that they were, in his words, druggies, criminals, bad apples, that their
19 leader had been, again, a former legionnaire and that the deputy of the
20 White Eagles was a retired colonel from the Yugoslavian army. He went on
21 to explain that he didn't go into the hotel where the White Eagles were
22 located. No one really knew much about them. He just knew that they
23 were there, and they'd stayed until if end of July.
24 So again, his report to me is he's disavowing connection with
25 that group.
1 Q. And in describing the command structure, I note that you have a
2 Chief Savovic, Brano. Are you sure it's not Branimir Savovic?
3 A. It may be. I may have miscopied it in my writings. I can't be
4 certain about that. That's quite possible.
5 Q. And how did his disclosure regarding the war wrap up?
6 A. Wrap up. Okay. I guess to make a long story short, he described
7 that -- he became increasingly dissatisfied with the role that he was
8 involved with in Visegrad. He became quite hurt and disillusioned when
9 his commander and several of his friends were killed and that he finally
10 got out of Visegrad area and went into action behind the lines with the
11 military and then went on to tell me about those kinds of experiences.
12 Q. Did he tell you about his other duties as a police officer before
13 he transferred to the military?
14 A. Let me see. I don't really recall in detail about -- well --
15 Q. I guess to refer you to your report, page 17.
16 A. Okay, let me look.
17 Q. Bottom of the page.
18 A. Okay. He described that -- there were lists of extremists who
19 were to be rounded up. In his report is that the extremists -- the
20 rounding up of the extremists would have been left to the older
21 professional police or military, not to people like him. This was to be
22 done by the pros. He also described that in his role as a policeman, in
23 conducting his duties, that when he would go to the residence, he would
24 always introduce himself, give his name. That he did this because he was
25 trying to follow what he believed to be the role of policemen, and that
1 policemen all over the world when they come to the home, legitimate
2 policemen will introduce themselves: I am Officer so-and-so. So he
3 thought that's the way it's supposed to be done because he had no
4 training as a policeman. And he described other scenes that he saw and
5 so on, trucks leaving with cargo going north and so on. But his role of
6 policeman as he describes it was relatively low-level, rather
7 circumscribed, and so on.
8 Q. Thank you. And as he transferred from the police to the
9 military, describe that and his relationship with the SDS party, if any.
10 A. First of all, he described that he was relieved to be away from
11 the police and out of Visegrad, though the duty he was now embarking upon
12 was far more dangerous behind the lines. It was still a relief to be
13 away from where he had been. He saw a lot of combat, almost continuously
14 for a while. He acknowledged that he took lives in combat. As best I
15 can tell from his report, however, his description s of those incidents
16 would have been within the customs and conventions of warfare. People
17 kill each other in combat. But he denies, and I ask, specific acts that
18 would have been indicators of atrocities or shooting unarmed,
19 surrendering soldiers and so on, that these acts were within the confines
20 of conventionally understood combat.
21 What was the next part of your question, please?
22 Q. Well, before he -- there was a point in time where he was I guess
23 detained in Uzice prison in Serbia
24 A. Yes. He was --
25 Q. And I'm referring you to page 20 of your report.
1 A. Okay. He was arrested and detained and spent some time -- page
2 20. Can you show me what paragraph you are, please?
3 Q. [Microphone not activated] ... right there, first paragraph or
4 first full paragraph.
5 THE INTERPRETER: Microphone, please.
6 MR. ALARID:
7 Q. Sorry. Didn't turn on my microphone. First paragraph, middle of
8 the paragraph.
9 A. Okay. Yeah. He described that he'd been arrested and in his
10 view set up by the authorities. Then he was taken to prison in Serbia
11 He spent eight days there and then was returned to Visegrad, and his view
12 is that the purpose of this brief imprisonment was to send him a message;
13 and he described how scared he had been by that message, and he referred
14 back to this is the sort of thing that you would have expect to see in
15 the Stalinist era, but it was happening now.
16 Q. That's fine. And just basically, what did he disclose to you
17 about chain of command, the authority structure that he was obligated to?
18 A. You know, I'd have to look at my notes, quite honestly. He
19 offered many, many details about that, and I couldn't keep track of every
20 single individual in the order and so on. What I noted to myself was
21 that obviously in his perception there was a chain of command. It was
22 very -- he had pretty extensive knowledge of that chain of command of
23 these individuals and their roles and responsibilities and their
24 behaviors. He was eager to be able to disclose what he knew about that
25 chain of command, and I -- you know, one hypothesis I entertained was
1 that just as it's easy to try to push responsibility down the chain of
2 command, it's also easy to try to push it up the chain of command. So I
3 wasn't sure if, is he simply trying to distance himself by blaming it on
4 superiors? So there was a lot of the details I did not get about exactly
5 who related to who.
6 Q. And tell us about his -- as we're on page 21, his reflections on
7 his war experiences and time behind enemy lines.
8 A. The gist of this is that Mr. Lukic felt -- it was reported to me,
9 that he had done his duty, but he had not enjoyed the war. And after he
10 had taken his first life in combat, he realised, and sometimes one
11 doesn't realise until you've done this, he realised that he really didn't
12 want to take more life. But nevertheless, he was a very active
13 combatant. He was at times fearless or even reckless, I would say. He
14 became very active as a fighter and sometimes would say, in quotes, We
15 hit them very hard. So he was a warrior, but again denies to me engaging
16 in acts that might be considered atrocities or outside the scope of
17 legitimate acts of war.
18 Q. You qualified by saying denies to me. I'm sure you're going to
19 get touched upon by that statement and what it means to these
21 A. Well, I'm not quite sure what else to say about it other than
22 this is what the man is telling me, but what he's telling me is a
23 consistent narrative all along.
24 Q. The next -- on page 24, the next section of your report is the
25 effect of propaganda on his perceptions. Why would you give this its own
1 separate heading?
2 A. I want to ask about propaganda because I had read in my own
3 background reading about the environment at the time that propaganda had
4 played a very prominent role in the degree to which it influenced ethnic
5 polarisation and mobilisation of tensions and hatred. Various groups
6 would use their own propaganda media to fuel dissent and demonise the
7 other groups; so I wanted to get a sense of to what degree had Mr. Lukic
8 himself been not only subjected to propaganda but to what degree had he
9 internalised it and had used it as an operating motivator for his own
10 behaviors. And he did explain know that the propaganda, the information
11 that was coming into the area at the time was dominated by the Serbs, and
12 so he was getting whatever was on offer from that source.
13 But he also had gone on to tell me that he didn't feel that he
14 had been necessarily overly influenced by it. I mean, I think at one
15 point he had said, you know, Only the rural peasants, really, would be
16 influenced by this kind of stuff. So he was neither an ardent
17 nationalist or culturalist or idealist before the war, and by -- again, I
18 find no evidence that the propaganda had turned him into one. It may
19 have had that effect for some people but not for him. He had lived too
20 long in a multicultural society to believe in some of the more
21 primitively tinged ideas that were being propagated. He did see a number
22 of quite horrific images that were portrayed on the television, of all
23 places of --
24 Q. And --
25 A. Yeah.
1 Q. And where I was going to go with that is simply that -- what --
2 what relevance is it that he says that only rural peasants, but he came
3 from a modest rural background. Did you incorporate that into your
5 A. Well, I think one line of reasoning would be that he wanted me to
6 know that he had risen up, that maybe that was his humble origin, but he
7 had risen above that. I mean, this was a man who had gone to school,
8 unlike some peasants. He traveled in Europe. He had seen the world, and
9 he had made his way, and he had had productive work far away from the
10 peasant origins; and he had interacted with people from all over the
11 world of all walks, and he had met a girl who was from an
12 upper-middle-class family that he was going to marry, so he really wasn't
13 that peasant anymore.
14 Q. Now, the next section on page 26 that you touch on is an
15 important one because it involves an incident that also resulted in an
16 in absentia criminal conviction, if you will or an incident. Yes, so
17 you touch on that, though, and why did you touch on that specifically?
18 Was that by your prompting or the reporting of the witness?
19 A. Well, let me say this incident which I had labelled as the bus
20 incident refers to the - if I'm pronouncing this correctly - the Severin
21 village. I didn't ask about this. In fact, I didn't have records about
22 it, so I didn't know about this. This is what was report to me by
23 Mr. Lukic, and the reason I put it in is because in the course of the
24 interview, this became something that he felt was very important for me
25 to understand, to get a sense of not only allegations that he's
1 confronted with but also his involvement in an incident. But in the
2 course of an interview, especially building rapport with a client,
3 sometimes you do have to let them have a little latitude; and this was
4 important enough for him that he want to talk about it, so I was willing
5 to allocate the time. Let's talk about this, then, if you want to tell
6 me. He felt it was important for me to have that information if I'm
7 going to understand him, and so I documented that discussion.
8 JUDGE ROBINSON: Thank you.
9 Mr. Alarid, I should tell you that the estimated time for
10 examination-in-chief is three hours, and at ten minutes after 7 you'll
11 have exhausted that period.
12 MR. ALARID: Okay.
13 JUDGE ROBINSON: You must conclude the examination-in-chief by
14 that time. Three hours is more than enough. You must learn to manage
15 your time.
16 MR. ALARID: Well, I was trying to, Your Honour, and just
17 considering we had four topics to discuss, this is the most important
18 considering it involves the accused, Your Honour, and if it does bleed
19 over into tomorrow, I hope that you would be indulgent, but I will do my
21 Q. How did you incorporate the Severin incident into your analysis,
22 if any?
23 A. At this point, I don't know that I've fully incorporated it yet.
24 I don't think my understanding of Mr. Lukic is as complete as I'd like to
25 have it. I haven't had a chance to reconcile what he's told me about
1 this event with other records and so on. What I could say at this point
2 is that this is an effort to -- he wants to be understood, and he saw me
3 as somebody who might be capable of understanding him.
4 So whatever is involved with this incident has high value and
5 high meaning to him, and he wanted to give this to me. I don't know what
6 I will do with it yet, but he want to give that to me, and sometimes an
7 interview, it's almost like a gift, when a client wants to give you this
8 piece of information that you didn't know about and hadn't thought about
9 inquiring into.
10 But he wants me to know, I think, that his roles in this region
11 of the world at the time were complex and multifaceted; that there were
12 times when he tried to help people, and he feels that he paid a price for
14 Q. Moving forward to page 29. It's the first -- where you first
15 beginning your interview confrontations. Tell us about that, and why is
16 that important in this type of situation?
17 A. Well, it was important because I want to begin to take a first
18 pass at beginning to confront him with some of the obviously glaring
19 discrepancies that would be evident between what I'm reading from the
20 records and what he's telling me in interview. And I point blank ask him
21 about the magnitude of the -- oh, okay. I wanted to just see how he
22 would begin to respond to confrontations, the difference between what
23 he's told me and what the world is saying. And I -- this is an area that
24 needs to be explored more, I think. So I think his first reaction was
25 somewhat defensive, but, you know, describing that, They've accused me of
1 having tattoos, being a drinker, having blue eyes and so on,
2 misidentifications. And he again denied involvement with the
3 White Eagles. When I confronted him about all these charges, I mean,
4 basically that they're not true. So that's the first attempt at trying
5 to ferret out what is and what is not the case with him.
6 Q. When you say first attempt, why do you say that?
7 A. Because I think in a case like this, to really understand this,
8 you need multiple attempts. When I mentioned earlier in testimony the
9 Zinc case, for example, I interviewed that client on a number of
10 occasions before we got to crime scene information. So it would be
11 unrealistic, really, to expect at this point anything more than I think
12 what we got first time around.
13 Q. Well, and I'm sure you're going to be confronted with the issue
14 of the accused has an interest in possibly misdirecting you as a
15 potential expert witness or a clinician. How do you accommodate for
17 A. I think that's always a valid question. I mean, that's a
18 first-line assumption. In many cases, that's true, but I think it's an
19 open and empirical question as to how that is ultimate -- those issues
20 are ultimately resolved. I myself would probably make some kind of
21 assumption like that, too, but eventually the data will tell the story.
22 Q. And so let's get into the data. The next section starting at
23 page 31 is the results of the psychological testing. Why don't you take
24 us through what you're looking for, and this is where we can go step by
1 A. Okay. I want to -- with the testing, and I use the testing to
2 supplement the interview, I wanted to get some rough measurement, as it
3 were, about his functioning outside of direct interview; and I brought a
4 number of instruments which I'm comfortable with, I've been trained on,
5 and in my training in the past, I've -- especially at the Menninger
6 clinic, we had patients coming from all over the world, so we had to have
7 a methodology to accommodate to them. And the rationale there are there
8 really aren't many instruments outside of those that we know and use in
9 North America that we know and understand, so we have to use what we have
10 and acknowledge limitation and so on.
11 Yes, obviously, with the first one, the Wechsler Abbreviated
12 Scale of Intelligence, of course, this is normed on a North American
13 population, but it does provide a rough indicator of non-verbal
14 intelligence; and I made a clinical decision to use that. I didn't use
15 the verbal components because it would be confounded by language
17 The finding on this was that within a confidence interval of
18 95 percent, his intelligence would fall somewhere within a range of 79
19 and 90. But I also -- but his activities of daily living and his level
20 of academic achievement, reported history would probably put him
21 somewhere within the average range. I think it would be very unlikely to
22 see this man had above-average intelligence. Also, the non-verbal test
23 also can give rough indicators of organic problems if there are problems
24 with managing some of the visual spacial motor tasks. That wasn't
1 I also was very -- realised I really need to look at personality
2 issues, issues that could be somehow looked at that would have some
3 validity across time, so I looked at -- okay. I deployed several
4 instruments that would be helpful in that regard. I used the Structured
5 Clinical Interview for DSM-IV Axis II Personality Disorders. I went
6 through that instrument with him. And I also made a particular effort to
7 focus on anti-social personality as well as narcicisstic personality; and
8 I didn't find a diagnosible diagnosis from there. Certainly not of these
9 two particular personality disorders, each of which would have probably
10 the most relevance to the accusations.
11 The Incomplete Sentences Blank is also something that I routinely
12 give. It can be administered rather frequently -- or excuse me, rather
13 quickly, but it also can capture in a very expedient fashion certain
14 attitudes and concerns that a client might have and here other than his
15 comments about regretting having being part of the war there was nothing
16 no other --
17 JUDGE ROBINSON: Doctor, we only have another ten minutes.
18 THE WITNESS: Okay.
19 JUDGE ROBINSON: Did you do anything in relation to leadership
21 THE WITNESS: No, sir. The leadership -- well, several things.
22 One is from the MCMI, that's the next test down, the findings I got from
23 that are that while he's certainly a very compulsive man and strives to
24 please and wants to put his best foot forward, that, again, he's more
25 than a follower than a leader, but he wants to please authority.
1 But aside from that, I think -- you also have to look at the life
2 course itself, and that may be even the most accurate indicator, I think,
3 and as best I can tell, throughout the life of this man, I find no
4 indicators that he has assumed any -- any position of leadership, nor has
5 he initiated any kind of project or instilled some sort of motivation in
7 The level of his work has all been low-level work-a-day. In
8 school and other places, he has described himself as the man in the
9 middle, the undistinguished middle, the man in the middle, the
10 undistinguished man is not the leader. He's the follower or he's the man
11 that goes with the flow, but he's not the leader of the flow. My best
12 construction of this man with all the data is that he's a follower and
13 not a leader.
14 Now, that's the best I can give you, sir, is that I don't see --
15 usually with a leader, they will begin to differentiate themselves even
16 quite early in life or maybe with certain circumstances they will begin
17 to surge forward and show that leadership capability. It's not there,
18 nor has he been through any kind of training opportunity other than,
19 perhaps, the military that would have afforded the opportunity to learn
20 leadership skills, but even in the military, he was a low-level, enlisted
21 man who made no particular effort to advance beyond what was expected of
22 him. He didn't take on extra initiative or apply for office or candidate
23 school or do anything that a leadership man, even of humble origins,
24 would want to do to rise and become a leader.
25 JUDGE ROBINSON: Thank you.
1 Mr. Alarid, you had planned to ask questions about leadership, I
2 take it?
3 MR. ALARID: Yes, sir.
4 JUDGE ROBINSON: Are you satisfied with that?
5 MR. ALARID: Well --
6 JUDGE ROBINSON: Because you only have another three or four
7 minutes. I have to deal with some administrative matters.
8 MR. ALARID: Okay.
9 Q. Just with regards to the literature that you revolved yourself
10 around in terms of this, you've used the term "ordinary man."
11 A. Okay.
12 Q. What would we talk about with regards to the ordinary man?
13 A. Sir, let me just try in a very quick, condensed way summarise the
14 relevant literature regarding this kind of phenomenon.
15 JUDGE ROBINSON: How is it relevant in you're saying the accused
16 is an ordinary man?
17 THE WITNESS: By and large, yes.
18 JUDGE ROBINSON: Okay. Well, you must get that evidence. The
19 thing is not in a vacuum. We're not here to study the personality of
20 Mr. Lukic, only what is relevant.
21 Yes. Go ahead.
22 THE WITNESS: The quest to understand who are the perpetrators of
23 genocide really followed World War II when people were looking for the
24 so-called Nazi personality. The assumption at the time was that these
25 people must be either extreme psychopaths or deeply psychologically
1 disturbed, or how else would you explain their kind of behavior? The
2 problem that emerged from that is upon examination of most of these men,
4 than their being monsters, they were by and large ordinary men who did
5 not deviate outside a relatively narrow range of ordinary
7 JUDGE DAVID: Maybe I interrupt you for a minute. Have you
8 discussed in your report, or are there some reference in relation to what
9 a normal course, the authoritarian personality?
10 THE WITNESS: That is an excellent question, sir. I did not
11 reference it in the report. I looked at some of the authoritarian
12 personality literature that came out right after World War II at the
13 University of California
14 certainly looking for the kind of man who could -- the authoritarian man
15 who would be hypercathetic to these organising ideas, Naziism or whatever
16 have you, and follow that blindly, so to speak; but at this point the
17 status of the authoritarian personality and the research that went with
18 it I think is by and large fallen by the wayside, but it's a very useful
20 JUDGE DAVID: You in answering Judge Robinson saying that there
21 are a strong compulsive features, and it's also in your report. Could
22 you elaborate more about the type of compulsion?
23 THE WITNESS: Okay. I don't mean compulsion in the sense of the
24 kind of behaviors you might see with obsessive hand-washing and so on nor
25 strong internal ruminations as obsessive compulsive disorder. I'm really
1 talking about obsessive compulsive personality features, and that would
2 be manifested in a number of ways.
3 One was in the interview itself, he would often dilate on a
4 number of what seemed to me very irrelevant details, but lots of details.
5 It was very important to him to make sure that I got all the little
6 details, so there was a hyper focus on minutia at the expense of the
7 bigger picture. That's part of an obsessional character style.
8 Also his defensive organisation was very much consistent with the
9 obsessional character. Rationalisation, for example, these are higher
10 lever neurotic-level defences. I'm speaking to a fellow psychoanalyst, I
11 think. Sublimation, the things that you would expect to find with the
12 obsessive character and then also the testing itself demonstrated yet
13 another way to look at this, another facet of this. So when I start
14 putting all this together, I'm really looking at a man who's quite
15 obsessionally organised but not pathologically so. He's not to the point
16 where he's engaging in obsessive compulsive behaviors which can be quite
17 destructive to a person. Sorry.
18 JUDGE DAVID: Okay. Thank you.
19 THE WITNESS: Okay. May I finish, Your Honour, real quick?
20 JUDGE ROBINSON: Yes, okay, just conclude.
21 THE WITNESS: The long and the short of the quest for the Nazi
22 personality is that it really became quite fruitless. There needed to be
23 a way to find an alternative explanation for how do we understand these
24 men? People began to look at things like the environment or social
25 situations or the role that people were put in maybe as an alternative
1 explanation for this kind of phenomena. There are a number of studies,
2 kind of classic lines of research that came out of this.
3 One of the ones that I looked at quite a bit was the Milgram
4 studies. Stanley
5 undergraduates, these are the cream of the cream, no legal history
6 whatsoever, who would be encouraged --
7 JUDGE ROBINSON: What are you saying in relation to the accused?
8 THE WITNESS: Okay. What I'm saying to the accused by and large
9 is this is a man who's quite obedient to authority.
10 JUDGE ROBINSON: Thank you very much.
11 Now, Mr. Alarid, you've spent the entire day, three sittings. I
12 do not consider it in the interest of judicial economy to allow you to
13 continue the examination-in-chief. You have had enough time.
14 I want to deal with the question raised by the Prosecutor, I
15 think, but then I need Ms. Sartorio first to tell me, how long will you
16 be in cross-examination? Not as long as the examination-in-chief, I
18 MS. SARTORIO: At least two hours, Your Honour.
19 JUDGE ROBINSON: At least two hours.
20 MS. SARTORIO: Yes. I would like two hours.
21 JUDGE ROBINSON: And who is your next witness, Mr. Alarid, after
23 MR. ALARID: Clifford Jenkins, Your Honour.
24 JUDGE ROBINSON: [Microphone not activated]
25 THE INTERPRETER: Microphone, please, Your Honour.
1 JUDGE ROBINSON: I'm sorry. How long will that be?
2 MR. ALARID: I was hoping two hours.
3 JUDGE ROBINSON: Two hours. Yes. And after that?
4 MR. ALARID: For this week, we're hoping Mr. Rasic will be here.
5 I don't know if we've gotten confirmation from VWS yet, but we were
6 trying to arrange that. If not, Mr. Jenkins would be our final witness
7 of the week and that I would be calling. The issue of -- except for the
8 subpoenas, which are still in play. Other than that, Your Honour, the
9 only loose end would be Dr. Andersen, and who's -- like I said, his
10 testimony was blocked by the Department of Defence upon some impetus, and
11 so we would be making a motion simply for the report to come in as based
12 on for what weight it serves the Court, and that would be our position
13 with that.
14 JUDGE ROBINSON: So you said you were going to submit a motion on
15 the 92 quater.
16 MR. ALARID: Yes. I just haven't had time. I was hoping to -- I
17 find we're going to have a double session tomorrow and I was hopefully
18 going to do it in the morning.
19 JUDGE ROBINSON: No, there's no double session. We are
20 sitting --
21 MR. ALARID: Okay. It was on the calendar, so I was worried
22 about that.
23 JUDGE ROBINSON: [Overlapping speakers]
24 Mr. Groome?
25 MR. GROOME: Your Honour, just so there's no ambiguity, it seems
1 that something Mr. Alarid said except for the subpoenas, am I to take it
2 Milan Lukic will not be testifying; if it's still planned to call him,
3 when would that be?
4 MR. ALARID: It would be at the end, and we haven't proofed him.
5 I haven't had time to spend much time in the gaol with him during this
6 experts week.
7 JUDGE ROBINSON: Mr. Alarid, did you have any other mater to
8 raise with this witness? And if so, what is it?
9 MR. ALARID: The only thing I was going to ask him to extrapolate
10 on and I'm not sure what time it would take, would be why Milgram and its
11 progeny are so important to the war crime scenarios that we might be
12 experiencing relevant to this situation.
13 JUDGE ROBINSON: What's Milgram?
14 MR. ALARID: Milgram was the report that he just referenced,
15 Your Honour, and it's a set of studies and follow-up studies involving
16 leadership and following orders --
17 JUDGE ROBINSON: We have asked him about leadership. That's the
18 end of your examination-in-chief. Mr. Alarid, tomorrow Ms. Sartorio will
19 begin her cross-examination.
20 We are adjourned.
21 MR. GROOME: Your Honour.
22 JUDGE ROBINSON: Yes.
23 MR. GROOME: It seems now that it will be impossible for the
24 Prosecution to call any evidence on Friday. Am I correct? Can I tell
25 Dr. Fagel that he should not try to --
1 JUDGE ROBINSON: What was your estimate, Mr. Alarid? What advice
2 would you give the Prosecution?
3 MR. ALARID: I think just given Ms. Sartorio's opportunity and
4 the next witness, I think that's a very reasonable assessment.
5 JUDGE ROBINSON: Yes.
6 MR. GROOME: Your Honour, I would just also state that I have no
7 objection to taking it out of order, so if we're going to find ourselves
8 with some free time on Friday, I'm happy enough to use it efficiently by
9 calling Dr. Fagel. It's just it's hard for me to estimate whether we
10 will have free time or not.
11 MR. ALARID: I think realistically with us not having a double
12 session, I think that's fair that the week is full.
13 MR. GROOME: Your Honour, I believe there is a double session on
14 Friday, is there not?
15 JUDGE ROBINSON: Yes, there is a double session on Friday that he
16 could use.
17 MR. ALARID: And that's -- well, assuming Mr. Rasic is here, that
18 would fill that time definitely.
19 [Trial Chamber and legal officer confer]
20 JUDGE ROBINSON: Mr. Groome, I'm reminded that the -- in the
21 decision that we issued today, the calling of Dr. Fagel will be dependent
22 on certain documents being produced by other witnesses, and those
23 witnesses have not yet been called. Those are I think three witnesses
24 who are to be called by you. Perhaps you haven't seen the decision in
25 its entirety.
1 MR. GROOME: Your Honour, I mean, technically, that would be the
2 proper order. It's also possible just to mark them for identification
3 and then they never make their way into evidence until the foundation for
4 them is established, but I'm happy to -- I'm just trying to offer
5 suggestion for the Chamber to use the time efficiently.
6 JUDGE ROBINSON: Yes, Mr. Alarid.
7 MR. ALARID: One housekeeping, Your Honour. I sent a letter
8 submission to the Chambers regarding Ms. Marie O'Leary having special
9 permission to lead Clifford Jenkins. Marie O'Leary. She was my legal
10 assistant and case manager. She sat to my left for the first part of the
11 trial. I was going to give her the opportunity to examine our policeman,
12 and if the Court would allow special dispensation for that fact, that's
13 all we'd be asking.
14 JUDGE ROBINSON: Why is there a special dispensation? Is she not
15 an attorney?
16 MR. ALARID: She is an attorney. Absolutely.
17 JUDGE ROBINSON: She is?
18 MR. ALARID: She is. Of course. She's a licensed attorney since
20 JUDGE ROBINSON: And she meets the standards of our Rule --
21 MR. ALARID: She doesn't have her seven years of criminal law
22 experience, but I think she's a competent attorney and can practice law
23 before the Tribunal.
24 JUDGE ROBINSON: Mr. Alarid, you're always presenting these
25 little problems. We'll have to deal with that. I can't give you an
1 answer to that now.
2 MR. ALARID: Thank you, Judge.
3 JUDGE ROBINSON: Mr. Groome, I would say bring Dr. Fagel.
4 MR. GROOME: Yes, Your Honour.
5 JUDGE ROBINSON: Yes. We are adjourned.
6 --- Whereupon the hearing adjourned at 7.16 p.m.
7 to be reconvened on Thursday, the 26th day of
8 March, 2009, at 2.15 p.m.